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"Pumping all the pedals on the prose organ"

Yesterday's decision of the Eleventh Circuit in Gilbert v. United States is getting some discussion in the blogosphere, mostly because of the overwrought dissents.  As the majority opinion by Judge Carnes puts it,

Pumping all the pedals on the prose organ, they charge that by disagreeing with them on this legal issue, we have not only "neglect[ed] our responsibility," "shirked our duty," and "diminish[ed] the institution of the federal courts," Dissenting Op. of Martin, J., at 94-95, but have also "adopt[ed] a posture of judicial impotency that is shocking" and that "emasculates" this Court, Dissenting Op. of Hill, J., at 102, 104, and in the process we have rendered the judicial system "morally bankrupt," id. at 104, and converted the United States into a system of "'gulags,'" id. at 105. That is not our intent.
But of course the decision has done none of those things.  It has simply enforced a clear and clearly constitutional law.
For both state and federal prisoners, Congress has severely limited a second habeas or §2255 petition by those who have already had one.  The "actual innocence" exception is expressly limited to guilt of the offense, not sentencing claims, and the "new rule" exception is expressly limited to constitutional rules, not statutory ones.  See 28 U.S.C. §§ 2244(b)(2) & 2255(h).

So along comes habitual criminal Ezell Gilbert.  At the time of his sentencing, two habitual criminal provisions applied -- a mandatory life sentence under 21 U.S.C. §841(b)(1)(A) and a lesser but still stiff career offender boost under the then-mandatory Sentencing Guidelines.  The government agreed to dismiss the mandatory life sentence notice and he got the career offender sentence.  Years later, after his appeal and §2255 review were final, case law changed so that he would not have been eligible for the lesser career offender guideline he was sentenced under.

Can he file a successive §2255 petition?  No, he does not meet the criteria Congress specified.  The deliberately chosen words "guilty of the offense" and "rule of constitutional law" leave no doubt that Congress intended to exclude claims that go only to sentence and new rules interpreting nonconstitutional sources of law, including statutes, rules of court, and guidelines.  Does that mean he can file a habeas corpus petition, which federal prisoners can do as a collateral attack only when §2255 is "inadequate or ineffective"?  Of course not.  That would mean that Congress's limits on successive petitions mean nothing in federal prisoner cases.

Does this violate the Suspension Clause?  Of course not.  As Judge Pryor explains in his concurrence, the Suspension Clause is for the writ as it existed when that clause was enacted, which did not include collateral attacks on convictions entered by courts of competent jurisdiction.

Is there a remedy in an appropriate case?  The government can waive the limitations on successive and untimely petitions, as they are not jurisdictional.

Is this an appropriate case?  No way.  This is a guy who received break after break after break and spit in the face of society's mercy every time.  Even in the present case, the government generously allowed Gilbert to receive a lesser sentence than it might have insisted on.  Having already received the leniency of the lesser alternative, he should not be able to go back and undo it now.

So what's with the hellfire and brimstone from the dissents?  It's a variation on the old saying -- When the law is against you, bang the facts.  When the facts are against you, bang the law.  When both are against you, bang the table.


I think the hellfire and brimstone is the fact that the dissenters are hell bent on releasing a criminal. And it sure looks like Bush 43 picked right when he picked Pryor.

This would be an appropriate case for clemency. I don't think there would be serious issues with it--certainly, the Executive could decide that the specter of a criminal serving a now illegal sentence is not proper. (Not a decision I would make.)

Why is it that liberal judges get in such high dudgeon over a guy who, at the end of the day, got a good deal, even if his sentence is now illegal. There is no injustice here--that's for sure.

Speaking of the 11th Circuit. Georgia is switching to pentobarbital. Troy Davis may get an execution date soon, and his last-minute appeal will go thru the 11th Circuit.

I remember when the panel decision came out about a year ago — I thought it was pretty odd, and likely to be reversed en banc. The Eleventh is probably the most consistently conservative circuit in the country (maybe tied with the Eighth). For a long time Barkett was the only liberal judge; Martin began writing quite a few dissents/concurrences from the left as soon as she joined last year, and seems intent on making an impact. I’m not sure this case is the most convincing place to do it, though.
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