Just over a week ago, the Supreme Court’s decision in Holland v. Florida eked out a stingy ruling to allow equitable tolling to apply when a defendant, not due to any fault of his own, failed to meet the time limitations that Congress superimposed on the Great Writ of Habeas Corpus when the rest of us weren’t looking, our eyes preoccupied with the sight of the ruins of the Alfred P. Murrah Federal Courthouse.
In contrast, the 11th Circuit decision in Gilbert v. U.S. shows what a court can do if it respects the robust constitutionally protected right of habeas corpus. The procedural background is quite extraordinary. Ezell Gilbert was sentenced as a career criminal, despite his arguing that a prior weapons conviction wasn’t a “crime of violence.” He appealed and lost. He moved for rehearing and was denied. He petitioned for cert and was denied. He brought a pro se 2255 (the federal habeas statute) and was denied, with both district and circuit courts refusing a certificate of appealability. This is as end-of-the-road as it gets.
Then, the Supremes decide Begay v. United States, 128 S. Ct. 1581 (2008), holding that violent felony means actually violent, and not just theoretically violent, for career criminal status. The 11th Circuit then rules that weapons possession doesn’t make for a career criminal, and in its decision actually reverses the holding in the decision on Gilbert’s appeal. Everybody’s happy, except Gilbert, who is still imprisoned even though he would have completed his sentence but for the career criminal enhancement. Talk about a set-up.
From the new decision, via Doug Berman :
The government’s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government’s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law. The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.[FN7]
[FN7] “Let right be done, though the heavens should fall.” Branch. Princ. 161.
The court just did the right thing despite the fact that the machinations that Congress imposed on the Great Writ make it wrong. This is an activist court. This is a court that just told the “rules committee” to go screw itself. The bean counters and hand-wringers were given the kiss off.
The 11th Circuit decided that this was just too unjust for it to stomach, and it didn’t. God bless America. At least this time.
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After I read this post, I read both Holland and Gilbert. These are questions, not comments. I really would like to know your thinking on this.
First, don’t prosecutors have any discretion in cases like these? In Gilbert, instead of going into court and admitting that the guy isn’t getting treated fairly, wouldn’t it have made more sense to stand back, shut up and let him have his writ? Now they have an opinion they have to deal with.
Second, why did you say this is an activist court? It’s the same court that got overruled by the Supremes in the Holland case. Weren’t they going to let Holland die because his lawyer was merely incompetent, not criminal, when he missed the deadline in spite of Holland’s diligent nagging? I love the language you quoted from Gilbert, but didn’t they come awfully close to restricting the holding to the exact facts of Mr. Gilbert’s case? Are they more activist on criminal issues than some other circuits?
To your first question, absolutely. There’s nothing that requires the government to fight the habe. And yet they did. That was their choice to do so.
To your second, of course the circuit isn’t really an activist court. It’s not the 9th. But at least it did the right thing in one case for one defendant, which is more than one expects out of any circuit court anymore. I try to encourage the positive. It’s not much. In fact, it’s next to nothing. But it could have easily gone the other way. At least Gilbert was saved. Let’s give them props for that, and maybe they will save another defendant some day.
Thanks.