Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion this week declaring that the process in her court wasn’t working.
Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.
But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.
UPDATED -- You can get some pretty interesting stuff just about every day from the slew of Johnson orders coming out. Here's Judge Ed Carnes' concluding paragraph from a concurrence today in In Re Emilio Gomez:
And, as the order states, “[s]hould an appeal be filed from the district court’s
determination, ‘nothing in this order shall bind the merits panel in the appeal.’”
Maj. Opn. at 8. Nothing.