Monday, May 20, 2013

Split Widened: Can a Court Bypass Rooker-Feldman to Dismiss on Merits?

Per Cawley v. Celeste (8th Cir. May 9, 2013)

Rooker-Feldman is one of the more esoteric doctrines of federal jurisdiction.  In brief, it prevents state court losers from using a federal case to appeal their defeat.  Importantly, in 2005's SABIC decision, the Supreme Court clarified that the doctrine is statutory, based on 28 U.S.C. 1257, not constitutional.

Nearly every time that Rooker-Feldman could apply, the federal defendant will also have a strong preclusion defense.  After all, for Rooker-Feldman to apply, there must already be a state court decision on the issue.

The circuits have split on whether district courts must adjudicate the Rooker-Feldman jurisdictional issue first, or may reach the preclusion issue on the merits without determining jurisdiction.  The CAs 3,6,and 7 all have published decisions saying that Rooker-Feldman must go first, and the CAs 9, 10, and 11 agree in unpublished decisions.

On the other hand, this CA8 opinion joins  published opinions from the CAs 1 and 7 (yes, the CA7 has published on both sides), and unpublished authority from the CAs 2, 3, and 10 (the latter two demonstrating another intra-circuit split) to hold that the court may reach the merits.

The CA8's reasoning is so clearly correct that I cannot improve upon it:

Steel Co. acknowledged that a federal court may reach a merits question before deciding a statutory standing question because the merits inquiry and the statutory standing inquiry often overlap, and it would be artificial to draw a distinction between the two.  That rationale may not support bypassing all questions of statutory jurisdiction.  But we think it does allow a federal court to decide a question of preclusion without first resolving a murky problem under Rooker-Feldman, because our inquiries under preclusion law and the Rooker-Feldman doctrine would similarly overlap.
(p. 6 (citations omitted).)

Indeed, the interplay between Rooker-Feldman and preclusion seems to fall perfectly within footnote 2 of Steel Co.  A court should, in the interests of judicial economy, be permitted to bypass a difficult Rooker-Feldman question if the preclusion result is much simpler.

On an aside--and part of my reason for selecting this case for comment--the topic of Rooker-Feldman allows me to pay tribute to my favorite legal publication, The Green Bag.  Right after SABIC and another Supreme Court case, the journal published an amusing obituary for the entire Rooker-Feldman doctrine.

Wednesday, May 15, 2013

Split Created: Does 2255(e)'s Savings Clause Apply To Past Misapplications of the Guidelines?

Per Brown v. Caraway (7th Cir. May 10, 2013)

Royce Brown always maintained his arson conviction was not a crime of violence.  Turns out, under Begay, he was right.  But Begay came much too late.  Brown was sentenced in 1996 as a career offender (adding several years to his sentence) based in part on his arson conviction.

Ordinarily, after Begay, Brown could have filed a 2255 motion to challenge his sentence.  But Brown had already filed--and lost--a 2255 motion in 2000.  And 2255(h) bars second or successive motions.

Brown nonetheless sought to profit from Begay and filed a 2241 petition for habeas corpus.  But 2255(e) bars consideration of habeas petitions, unless a 2255 motion  "is inadequate or ineffective to test the legality of his detention."  (This quoted text is often referred to as the "savings clause").

In this case, the CA7 creates a circuit split by holding that the savings clause applies, and permits a habeas petition.  The CA 11 (en banc) and CA5 had previously concluded--also in the context of 2241 petitions based on Begay--that the savings clause did not apply.

I am of two minds.  On one hand, equity favors allowing some relief where a sentence is manifestly in error.  On the other, considerations of finality must trump at some point.  I lean slightly to the CA11 and CA5's view that the  savings clause does not apply because 2255 procedures are in fact effective and adequate, but unavailable only because of a previous collateral attack.

I lean that way in part because--unlike the CA7--I do not think this conclusion leaves prisoners without a remedy.  Even if both a 2255 motion and a 2241 habeas petition are unavailable, a prisoner could file a petition for a writ of coram vobis (not nobis, as discussed below).

As this blog has discussed earlier, coram vobis requires:

  1. a fundamental error in the prior proceedings
  2. reasonableness in not having acted earlier (i.e., though habeas)
  3. collateral consequences from the prior proceedings (standing)
  4. interests of justice require granting the writ (no alternative remedy)
Here, application of the career enhancement is a fundamental error increasing the sentence.  Brown both preserved the issue by objecting in the initial sentencing and acted reasonably in raising it again soon after Begay was decided.  Brown's lengthened sentence provides standing.  And--if both 2241 and 2255 are not available--there is no alternative remedy.

Thus, I ultimately come out at the same point as the CA7, but would use a different procedural tool to get there.  I feel that this procedural tool does less damage to the "second or successive" bar.  But I am not a criminal lawyer, and there may be something I am missing.

On a total aside, I am surprised that the vast majority of U.S. courts call the writ "coram nobis" (before us) rather than "coram vobis" (before you).  The names do not imply a difference in procedure or remedies.  Rather, the distinction arose in English common law depending on whether a writ petition was filed before the King's Bench--where the King was supposed to preside, and so using the royal "we/us"--or Common Pleas, where the King did not preside, so the writ was only before "you" judges.  As America has no king, it would appear that "coram vobis" is more appropriate.

Friday, May 10, 2013

Split Noted: Effect of Failing to Object to a Magistrate's Report

Per Dupree v. Warden (11th Cir. May 7, 2013)

The CA11 requires a district judge to rule on all grounds raised in a habeas petition.  Here, the magistrate overlooked one claim.  The petitioner did not object, and the district court accepted the magistrate's report.

This CA11 panel does the right thing, and abides by panel precedent requiring a finding of reversible error.  (p. 8-9.)  In so doing, however, the panel notes that the CA11 is an outlier in a three-way circuit split regarding the effect of failing to object to a magistrate's report, and recommends an en banc to shift position.  (p. 14-19.)

Most Lenient:  The CA11 rule, which is the same as the CA8 and CA9, holds that failure to object has no effect on the de novo review of legal issues.  For factual issues, the CA11 and CA8 employ plain error review (see middle paragraph below), while the CA9 deems such objections waived (see strictest paragraph).

Middle:  The CA3 and CA5 always employ plain error review for both factual and legal issues.  They permit reversal if the appellant can show (1) plain (2) error that both (3) affects substantial rights and (4) undermines the fairness or integrity of judicial proceedings.

Strictest:  The CAs 2, 4, 6, 7, and 10 apply a firm waiver rule.  Failure to object waives appellate review of both factual and legal issues.  Such waiver may be waived by the court in the interests of justice, and does not apply if the magistrate does not warn of the effects of failing to object.

Here the panel recommends adopting the strictest approach.  I agree.  A number of considerations support this approach.

First, judicial economy, as the Supreme Court stated in Thomas v. Arn, 474 U.S. 140 (1985)--a decision affirming, but not requiring, the CA6's strict approach.

Second, if--as required--a magistrate warns of the effect of failing to object, then the failure to object is indeed the intentional relinquishment of a known right.  United States v. Olano, 507 U.S. 725 (1993).  And even if only done by counsel, counsel is an agent for the party, and the party is responsible for the failings of his counsel.  Link v. Wabash R.R. Co., 370 U.S. 626 (1962).  Such waiver argues against the middle-ground approach of the CA3 and CA5.

Third, imposing a waiver rule is not jurisdictional, so appellate courts still retain authority to correct manifest injustices.  Hormel v. Helvering, 312 U.S. 522 (1941).

Fourth, adopting a waiver rule would bring Civil Rule 72 in line with Criminal Rule 59, adopted in 2005.

In sum, all indications point to adopting the strictest rule.  And while the CA11 may go en banc to adopt that approach, the rulemaking committee should make the waiver rule explicit in civil rule 72, as it did in criminal rule 59.  That would spare the resources necessary for the CA8 and CA9 to also go en banc to adopt this appropriate rule.