By Don J. DeBenedicits
Associate Editor
Fulton County Daily Report
June 4, 1996
WASHINGTON - U.S. Supreme Court justices battered a contention by an attorney for the state of Georgia Monday that the high court's authority to hear habeas corpus petitions has been vastly curtailed by a new federal law.
But neither the justices nor the attorneys arguing a Georgia death-penalty case seemed to know just what jurisdiction the court has left over habeas matters.
The answer, which the court could deliver within a month, may affect not only the hundreds of inmates on death rows around the country but the authority of the Supreme Court itself.
Senior Assistant Attorney General Susan V. Boleyn argued that the Supreme Court should decide it does not have the jurisdiction to rule on the last-minute appeal of a Georgia death-row inmate who was scheduled to be executed only a month ago. Felker v. Turpin, No. 95-8836 (U.S., argued June 3, 1996).
The state contends the Anti-Terrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, not only cuts back on the habeas cases federal trial courts can hear but also on those filed directly with the Supreme Court.
Boleyn told the justices that the new act restricts habeas cases filed as "original" matters at the court under 28 U.S.C. 2241, as well as to habeas cases brought to the court on appeal or certiorari petitions.
Attorneys for the defendant and for the federal government both said the act, which does not mention that code section, does not apply to original habeas petitions at the high court.
But the justices questioned her repeatedly about why the new law should apply to 2241 cases and even about whether her arguments made sense.
Georgia's argument ran into immediate trouble from Chief Justice William H. Rehnquist. When Boleyn said the state opposed any reading of the new law "that would engender further delay," Rehnquist told her that was "not a very specific position."
The act particularly takes aim at what it calls "second or successive" habeas corpus petitions. Prosecutors and other critics complain that criminal defendants who lose on appeal and lose their first habeas petitions then go on to seek habeas relief repeatedly, without raising new issues, managing to delay their executions by 10 years or more.
The Anti-Terrorism Act declares that all successive habeas applications in federal court must be thrown out. The only exception occurs if a three- judge panel of a U.S. circuit court of appeals certifies to a federal district court that the defendant has demonstrated very specific new factual or legal developments in his case.
That screening or "gatekeeper" decision by the Court of Appeals cannot be reheard, appealed or even taken by writ of certiorari to the Supreme Court, the act states.
The case before the justices Monday was brought by Ellis Wayne Felker, who was convicted in 1983 of the 1981 rape and murder of a 19-year-old woman to whom he had promised a job.
The Georgia Supreme Court upheld his conviction in 1984 and the U.S. Supreme Court refused a hearing that same year. Felker then filed a habeas corpus petition in state court that December, which was finally denied in August 1990. The state Supreme Court blocked an appeal of that decision in 1991 and the U.S. Supreme Court denied certiorari early in 1992.
He next brought a federal habeas corpus petition. The U.S. District Court turned that down in January 1994; the 11th U.S. Circuit Court of Appeals denied his appeal in 1995, and the Supreme Court again denied cert early this year.
Scheduled to be executed between May 2 and May 9, he brought a new state habeas petition, which the trial court and state Supreme Court rejected.
On May 1, he also filed an application under the Anti-Terrorism Act to file a second federal habeas case. The 11th Circuit denied the application in a 24-page opinion May 24, holding Felker should lose under both the old and the new law. Felker v. Turpin, No. 96-1077 (11th Cir., decided May 2, 1996).
The U.S. Supreme Court agreed to decide the case the next day but put the case on a remarkably fast track and set argument for a month later.
The court said it wanted to decide whether the ban on certiorari petitions is an unconstitutional restriction of its jurisdiction and whether the act's limitations on habeas petitions generally apply to petitions filed as original matters directly with the court itself. It also asked if the new law violates a clause of the Constitution that says the writ of habeas corpus cannot be suspended except in a national emergency.
Showing the difficulty of preparing a case for the Supreme Court on such short notice, the attorney arguing for Felker, Henry P. Monaghan of the Columbia University School of Law, said he and the other defense lawyers may have "flubbed" the answer in their brief to one of the questions the court asked.
But during other parts of his argument, Monaghan seemed engaged with Rehnquist and some other justices in a pleasant, scholarly examination of the history and development of the writ of habeas corpus.
Unlike the adversaries in many cases, the attorneys on all sides seemed to agree about some issues. For instance, Monaghan conceded that a clause in the Constitution authorizing Congress to exclude some types of cases from high court jurisdiction means Congress can indeed prevent the court from hearing certiorari petitions from Court of Appeals "gatekeeper" decisions in successive habeas cases.
Monaghan told the court that "the petition for certiorari [filed for Felker] must be dismissed."
The attorneys also agreed that the new law does not violate the Constitution's suspension clause. In fact, only U.S. Solicitor General Drew S. Days III even mentioned the issue during the arguments Monday.
But Days and Monaghan disagreed with Boleyn about whether the Anti-Terrorism Act bars successive "original" habeas petitions brought under Sec. 2241.
Boleyn, in fact, even seemed to disagree with herself. Early in her argument, she told Rehnquist that the original writ at least still "exists on paper." Later, following close questioning from Rehnquist and Justices Stephen G. Breyer, Ruth Bader Ginsburg, David Hackett Souter and Anthony M. Kennedy, she agreed with Souter's statement that "the practical effect" of the new act's restrictions "is that our original jurisdiction is in fact gone."
What about an exceptional case which meets all the stringent tests of the new law but in which a Court of Appeals panel has mistakenly refused to allow a second habeas petition? Breyer asked. Could the Supreme Court hear that case as an original matter?
"My answer is no," Boleyn said.
"Your brief suggests otherwise," Breyer responded.
In answer to a question from Justice John Paul Stevens, Boleyn said the high court might be able to consider an unusual, exceptional case in a different way, if asked to issue a writ of mandamus to a lower court.
But what is the difference? Souter demanded. "Why don't you take the position that those should be equally barred" by the Anti-Terrorism Act? he asked.
Both kinds of writs should be granted very rarely, Boleyn said.
Monaghan took the position that the Supreme Court could use its original writ jurisdiction to correct miscarriages of justice, such as in the unusual type of case Breyer asked about.
During his portion of the argument session, Days contended the high court can continue to hear original writs but should continue to do so in very rare cases.
He noted that the last time the Supreme Court granted an original habeas writ for a prisoner was in 1925.
Fulton County Daily Report is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
