Saturday, November 02, 2002

Supreme Court

The final case for next week, to be argued on Wed 11/6, is the second argument of this Term for Tom Goldstein, who really should be careful not to let these Supreme Court arguments intrude on his vital blogging time. The case, Abdur'Rahman v. Bell, is about finality vs. fairness in federal habeas corpus review of criminal convictions; Tom's client is Abdur'Rahman, on death row for a murder conviction in Tennessee state court. The operative opinion of the Sixth Circuit is unpublished. It's procedurally complicated, but here's the deal as I understand it. Abdur'Rahman's claim, insofar as relevant at this point, is that prosecutors unconstitutionally withheld evidence that would have helped him avoid a death sentence. When he sought federal habeas relief on this basis (and others), the District Court rejected this prosecutorial-misconduct argument on the grounds that he hadn't exhausted his available state remedies in that he hadn't presented this contention to the Tennessee Supreme Court. The Sixth Circuit likewise rejected his habeas claims. But then Tennessee made clear (in commentary to its Rules of Appellate Procedure) that you aren't (and never were) required to present such claims to the Tenn. S.Ct. This means that the federal courts' rejection of Abdur'Rahman's argument on procedural grounds was WRONG. Now the question is, what if anything can Abdur'Rahman do about it.

You might say that he should just file another habeas corpus petition, so that the court can consider this claim. But the Congress has enacted (28 U.S.C. § 2244) strict limits on when prisoners can file "successive" habeas petitions. Abdur'Rahman wants to avoid application of those limits by not filing a second petition, but instead using Fed. R. Civ. P. 60(b) to reopen the judgment against him on his first petition, and thereby to point out that the denial of relief to him on his first petition had rested on a premise about Tennessee procedural law that we now know to be incorrect. (The Federal Rules of Civil Procedure, for you non-lawyers, are just what the name implies; and Rule 60(b) is the rule that allows you to reopen a case under extraordinary circumstances). The quest for Tom and his client, as I see it, is to convince the Court that they can allow him to take this path under Rule 60(b) without opening the floodgates for every prisoner to use the Rule in order to avoid the limits on successive petitions. And they must convince the Court that, even though you can't usually use Rule 60(b) to reopen a case just because you can now show that the court was wrong about the law, you ought to be able to do that in a death penalty case, or at least in this death penalty case on these facts.

The case presents a good example of a type of difficult strategy call for a lawyer, which is whether to try to keep one's options open. If asked "could your client file a second habeas petition, if we reject his Rule 60(b) motion?", should the lawyer say, "no, that's the real point – if you hose us here, we're totally hosed and heading inexorably and rapidly towards execution without ANY substantive federal review of this important claim, because we don't fit into the narrow exceptions in section 2244 that allow a small range of successive petitions" or should he hedge his bets? The former course makes the best argument – the core of the winning argument, if I were the Justices – but nobody likes to concede away his final remaining option. Hard call.

Anyway, to the prediction: call me naïve, but I think that Justice O'Connor will find a way to rule for Abdur'Rahman without making a very wide opening for others to follow, and the Court will REVERSE.

posted by sam 6:36 AM 0 comments

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