by Dale Chappell

The U.S. Court of Appeals for the Eleventh Circuit publishes more orders denying “second or successive” habeas corpus petitions (“SOS applications”) than any other Circuit, and it then uses those published cases against every litigant who comes before the court, even those on direct appeal. The practice has been criticized for years, and now U.S. Supreme Court Justice Sonia Sotomayor has offered her opinion on the matter.

In a statement regarding the denial of certiorari where published orders denying SOS applications were used to foreclose an argument on direct appeal, Sotomayor called the practice “troubling” and stated she’s concerned that it may violate due process. The case came before the Court as a direct appeal from the Eleventh Circuit, where Michael St. Hubert had challenged his 32-year sentence for brandishing a firearm during several robberies. He argued that Hobbs Act robbery, under 18 U.S.C. § 1951, isn’t a qualifying offense to allow the mandatory, harsh consecutive sentence under 18 U.S.C. § 924(c), use of a firearm during a crime of violence. The Eleventh Circuit rejected his appeal using two published orders denying SOS applications, which ruled — without any response from the government or briefing — that Hobbs Act robbery qualifies under § 924(c).

When St. Hubert argued that these published orders shouldn’t carry the same weight as published cases with full adversarial testing, such as a direct appeal or first habeas petition, the Eleventh Circuit cited its “prior-panel-precedent” rule, which makes any published case in the Circuit binding on every court in the Circuit, no matter what the proceeding was in that published case.

To understand why publishing orders denying SOS applications and then using them to foreclose relief for all litigants is so concerning to Sotomayor, it’s necessary to understand how differently an SOS application is handled compared to a direct appeal or even a first habeas petition on appeal. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the criteria to grant an SOS application are extremely narrow, and the denial of the application is not appealable or subject to rehearing, unless the court itself (sua sponte) decides to rehear it. And the denial cannot be the subject of a writ of certiorari. In other words, the denial by the Court of Appeals is final and not appealable, making it unreviewable.

In addition to these restrictions, the Eleventh Circuit also adheres to a strict 30-day deadline and limits the application to about 100 words of argument, often done by a pro se prisoner. The Eleventh Circuit also doesn’t ask the government to respond, and it never grants oral argument on an SOS application. It’s basically a unilateral decision by the court on an often complex problem. Sotomayor called this the “worst of three worlds” in the Eleventh Circuit.

Several judges in the Eleventh Circuit over the past half-decade have also criticized this practice of publishing orders denying SOS applications and then using them against all sorts of litigants. It’s what happened in St. Hubert’s appeal, and four of the 11 judges voting to rehear his appeal en banc dissented, while seven of them concurred, in denying a rehearing. The concurring judges called the dissenters’ opinions an “attack” on the “integrity of the court” and defended the rule as “sound.” They said because the court itself could decide to rehear a SOS denial en banc, it was “reviewable” enough to be acceptable. But the dissenters pointed out that out of more than 10,000 applications, the Eleventh Circuit had decided on its own only one time to rehear a SOS application en banc after it was denied.

Sotomayor seemed to agree with the dissenters and further recognized that the Eleventh Circuit publishes “far more” orders denying SOS applications than any other Circuit. Judge Adalberto Jordan admitted in a separate opinion that the Eleventh Circuit “led the country” in the practice and even took responsibility for some of those published decisions. But he nonetheless concurred in denying rehearing en banc because he said the problem must be fixed by changing the court’s rules.

“Making matters worse,” Sotomayor said, is the Eleventh Circuit determining the merits of an applicant’s claims in deciding whether to grant authorization. Under 28 U.S.C.
§ 2244(b)(3)(C), an applicant is only required to make a “prima facie showing” that his claims arguably have merit, not that he would be successful.

In the competing opinions in St. Hubert’s en banc denial, Judge Bill Pryor said that deciding the merits of the claims in an application was “common sense practice” and that if the Court of Appeals didn’t do that it would “create unnecessary work for the district court.” In other words, an applicant could only be granted authorization to file a SOS habeas petition in the district court if his claims would be successful, in contradiction to the statute itself.

Sotomayor called the Eleventh Circuit “out of step” with other Circuits, and its practice of using published orders that had no adversarial testing created “grave problems” and even due process concerns. “This Court has been wary of affording full precedential weight to its own decisions based on so little argument” in summary decisions by the Court, she said. “Everyone should have his own day in court,” she said, and that happens “only when certain minimum requirements, consistent with due process, have been met.”

St. Hubert’s case wasn’t the proper case to decide whether the Eleventh Circuit’s practices violate due process (because it was never argued in the courts below). However, Sotomayor observed that the “Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case.” She pointedly added: “In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.”

One of those, she suggested, is to limit publishing decisions “only to those orders resulting from a robust process” that would ensure “basic fairness.” See: St. Hubert v. United States, 140 S. Ct. 1727 (2020) (Sotomayor, J., concurring in denial of certiorari).

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