Justice Sotomayor flags due process concerns with how Eleventh Circuit considers inmate efforts to file second/successive habeas petition under AEDPA

The US Supreme Court has kicked off another work week with another anticlimactic order list this morning.  The Court granted cert only on a procedural immigration issue, while failing to take any action on an array of Second Amendment and qualified immunity cases that it has been sitting on for a number of weeks.  Still, there are some in crumbs for hard-core habeas fans thanks to a statement on the denial of cert from Justice Sotomayor concerning the process the Eleventh Circuit uses to consider and resolve requests from inmates seeking to file a second or successive habeas petitions under the Antiterrorism and Effective Death Penalty Act.  Here are parts of the start of Justice Sotomayor’s six-page statement to provide a flavor of her concerns:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes several restrictions on inmates seeking to file a second or successive habeas petition…. But an inmate seeking such authorization from the Court of Appeals for the Eleventh Circuit faces even greater hurdles.

Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application.  In re Williams, 898 F.3d 1098, 1102 (2018) (Wilson, J., concurring).  Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F.3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc).  That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture….

These factors make out a troubling tableau indeed.  Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process.  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.  In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.