A prisoner’s bid to develop new evidence rests on a 233-year-old statute about judicial writs
on Apr 25, 2022 at 9:38 am
Federal courts employ the All Writs Act to serve countless ends, from assisting FBI investigations to prohibiting vexatious litigation to requiring Apple to access data. This statute, which was originally part of the Judiciary Act of 1789, empowers federal courts to “issue all writs” (i.e., orders) that aid the exercise of their jurisdiction even though no statute expressly authorizes the orders. It is an expansively worded grant of power allowing courts to fill statutory voids. But how far does this power to issue “all writs” extend? And how far does it extend in habeas corpus proceedings, through which state prisoners challenge the constitutionality of their convictions and sentences in federal court?
In Shoop v. Twyford, set for oral argument on Tuesday, the Supreme Court will grapple with these questions. Specifically, the court will address whether and when the All Writs Act authorizes a federal court to compel a state official to transport a prisoner so he can develop evidence he might later use to challenge his state-court conviction or sentence. Although the questions here concern habeas proceedings, the broad sweep of the act means this case could be widely consequential.
How did we get here?
In 1993, Raymond Twyford was convicted of aggravated murder and sentenced to death in Ohio. Twyford had endured a traumatic childhood and, at age 13, shot himself in the head, leaving at least 20 bullet fragments lodged in his skull. The jury heard nothing of the impact of the bullet fragments on his cognitive functioning or behavior before finding Twyford guilty and recommending a death sentence. But Ohio courts upheld Twyford’s conviction and death sentence, rejecting claims that his counsel performed so poorly that Twyford was denied his constitutional rights.
Twyford then petitioned in federal district court for a writ of habeas corpus. He argued that his state-court proceedings had violated his constitutional rights and sought a new trial and sentencing. During his habeas proceedings, Twyford asserted that medical imaging of his brain damage from the gunshot wound would plausibly reveal evidence supporting several of his claims for relief, including that his trial counsel had failed to investigate and present evidence to the jury. At Twyford’s request, the federal district court invoked the All Writs Act to order Warden Tim Shoop to transport Twyford to a medical center for neuroimaging. The warden immediately appealed the transport order to the U.S. Court of Appeals for the 6th Circuit. The 6th Circuit unanimously determined that it had jurisdiction to review the warden’s mid-proceeding appeal. Then, over a dissent, the 6th Circuit held the district court had acted within its discretion in issuing the transport order under the All Writs Act.
Does the court have jurisdiction?
Before tackling the scope of the Act, the Supreme Court will face a threshold question: whether the 6th Circuit had — and whether the Supreme Court now has — the power to hear the warden’s mid-proceeding appeal. Federal appellate courts generally may review only final decisions that conclude litigation in the district courts. However, appellate courts may rely on the collateral-order doctrine to review a narrow set of non-final decisions that (1) resolve important legal questions independent from the underlying matters, and (2) are functionally unreviewable later.
Does the collateral-doctrine order extend to orders like the transport order? The warden submits it does. He emphasizes that the transport order cannot be reviewed later — once he has incurred the cost and risk of transporting Twyford, there is little point in further review — and that courts have previously allowed immediate appeals of similar orders. Twyford counters that the case-specific transport order is unlike any order to which the collateral-order doctrine currently applies. Expanding the doctrine would greenlight immediate appeals from all sorts of preliminary rulings, undercutting the finality requirement for appellate review.
If jurisdiction is lacking, the Supreme Court will send the case back to the 6th Circuit, which will either dismiss the appeal or consider other matters raised by the warden.
Can the All Writs Act authorize the transport of state prisoners?
Should jurisdiction exist, the Supreme Court will address whether the All Writs Act can authorize prisoner transport in habeas proceedings. As background, one of the statutes governing habeas proceedings, 28 U.S.C. 2241(c), says a federal court “shall not” grant a writ of habeas corpus unless one of five enumerated circumstances applies. Two of those circumstances are relevant here: Section 2241(c)(3), which applies when the prisoner “is in custody in violation of the Constitution or laws or treaties of the United States”; and Section 2241(c)(5), which applies when it “is necessary to bring him into court to testify or for trial.” The justices will determine whether the All Writs Act allows federal courts to order state officials to transport prisoners when the reason for transport is not listed in Section 2241(c).
The warden posits that writs of habeas corpus were traditionally the means by which courts ordered the movement of prisoners. Any order for prisoner transport is therefore a habeas writ that must comply with Section 2241(c). Specifically, the order must comply with subsection (c)(5), which discusses prisoner transport. According to the warden, because (c)(5) permits only transport to court for trial or testimony, the statute precludes transport for any other purpose, including medical testing. The district court could not circumvent that proscription through the All Writs Act.
In contrast, Twyford and the United States contend that the transport order issued here was not itself a writ of habeas corpus constrained by Section 2241(c). Instead, it was an auxiliary order that the district court issued to support its habeas jurisdiction under subsection (c)(3) — jurisdiction the court had because Twyford had asserted his conviction and sentence were unconstitutional. Twyford submits that the Supreme Court has repeatedly held that the All Writs Act permits federal courts to order the transport of prisoners for reasons other than trial or testimony, including for medical testing. The United States further warns that the warden’s position could inhibit courts’ ability to order prisoner transport for any reason, including to enforce a judgment.
What findings must a federal court make before allowing a prisoner to develop evidence?
The final question before the Supreme Court is whether a federal court must conclude that new evidence might entitle a prisoner to habeas relief before granting an order to help him uncover that evidence.
The warden, whom the United States supports on this point, says yes. He insists that before ordering transport under the All Writs Act, a federal court must decide (1) whether it can consider the evidence that might emerge, and (2) whether that evidence could reasonably lead to habeas relief. The warden relies first on the Antiterrorism and Effective Death Penalty Act of 1996, through which Congress strictly cabined federal courts’ ability to consider new evidence in habeas proceedings. Because AEDPA prevents most new evidence from being considered, most orders to develop new evidence will not aid habeas courts. And because those orders to do not aid courts, they cannot be issued under the All Writs Act.
The warden also cites court rules governing habeas proceedings that permit federal courts to facilitate the discovery of new evidence — which he says includes “court-compelled medical testing” — only when that evidence could lead to relief. If the evidence falls short of that standard, facilitating its discovery amounts to an end-run around the court rules on discovery. In sum, the All Writs Act “gives courts no authority to compel the production of unusable or immaterial evidence,” as the district court did here.
Twyford disagrees. He maintains that the district court acted within its discretion in issuing the transport order without assessing the impact of AEDPA or the court rules. He argues that nothing in AEDPA forces a court to untangle knotty questions about the usability or impact of evidence before knowing what that evidence is. Not only is the warden’s proposed categorical rule inefficient, it is inconsistent with Supreme Court precedent. Lastly, Twyford defines “discovery” as the compulsory disclosure of information from another person, not information about one’s own body. In his view, the court rules limiting discovery thus do not apply.
Why does this matter?
Shoop v. Twyford could limit the ability of state prisoners to obtain court orders under the All Writs Act for information supporting their habeas claims. Indeed, several justices have shown hostility to federal habeas challenges, and this ruling could be one of multiple that further constrict an already-narrow path to developing evidence for, and establishing entitlement to, habeas relief.
Moreover, the ruling could reverberate beyond habeas proceedings. The jurisdiction decision could make way for a slew of mid-proceeding appeals, for example from any order allowing the deposition of a state official. That would affect district courts’ ability to manage ongoing litigation and would increase appellate courts’ caseloads. And, given the manifold uses of the All Writs Act, a ruling reconstruing the act could implicate the efficacious management of the federal docket in areas ranging from bankruptcy to law enforcement to corporate mergers. That Twyford will be one of the final oral arguments before Justice Stephen Breyer retires only heightens its potential impact.