OPINION ANALYSIS

A ruling that curtails the All Writs Act in habeas proceedings will be felt by state prisoners and federal courts

The Supreme Court in Shoop v. Twyford continued its sustained assault on efforts by prisoners to challenge their state-court convictions and sentences in federal court. In Tuesday’s 5-4 decision, the justices limited the ability of federal courts to use the All Writs Act to order states to transport prisoners, even when such transport could help prisoners investigate whether their convictions are unconstitutional. While the court’s decision plainly affects prisoners seeking relief in federal court, it may also affect the functioning of federal courts in diverse contexts.

As background, the federal district court in this case relied on the All Writs Act to order Ohio prison warden Tim Shoop to transport state death-row prisoner Raymond Twyford to a medical facility for neuroimaging. Twyford sought information that could support his habeas corpus proceedings, i.e., his challenge to his state-court conviction and death sentence. He pointed to the presence of bullet fragments lodged in his head from a self-inflicted gunshot wound, among other circumstances, to justify the imaging. The warden immediately appealed the district court’s transport order, and the U.S. Court of Appeals for the 6th Circuit affirmed. The Supreme Court took the case to consider whether and when federal courts may employ the All Writs Act in habeas corpus proceedings.

The Supreme Court reversed, holding that Twyford had failed to explain how the federal district court could consider the evidence Twyford hoped to develop. Chief Justice John Roberts rooted his opinion in both the text of the Antiterrorism and Effective Death Penalty Act, which governs habeas proceedings in federal court, and the text of the All Writs Act, which the district court invoked in issuing its transport order. Under AEDPA, a federal court may admit new evidence that a prisoner failed to develop during earlier state-court proceedings only in certain limited circumstances, for example when that evidence could not have been unearthed previously. If the prisoner cannot satisfy AEDPA’s stringent requirements, then the federal court may not consider the prisoner’s new evidence.

Roberts further noted that the All Writs Act authorizes federal habeas courts to issue only orders that are “necessary or appropriate in aid of” resolving habeas proceedings. Such orders must be consistent with AEDPA. An order that “enables a prisoner to fish for unusable evidence” — evidence that a federal court cannot consider because of AEDPA — is not “necessary or appropriate in aid of” habeas proceedings and is therefore not permissible under the All Writs Act. Here, Twyford did not explain how the results of his neuroimaging could be admissible under AEDPA, and, according to Roberts, “it is hard to see how they could be.” Because Twyford had not tried to make the requisite showing, the district court could not rely on the All Writs Act to order the warden to transport Twyford for neuroimaging.

Two other points warrant mention: First, having deemed this particular transport order impermissible, the court declined to address whether the All Writs Act could ever authorize transport orders for medical testing. Second, the focal point of oral argument — the question of jurisdiction — earned only a footnote in the opinion. While mid-proceeding orders are not usually appealable, the court held that transport orders under the All Writs Act may be appealed immediately. In so concluding, Roberts noted that transport orders “resolve an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claims.”

All four dissenting justices focused on jurisdiction. Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, concluded that the court lacked jurisdiction to hear the warden’s appeal and would not have reached the All Writs Act questions. According to Breyer, nothing about the transport order merited special treatment. There was no persuasive reason to allow such an order — in effect, a standard discovery order — to be appealed immediately. Further, the harms of allowing the mid-proceeding appeal (e.g., delaying litigation, interfering with federal district courts’ ability to manage their dockets, and forcing appellate courts to prematurely consider questions interwoven with the merits of the case) outweighed any benefits. Justice Neil Gorsuch, who has generally sought to curtail the availability of federal habeas relief, likewise wrote in dissent that the court lacked jurisdiction over the interim appeal. He would have dismissed the case without ruling at all.

While transport orders may seem relatively inconsequential, the ruling reflects a push to stymie state prisoners trying to develop and present new evidence in federal court. The court in Shoop v. Twyford relied heavily on its recent and much-publicized decision in Shinn v. Martinez Ramirez, which similarly cited AEDPA to prevent prisoners seeking federal habeas relief from presenting new evidence — even when all of their state-court lawyers who could have developed the evidence earlier had performed incompetently. In Martinez Ramirez, the court rejected Barry Jones’s efforts to have federal courts consider evidence of his innocence, though Jones faces execution. And because of Tuesday’s decision, Twyford will likely not be able to present evidence in federal court regarding the bullet fragments in his skull and their effect on his cognitive function and behavior. These decisions, among others in this and recent terms, seem designed to hollow out the writ of habeas corpus for state prisoners.

The ruling’s impact may be felt not only by state prisoners, but also by federal courts. First, the opinion requires federal courts to confront thorny AEDPA issues without information the courts might find useful. For example, federal habeas courts will now have to assess whether evidence might be admissible under AEDPA without knowing what that evidence is. Second, to the extent that the Supreme Court narrowed the All Writs Act, lower federal courts may be hesitant to invoke the act unless they can be assured that doing so is “necessary or appropriate.” Given the varied settings in which courts and parties currently rely on the All Writs Act, any shift in its usage could affect everything from bankruptcy proceedings to criminal investigations. Finally, litigants may exploit the court’s jurisdictional holding to try to appeal a host of mid-proceedings orders that are “conceptually distinct” from the merits of their cases, thereby stalling litigation in federal district courts and increasing the number of piecemeal proceedings before appellate courts. It is precisely because of these inefficiencies that the Supreme Court has been reluctant to allow interim appeals in other contexts.