Amicus Curiae Brief — Hohn v. United States

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HAN 28 1996

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October Term, 1997 ;

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ARNOLD F. HOHN,

Petitioner, 4

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

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QUESTION PRESENTED

In light of the fact that the Court of Appeals denied

the petitioner’s request for a Certificate of Appealability,

does this Court have jurisdiction to grant certiorari,

vacate, and remand this case per the suggestion of the

Solicitor General?

TABLE OF CONTENTS

OS TE

Page

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STATUTORY PROVISIONS AND RULES INVOLVED 1

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A. The Gatekeeping Requirement for Habeas

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D. The Underlying Proceedings................. 7

‘SUMMARY OF ARGUMENT.................00005. 10

TERE SLRS S008 bb douse bebcccevevcccrecsess 14

I. Article III Vests Congress With Power To

Streamline Appellate Review Of Habeas

i ico6edisbebbavedsetscenceseese 14

Il. Under The Plain Terms Of Sections 1254(1),

1651, And 2253(c)(1), Congress Has Not Given

The Supreme Court Certiorari Power To

Review Unsuccessful Appiications For A Cer-

tificate Of Appealability..................... 15

Ill. Case Law Confirms This Interpretation ...... 20

A. Longstanding Precedent Emphasizes That

Leave-To-Appeal Decisions May Not Be

Reviewed Under § 1254(1) .............. 21

1. Several Decisions of The Court Sup-

port This Interpretation.............. 21

2. Mr. Hohn’s Contrary Arguments Are

***

TABLE OF CONTENTS - Continued

Page

B. Precedent Demonstrates That The Court

May Not Review An Application For A

Certificate Of Appealability Under The All

POPP TTTIT TT TTTTT TTT eee

1. Mr. Hohn’s Petition Raises No

Urgency And Asks The Court To Con-

strue § 1651 To Create Jurisdiction

That Congress Has Expressly

Addressed Elsewhere................

2. Neither House v. Mayo Nor Any Other

Decision Alters This Conclusion. .....

IV. Mr. Hohn’s Other Arguments Exceed The

Scope Of The Question Presented, And Have

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TABLE OF AUTHORITIES

Page

Cases

Adams v. United States ex rel. McCann, 317 U.S. 269

Saws 6dc Cbbeees bbeeeuehenstesdantash bnddeeks 38

Adkins v. El. DuPont de Nemours & Co., 335 US.

ai iin dni het ete nt et edatinns hnnesuns 29

Bailey v. United States, 516 U.S. 137 (1995)............ 8

Bankers Life & Casualty Co. v. Holland, 346 U.S. 379

es 6 we teat ein th be le airs ois i nee ee le a 31, 32

Barefoot v. Estelle, 463 U.S. 880 (1983) ......... 2, 28, 29

Beavers v. Pruett, 118 S.Ct. 621 (1997)................ 20

Bilik v. Strassheim, 212 U.S. 551 (1908)............... 22

Bray v. Alexandria Women's Health Clinic, 506 US.

Bee Cn dcbecsoudenesd6s catubenteeeahesiuidesa< 40

Carbo v. United States, 364 U.S. 611 (1961)............ 6

Carlisle v. United States, 517 U.S. 416 (1996)

0000eeesencébancnieadedessidibaedanea 13, 30, 32, 35

Chevron, U.S.A. v. Natural Resources Defense Coun-

i, Se ee be cvdndvncedsééidsccesecs 42

Davis v. Jacobs, 454 U.S. 911 (1981)....... 12, 21, 23, 24

DeBeers Consolidated Mines, Ltd. v. United States,

f Ff § Fates nin sane rees 34

Durousseau v. United States, 10 U.S. (6 Cranch) 307

Ss 6260 chun duende thibaeniasbieladimddiidnad ods o6-as 14

Ex Parte Patrick, 212 U.S. 555 (1908)................. 22

Ex Parte Peru, 318 U.S. 578 (1942)................. 5, 31

TABLE OF AUTHORITIES - Continued

Page

FEC v. NRA Political Victory Fund, 513 U.S. 88

Dnt .secahbenbntenbeeethenectenecaseeqacesesas 25

Felker v. Turpin, 116 S. Ct. 2333 (1996)............ 14, 15

Ferguson v. District of Columbia, 270 U.S. 633 (1926) .... 23

Fornaris v. Ridge Tool Co., 400 U.S. 41 (1976)......... 41

Forsyth v. Hammond, 166 U.S. 506 (1897)............. 29

Hagans v. Lavine, 415 U.S. 528 (1974)............005- 25

House v. Mayo, 324 U.S. 42 (1945) ...... 6.6.06... passim

In re Burwell, 350 U.S. 521 (1956) ............000005- 24

In re 620 Church Street Bldg. Corp., 299 U.S. 24

Pv ancctevesscoccsceccescescesseoccvcscnese 23, 37

In re Commonwealth of Massachusetts, 197 U.S. 482

in coddddncecedeckasousesecenseenscecocacens ss 34

Jeffries v. Barksdale, 453 U.S. 914 (1981)........... 22, 28 .

Kennedy v. Lainson, 323 U.S. 780 (1944).............. 23

Kokkonen v. Guardian Life Ins. Co. of America, 511

SR Se MED cn dcccnaccececeeteecedesecoecccess 41

Lindh v. Murphy, 117 S. Ct. 2059 (1997)............-. 27

McCarthy v. Harper, 449 U.S. 1309 (1981) ............ 22

McClung v. Stillman, 19 U.S. (6 Wheat) 598 (1821) .... 34

McIntire v. Wood, 11 U.S. (7 Cranch) 504 (1813)...... 34

McNutt v. General Motors Acceptance Corp., 298 U.S.

Be Gc ccccccchcdectcccccetecceciccccscccccces 41

Nixon v. Fitzgerald, 457 U.S. 731 (1982).........-- 27, 28

TABLE OF AUTHORITIES - Continued

Page

Olmstead v. United States, 277 U.S. 438 (1928)........ 42

Parr v. United States, 351 U.S. 513 (1956) ............ 35

Parker v. Randolph, 442 U.S. 62 (1979) ............... 40

Pennsylvania Bureau of Correction v. United States

Marshals Service, 474 U.S. 34 (1985) ........... passim

Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943) .... 34

Snyder v. Harris, 394 U.S. 332 (1969)................. 42

United States v. Beatty, 232 U.S. 463 (1914)........... 34

United States v. Jones, 990 F.2d 1047 (8th Cir. 1993),

cert. denied, 510 U.S. 1048 (1994), denial of habeas

corpus aff'd, 39 F.3d 1184 (8th Cir. 1994)............ 8

United States v. Nixon, 418 U.S. 683 (1974)........... 27

U.S. Alkali Export Assn. v. United States, 325 US.

ee Cen 6c: ctddns bubaec decd eeussénenenete ascoes 33

Will v. Michigan Dept. Of State Police, 491 U.S. 58

SPENT S 6bnoUhbbkd catesubeuesénsedeeenabesiabeces 25

ConstiTuTION, STATUTES AND RuLes

ee in A TEE db dncndbsdcncccuccacckucacus 14

ee is GIy SN Ecc ccccsdcaccatincsucctes 11, 14

Judiciary Act of 1789, § 14, 1 Stat. 81................ 6

Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828....... 5

Act of March 10, 1908, ch. 76, 35 Stat. 40............ 3

Act of March 3, 1911, ch. 231, § 240, 36 Stat. 1157..... 6

vii

TABLE OF AUTHORITIES - Continued

Page

Act of February 13, 1925, ch. 229, § 240(a), 43 Stat.

DE. neunevechenescesneeecskentaeseosenesoeacedess 35

Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967...4, 7

Act of May 24, 1949, ch. 139, § 90, 63 Stat. 102...... 7

H.R. Rep. No. 23, 60th Cong., Ist Sess., 2 (1908); 42

Cong. Rec. 608-09 (1908). ..... 0... 0s cece eee e eee eees 3

H.R. Rep. No. 308, 80th Cong., Ist Sess. (1948)....... 7

18 U.S.C. 922(g) ......-. cece eee eee eee e eee eeeeecees 8

EE ns cca ckepecssesoancescesebinenissenes 8

BE CBE. GER. oc cccscsvcvcccces _eceaunnsueensabaeta 8

SD UBL. G66 CIDER 2. oc cccccccsccccccccccscccecsccce 3

GN TED cc coccccccccesccccecscesccacens passim

TE BIDE, BIBI 2. cccccccccccccccccccccccccccccess 35 |

RN, BR sci cccccccscccscvescessescesseones 11, 15

, Bil me °. ) | errr rrr er passim

BB UBC. BBB... cccccccccccsccccccccccescscces passim

TE CIDE, BEBRRED .n wc ccccdcccccccccccccccccccses passim

BO BD. co vcccccccccsccccesccsccceesseneces passim

OrHerR AUTHORITY

Blackmun, Allowance of In Forma Pauperis Appeals

In Section 2255 and Habeas Corpus Cases, 43

RRD. 343 (1967) 2... ccccccccccccccccccccesccvceces 28

JURISDICTION

On November 4, 1996, the court of appeals denied

Mr. Hohn a certificate of appealability, and on February

10, 1997 denied his petition for rehearing. On May 12,

1997, Mr. Hofn filed a petition for a writ of certiorari,

trying to invoke jurisdiction under 28 U.S.C. 1254(1).

Because no judge or justice has granted him leave to

appeal, as required under 28 U.S.C. 2253(c)(1), because

his case was never “in” that court, as required under

§ 1254(1), and because his case does not otherwise meet

the requirements of 28 U.S.C. 1651, he may not rely on

either the statutory or common law writ. The Court

accordingly lacks jurisdiction to grant certiorari, vacate,

and remand the case, and should dismiss the petition.

STATUTORY PROVISIONS AND RULES INVOLVED

The relevant statutory provisions and rules are repro- .

duced in an appendix to this brief.

STATEMENT

This case concerns the one aspect of the Court's

jurisprudence that perhaps rivals the importance of its

authority to engage in judicial review, namely the sensi-

tive determination of when such power exists. At issue

are three lines of federal legislation regarding the Court's

jurisdiction —- one concerning its power to review habeas

corpus claims, another addressing its authority to exer-

cise appellate jurisdiction through a writ of certiorari, the

last addressing its power under the All Writs Act.

Because the issues raised by Mr. Hohn’s certiorari peti-

tion implicate all three pieces of legislation and because

the background of each law bears on this dispute, it is

useful at the outset to set forth the history of the three

statutes as well as the circumstances that make them

relevant to Mr. Hohn.

A. The Gatekeeping Requirement for Habeas

Corpus Appeals.

Since the turn of the century, Congress has limited

the rights of habeas corpus claimants to seek appellate

review of their claims. “In 1908, concerned with the

increasing number of frivolous habeas corpus petitions

challenging capital sentences which delayed execution

pending completion of the appellate process, Congress

inserted the requirement that a prisoner first obtain a

certificate of probable cause to appeal before being enti-

tled to do so.” Barefoot v. Estelle, 463 U.S. 880, 893 n.3

(1983) (citation omitted). To this end, Congress enacted

the following requirement:

That from a final decision by a court of the

United States in a proceeding in habeas corpus

where the detention complained of is by virtue

of process issued out of a State court no appeal to

the Supreme Ccurt shall be allowed unless the

United States court by which the final decision was

rendered or a justice of the Supreme Court shall be of

opinion that there exists probable cause for an

appeal, in which event, on allowing the same, the

said court or justice shall certify that there is

probable cause for such allowance.

Act of March 10, 1908, ch. 76, 35 Stat. 40 (emphasis

added).

Entitled “An Act Restricting in Certain Cases the

Right of Appeal to the Supreme Court in Habeas Corpus

Proceedings,” the statute had a straightforward goal. It

sought to make “it impossible to continue th[e] vicious

practice” of delaying the execution of sentences and

undermining the finality of criminal sentences, “as under

it no appeal can be prosecuted unless either the United

States court making the final decision or a justice of the

Supreme Court shall be of the opinion that there exists

probable cause for such appeal.” H.R. Rep. No. 23, 60th

Cong., 1st Sess., 2 (1908); 42 Cong. Rec. 608-09 (1908).

In 1925, while enacting legislation designed to curb

the Court’s obligatory jurisdiction, Congress modified the

gatekeeping requirement. Instead of allowing unsuccess-

ful habeas claimants to seek leave to appeal from a justice

of the Court, the amendment allowed applicants only to

seek leave from the district court judge who denied the

claim or from a judge of the court of appeals. Act of

February 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940, 942; 28

U.S.C. 466; Appendix.

Twenty-three years later, Congress amended the stat-

ute again, this time giving the habeas claimant three

sources for obtaining a certificate of probable cause — the

district court, the court of appeals or the Supreme Court.

Accordingly, starting in 1948, the statute provided that

“an appeal may not be taken to the court of appeals . . .

unless the justice or judge who rendered the order or a

circuit justice or judge issues a certificate of probable

cause.” Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967,

28 U.S.C. 2253; Appendix.

Finally, in 1996, Congress reenforced the leave-to-

appeal requirement with passage of The Anti-Terrorism

and Effective Death Penalty Act (the “Act” or “AEDPA”).

The legislature gave the gatekeeping requirement a more

explicit name (a “certifieate of appealability”), extended

the requirement to habeas claims brought by federal pris-

oners under § 2255, and required all claimants (federal or

State) to demonstrate “a substantial showing of the denial

of a constitutional right.” In its current form, the require-

ment thus provides that “an appeal may not be taken”

“[ujnless a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. 2253(c)(1).

B. The Certiorari Statute.

In contrast to the gatekeeping requirement, the story

of congressional legislation regarding the Court's cer-

tiorari jurisdiction has primarily been one of continuity,

not change. Congress first vested the Court with cer-

tiorari power to review federal courts of appeals’ deci-

sions in 1891. In the same Act that established these

appellate courts, Congress gave the Court the following

power:

And excepting also that in any such case as

is hereinbefore made final in the circuit court of

appeals it shall be competent for the Supreme

Court to require, by certiorari or otherwise, any

such case to be certified to the Supreme Court

for its review and determination with the same

power and authority in the case as if it had been

carried by appeal or writ of error to the

Supreme Court.

Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828.

After making a slight modification to the statute in

1911, see Appendix, Congress enacted legislation in 1925

designed “to curtail the Court’s obligatory jurisdiction by

substituting, for the appeal as of right, discretionary

review by certiorari in many classes of cases.” Ex Parte

Peru, 318 U.S. 578, 585 n.4 (1942). In doing so, Congress

made clear that the Court’s certiorari power extends to

“any case, civil or criminal, in a circuit court of appeals.”

Act of February 13, 1925, ch. 229, § 240(a), 43 Stat. 938;

Appendix.

Amendments to the provision in 1948 and again in

1988 brought the provision to its current form, which

now reads:

Cases in the courts of appeals may be

reviewed by the Supreme Court by .. . writ of

certiorari granted upon the petition of any party

to any civil or criminal case, before or after

rendition of judgment or decree.

28 U.S.C. 1254(1) (emphasis added).

Cc. The All Writs Act.

The All Writs Act has long been a constant on the

judicial landscape. First enacted as part of the Judiciary

Act of 1789, the “extraordinary writ” has always required

at a minimum some form of necessity before it could be

deployed. See Pennsylvania Bureau of Correction v. United

States Marshals Service, 474 U.S. 34, 43 (1985). In its initial

form, the law provided as follows:

That all the before-mentioned courts of the

United States shall have power to issue writs of

scire facias [to enforce a judgment], habeas

corpus, and all other writs not specially pro-

vided for by statute, which may be necessary for

the exercise of their respective jurisdictions, and

agreeable to the principles and usages of law.

Judiciary Act of 1789, § 14, 1 Stat. 81.

Several modest changes to the provision occurred

over the next 120 years, the primary one being the sever-

ance of the writ of habeas corpus from the All Writs Act.

See Carbo v. United States, 364 U.S. 611, 615 & n.6 (1961).

Congress did not modify the provision again until 1911,

when it altered the statute to provide:

The Supreme Court and the district courts

shall have power to issue writs of scire facias.

The Supreme Court, the circuit courts of

appeals, and the district courts shall have power

to issue all writs not specifically provided for by

statute, which may be necessary for the exercise

of their respective jurisdictions, and agreeable to

the usages and principles of law.

Act of March 3, 1911, ch. 231, § 262, 36 Stat. 1162.

Finally, in 1948 (coupled with a minor alteration in

1949), Congress amended the provision to its current

form, which now reads:

The Supreme Court and all courts estab-

lished by Act of Congress may issue all writs

necessary or appropriate in aid of their respec-

tive jurisdictions and agreeable to the usages

and principles of law.

28 U.S.C. 1651(a); see Act of June 25, 1948, ch. 646, 62 Stat.

944; Act of May 24, 1949, ch. 139, § 90, 63 Stat. 102. In

making these changes, Congress merely “consolidated

various provisions into § 1651 and made ‘necessary

changes in phraseology’ without substantive amend-

ment.” Pennsylvania Bureau of Correction v. U.S. Marshals,

474 U.S. 34, 41 (1985) (quoting H.R. Rep. No. 308, 80th

Cong., 1st Sess. A144).

D. The Underlying Proceedings.

These statutes, together with the history behind

them, became relevant to Arnold Hohn when he chose to

distribute methamphetamine from his home in Omaha,

Nebraska. After learning from an informant that Mr.

Hohn was selling drugs from his residence and that he

always had at least one gun on his person, the police

obtained a “no knock” warrant to search his house. On

June 20, 1990, they conducted the search, which uncov-

ered 16 grams of methamphetamine, drug paraphernalia,

several weapons and money. The police found the drugs

and three loaded weapons (two in holsters) within a few

feet of each other on the kitchen counter. Elsewhere in the

kitchen and the house, they found three other firearms,

one of them loaded. J.A. 34, 43.

The police promptly arrested Mr. Hohn. They

charged him with using and carrying a firearm in relation

to a drug offense under 18 U.S.C. 924(c)(1), possession

with intent to distribute methamphetamine within 1000

feet of a public school under 21 U.S.C. 845a and being a

felon in possession of a firearm in violation of 18 U.S.C.

922(g) and 924(a).

A jury convicted Mr. Hohn on all three counts, and

he was sentenced to 90 months in prison. He appealed to

the Eighth Circuit, raising three claims — that the federal

government violated the Speedy Trial Act, that his

motion to suppress evidence from the search of his resi-

dence should have been granted, and that the charge

concerning drug distribution within the vicinity of a

schoolyard should have been dismissed. J.A. 12-26.

Nowhere in his appeal did he challenge the sufficiency of

the evidence to support his § 924(c)(1) conviction for

using or carrying a firearm in relation to a drug offense.

Id. On November 8, 1993, the court of appeals affirmed.

Id.

On January 24, 1996, Mr. Hohn filed a motion in the

United States District Court for the District of Nebraska

to vacate, set aside or correct his sentence under 28 U.S.C.

2255. Relying on this Court’s decision in Bailey v. United

States, 116 S. Ct. 501 (1995), he argued that his conduct

did not violate § 924(c)(1) because the government failed

to show that he was “using” a firearm in the course of a

drug transaction. In Bailey, the Court determined that

“use” requires the government to prove “an active

employment of the firearm by the defendant, a use that

makes the firearm an operative factor in relation to the

predicate offense.” Id. at 505. The decision overruled

prior lower-court authority to the effect that “ ‘use’ may

be inferred from the availability and presence of the

firearm.” United States v. Jones, 990 F.2d 1047, 1050 (8th

Cir. 1993), cert. denied, 510 U.S. 1048 (1994), denial of habeas

corpus aff'd, 39 F.3d 1184 (8th Cir. 1994).

On April 24, 1996, while the district court was con-

sidering Mr. Hohn’s § 2255 petition, the President signed

into law the Anti-Terrorism and Effective Death Penalty

Act. The new law modified the process for appealing a

§ 2255 motion, requiring the inmate to obtain a “certifi-

cate of appealability” as a prerequisite to an “appeal-

.. from... the final order in a proceeding under section

2255.” 28 U. S.C. 2253(c)(1). Such a certificate may issue,

the Act provided, only upon a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).

On July 18, 1996, the district court rejected Mr.

Hohn’'s § 2255 motion. The court concluded that he had

waived any claim to challenge the jury instructions

regarding “use” because he did not object to the instruc-

tions on direct appeal. J.A. 37.

On July 29, 1996, Mr. Hohn filed a notice of appeal.

Treating the notice as a certificate of appealability under

the three-month-old AEDPA, the Eighth Circuit denied

Mr. Hohn leave to appeal. It reasoned that at most he was

“making a claim to a federal statutory right,” not a “con-

stitutional claim” as required under the statute. J.A. 42.

“Bailey did no more than interpret a statute,” the court

concluded, “and an incorrect application of a statute by a

district court, or any other court, does not violate the

Constitution.” Id. Because “petitioner makes no due pro-

cess claim with respect to the trial judge’s action” and

because in any event “trial errors hardly ever rise to the

level of a due process violation,” the court found that Mr.

Hohn had not made a “substantial showing of the denial

of a constitutional right” as required under § 2253(c)(2).

Id.

At that point, Mr. Hohn did not seek leave to appeal

from a justice of the Supreme Court, as permitted under

§ 2253(c)(1). Instead, he filed a petition for a writ of

certiorari, attempting to invoke jurisdiction under 28

U.S.C. 1254(1). The petition sought review of the court of

appeals’ determination that he was not entitled to a cer-

tificate of appealability because his claim raises a statu-

tory, not a constitutional, question. In response, the

government agreed that Mr. Hohn’s claim could be char-

acterized as constitutional, and that the court of appeals

erred in reaching a contrary conclusion. The government

suggested that the petition should be granted, the lower

court decision vacated, and the case remanded for further

consideration whether a certificate of appealability

should issue.

On October 31, 1997, the Court granted certiorari. In

light of the court of appeals’ denial of Mr. Hohn’s request

for a certificate of appealability, the Court limited cer-

tiorari to whether it had jurisdiction to act on the sugges-

tion of the Solicitor General of the United States to grant,

vacate and remand the case.

SUMMARY OF ARGUMENT

The Court lacks jurisdiction over the petition. Con-

gress has precluded the Court from exercising statutory

or common law certiorari power over a court of appeals’

denial of an inmate’s application for a certificate of

appealability.

1. Under the exceptions and regulations clause (U.S.

Const., Art. III, § 2), Congress may streamline collateral

review of requests for release filed by federal and State

prisoners. It thus may prohibit appellate review of — and

terminate - a rejected habeas corpus petition in the event

the applicant fails to obtain leave to appeal. Nothing

about such legislation tests the borders of Congress’s

power under the clause. Because the claimant remains

free to file an “original” habeas corpus application in this

Court under 28 U.S.C. 2241, or an application for a certifi-

cate of appealability with a justice of the Court, the law

does not exceed congressional power.

2. Congress not only has the power to regulate the

Court's appellate jurisdiction in this way, but it also has

unmistakably done so in this instance. In unyielding

terms, § 2253(c)(1) says that “an appeal may not be taken |

to the court of appeals” in the absence of a “certificate of

appealability” from an Article III judge or justice. The

plain import of the language of the provision is to expe-

dite review by setting a specific course for considering

requests for leave to appeal and by finalizing those cases

that fail to obtain the required certificate.

The language of §§ 1254(1) and 1651 cements this

conclusion. Section 1254 requires a “case” to be “in” the

court of appeals before certiorari may be sought. Denial

of leave to appeal prevents the case from ever entering

the court of appeals, and it defies common sense to

conclude that a certificate-to-appeal-a-case is itself a case.

Because Mr. Hohn retains discretion to seek a certificate

of appealability from this Court, he also cannot credibly

argue that a common law writ of certiorari is “necessary”

or “appropriate” “in aid” of the Court's jurisdiction. The

certificate-of-appealability option does everything that

§ 1651 could possibly do for him. It allows the Court to

dispense individual justice (by granting leave to appeal

when due), and to provide guidance regarding the gate-

keeping standard (by interpreting the standard in review-

ing an application itself). Nor would a common law writ

be used “in aid” of the Court’s jurisdiction. Quite to the

contrary, he is looking to the writ precisely to evade the

express requirements of §§ 2253(c)(1) and 1254(1), not to

supplement them.

3. The Court’s decisions all respect the plain lan-

guage of these jurisdictional limitations.

a. Since 1908, when Congress first imposed a

gatekeeping standard on appellate review of collateral

challenges to a criminal sentence, the Court’s opinions

have unanimously precluded inmates from invoking

§ 1254(1) (or its predecessors) to seek review of a denied

leave to appeal. In House v. Mayo, 324 U.S. 42 (1945), for

example, the Court prevented an inmate from doing just

that. Because jurisdiction under the certiorari statute

“extends only to cases ‘in a circuit court of appeals,’ ”

and because “the case was never ‘in’ the court of appeals,

for want of a certificate of probable cause,” the Court

refused to exercise its statutory certiorari powers over the

petition. Id. at 44. Other opinions follow the same course.

See, e.g., Davis v. Jacobs, 454 U.S. 911 (1981).

b. Case law also prevents litigants from using

the All Writs Act to escape the detailed jurisdictional

requirements of §§ 2253 and 1254(1). Because the Act is a

“residual source of authority,” not a free flowing source

of jurisdiction, because it only permits the Court “to issue

writs that are not otherwise covered by statute,” Carlisle

v. United States, 116 S. Ct. 1460, 1467 (1996) (quotation

omitted), and because it requires necessity of some kind,

the Act has no application here. Mr. Hohn self-evidently

is trying to use the Act to avoid the consequences of

“express statutory provision[s]” that prohibit jurisdiction.

Pennsylvania Bureau of Correction v. United States Marshals

Service, 474 U.S. 34, 42 (1985). And, even if this were

permissible, the option of applying for a certificate of

appealability to the Court dooms any claim that extraor-

dinary or exceptional circumstances require relief in this

instance.

House v. Mayo does not alter this conclusion. When

the Court decided House in 1945, Congress did not permit

habeas litigants to seek leave to appeal from this Court.

Accordingly, the inmate faced a predicament then - no

recourse for a mistaken denial of leave to appeal — that

Mr. Hohn can only conjure today. No urgency, in short,

supports his reliance on the Act under these circum-

stances. At the same time, the increasingly “express statu-

tory provisions,” established in 1948 and 1996,

streamlining the appellate rights of habeas claimants pro-

hibit continued reliance on the common law writ of cer-

tiorari in this setting.

ARGUMENT

I. Article III Vests Congress With Power To Streamline

Appellate Review Of Habeas Corpus Cases.

As a preliminary matter, Congress has authority to

limit the Supreme Court’s appellate “judicial Power”

(U.S. Const., Art. III, § 1) in the way it did here. Apart

from three discrete classes of original jurisdiction cases,

the Constitution provides that “in all other Cases . . . the

supreme Court shall have appellate Jurisdiction, both as

to Law and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.” Art. III, § 2.

While the Court’s “appellate powers ‘are given by the

constitution,’” they thus ” ‘are limited and regu-

lated . . . by such [congressional] acts as have been passed

on the subject.’” Felker v. Turpin, 116 S. Ct. 2333, 2339

(1996) (quoting Durousseau v. United States, 10 U.S. (6

Cranch) 307, 314 (1810)).

No doubt some jurisdictional statutes might test the

reach of Congress's power under the exceptions clause to

close off all review of a habeas petitioner’s complaint. But

this is not one of them. For every appellate door that

§ 2253(c)(1) closes, it leaves open several others that

allow inmates to seek relief from the Court. In this

respect, the provision bears a similarity to the sections of

the AEDPA at issue in Felker v. Turpin. Congress, there,

also precluded a petition for a writ of certiorari to review

a decision of a court of appeals exercising its gatekeeping

function over a successive habeas petition, but at the

same time did not repeal the Court's authority to enter-

tain an original petition for habeas corpus. Under those

statutory circumstances, the Court concluded, there “can

be no plausible argument that the Act has deprived this

Court of appellate jurisdiction in violation of Article III,

§ 2.” Id. at 2339.

The same conclusion applies with equal — indeed,

more — force here. Section 2253(c)(1) not only leaves open

the Court’s authority to entertain an original habeas

action, see 28 U.S.C. 2241, but also allows the Court itself

to entertain an application for a certificate of appeal-

ability. Authority to petition the Court directly for a

certificate also defuses the risk that the Court might

somehow lack authority to review lower-court decisions

that “adopted divergent interpretations of the gatekeeper

standard.” Felker, 116 S. Ct. at 2342 (Souter, J., joined by

Stevens, J., and Breyer, J., concurring). See id. (noting that,

in the absence of such review, “the question whether the

statute exceeded Congress’s Exceptions Clause power

would be open”). Because the same standard that governs

lower-court gatekeeping decisions also governs the

Court’s decision, the Court necessarily will resolve such

disputes through its own review of an application. As in

Felker, in short, there is “no plausible argument” that

Congress has exceeded its power under the Constitution

in this instance. Suggestions to the contrary (Pet. Br.

39-40) should be rejected.

II. Under The Plain Terms Of Sections 1254(1), 1651,

And 2253(c)(1), Congress Has Not Given The

Supreme Court Certiorari Power To Review Unsuc-

cessful Applications For A Certificate Of Appeal-

ability.

In addition to having the constitutional authority to

foreclose certiorari review of habeas corpus gatekeeping

decisions, Congress has in fact exercised that power here.

The relevant statutes provide as follows:

The Certificate-Of-Appealability Requirement:

“Unless a circuit justice or judge issues a certifi-

cate of appealability, an appeal may not be taken

to the court of appeals from - (A) the final order

in a habeas corpus proceeding in which the

detention complained of arises out of process

issued by a State court; or (B) the final order in a

proceeding under section 2255.” 28 U.S.C.

2253(c)(1).

The Certiorari Statute: “Cases in the courts of

appeals may be reviewed by the Supreme Court

by . . . writ of certiorari... . ” 28 U.S.C. 1254(1).

The All Writs Act: “The Supreme Court and all

courts established by Act of Congress may issue

all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the

usages and principles of law.” 28 U.S.C. 1651(a).

In word and design, this trio of laws prevents the

Court from exercising either statutory or so-called com-

mon law certiorari jurisdiction over Mr. Hohn’s petition.

First, in unbending terms, § 2253 erects a jurisdictional

gate to appellate review of all failed habeas petitions.

Such “an appeal may not be taken to the court of

appeals,” Congress has unequivocally mandated, save

when a judge or justice gives the inmate permission to do

so. The prerequisite of a certificate of appealability thus

prohibits any “case” from entering the appellate court

unless the right judge authorizes it. In the absence of

such a certificate, the case never enters - and therefore is

never “in” — the appellate court as required by § 1254(1).

Even aside from the prerequisite that a case be “in”

the court of appeals, the requirement of a certificate of

appealability under § 2253(c)(1) by itself ends all habeas

cases that do not obtain the requisite leave. The provision

is at once jurisdiction stripping and case ending. Con-

gress purposefully set up a two-step process for review-

ing district court habeas decisions, the first to screen

appeals that warrant further review, the second to review

deserving claims on the merits. The failure to meet the

threshold requirement both terminates the federal courts’

power to review the matter and the inmate’s power to

seek review of the district court decision elsewhere. The

case is over. The inmate cannot go back to district court to

obtain a final order; and he cannot correct any of the

other jurisdictional defects that might initially have pre-

cluded review. The manifest point of the statute is to

screen out meritless habeas appeals and finalize them.

Second, while it might be argued that Mr. Hohn’s

application for a certificate came into the court of appeals,

that is not the same as doing what Congress required of

him - to obtain permission to get his “case” in the appel-

late court. That, of course, never happened. And, to say

that Congress meant to use the word “case” in § 1254 to

allow certiorari review of certificate applications asks too

much of the operative words. Not only is it awkward to

think of a certificate-to-appeal-a-case as itself a “case,”

but that view makes even less sense in this statutory

setting. The same provision (§ 2253(c)(1)) that allows Mr.

Hohn to seek a certificate of appealability from the appel-

late court also allows him to seek one from the Supreme

Court. Having once permitted Mr. Hohn to seek review in

this Court via a certificate application, no rational expla-

nation exists for authorizing Court review of the court of

appeals’ certificate decision by certiorari under § 1254(1)

or for that matter under § 1651. The former option does

everything that the latter two options could possibly do

for him.

Apparently recognizing that a denied certificate at

the court of appeals level prevents the inmate from seek-

ing certiorari, Congress wisely created a safety valve. It

gave inmates permission to ask a justice (or the whole

Court if the justice refers the matter) for a certificate of

appealability, making certain that Congress’s efforts to

finalize meritless habeas appeals did just that, but only

that.

Third, still another component of the statutory

scheme bolsters this reading. When a prisoner seeks a

certificate of appealability, he must do so issue by issue.

That is to say, the application must detail “which specific

issue or issues” meet the gatekeeping requirement of “a

substantial showing of the denial of a constitutional

right.” 28 U.S.C. 2253(c)(2) and (3). The court of appeals

therefore may grant inmates permission to appeal some

issues but not others. Yet, under that scenario, what hap-

pens next? May the inmate then seek statutory (or com-

mon law) certiorari of the denied issues while the court of

appeals proceeds to review the accepted issues? If so, that

imposes a unique two-track system of appellate review

that will spawn a host of administrative oddities that

Congress could not possibly have intended.

Take the problem of timing. Since petitioners have 90

days to file a writ, as well as ample time for opposition

and reply briefs, review of a certiorari petition custom-

arily takes a minimum of 5-6 months from the date of

decision, a minimum of 7-8 months when the petition

overlaps with the summer recess, and occasionally longer

(consider Mr. Hohn’s petition, which took almost 9

months). Similar delay would presumably plague a

§ 1651 common law writ of certiorari, particularly one

that (like Mr. Hohn’s) was conceived as and then filed in

the form of a statutory certiorari petition. See S. Ct. Rule

20.

In this setting, a court of appeals would face an

awkward dilemma: either wait for this Court’s certiorari

decision before proceeding with all issues entitled to

review, or bifurcate the case into the court-of-appeals-

approved issues first with the Supreme-Court-approved

issues to follow. No such dilemma arises, in conspicuous

contrast, when litigants hew to the application process

that Congress expressly created. Applications to the

Court customarily take days or at most weeks to review,

may be reviewed promptly during the summer recess,

and accordingly would not compel a two-track system of

review. While Congress perhaps could impose a bifur-

cated system of review on courts and litigants, it makes

little sense to credit the legislature with that disfiguring

intention when a more natural reading of the laws elimi-

nates any such requirement.

Fourth, Mr. Hohn cannot tenably shoehorn his case

into the language of the All Writs Act, which requires a

common law writ of certiorari to be “necessary” or

“appropriate” as well as to be “in aid” of the Court's

jurisdiction. Surely it is not necessary to use § 1651 here.

As Mr. Hohn well knows, indeed has now shown he

knows (Pet. Br. 45 n.34; Application by Arnold F. Hohn

for a Certificate of Appealability (Jan. 20, 1998)), an

inmate may permissibly file an application under

§ 2253(c)(1) to obtain a certificate of appealability from a

justice or (if referred) the Court. See Beavers v. Pruett, 118

S. Ct. 621 (1997) (referring application for a certificate of

appealability and a stay of execution to the Court). Just as

it is not necessary to review Mr. Hohn’s § 1651 request, it

is not appropriate to do so either. Congress already gives

inmates a procedure for ensuring that the certificate-

application process goes fairly. He has now taken advan-

tage of that option, making his efforts to expand § 1651

jurisdiction as inappropriate as they are gratuitous.

In addition to his inability to satisfy the necessary /

appropriate requirement, Mr. Hohn cannot show that his

§ 1651 writ is “in aid” of jurisdiction. That remains

implausible here since Mr. Hohn self-evidently is using

§ 1651 to create jurisdiction, not supplement it. It can

never be true that § 1651 is “in aid” of jurisdiction that

Congress elsewhere has expressly regulated and indeed

taken away. Finally, in light of the availability of the

certificate option, Mr. Hohn cannot meet another essen-

tial requirement. Under Supreme Court Rule 20(1), the

applicant must show something that Mr. Hohn has not -

“that adequate relief cannot be obtained in any other

form.”

III. Case Law Confirms This Interpretation.

0 OSs os ee ry « o@ ” > . 2 ee * * a ae

A. Longstanding Precedent Emphasizes That

Leave-To-Appeal Decisions May Not Be

Reviewed Under § 1254(1).

1. Several Decisions of The Court Support

This Interpretation.

House v. Mayo, 324 U.S. 42 (1945) (per curiam),

addressed this issue in a context similar to this one.

Confined in a State prison, the inmate filed a petition for

habeas corpus in federal district court. The district court

denied the petition, then denied a certificate of probable

cause for an appeal. The inmate next filed an application

for an appeal in forma pauperis but without requesting a

certificate of probable cause. The appellate court denied

the application, after which the inmate sought leave in

this Court to file a petition for certiorari.

The Court determined that it lacked power to issue a

statutory writ of certiorari. “Our authority under that

section,” the Court observed, “extends only to cases ‘in a

circuit court of appeals, or in the United States Court of

Appeals for the District of Columbia.’ ” Id. at 44. Because

“the case was never ‘in’ the court of appeals, for want of

a certificate of probable cause,” the Court continued, it

lacked jurisdiction to review the case under Congress’s

jurisdictional requirements. Id.

Most recently, in Davis v. Jacobs, 454 U.S. 911 (1981),

two members of the Court exchanged views about this

same question. While the dialogue between Justices

Rehnquist and Stevens failed to resolve whether the

* bn ce i a ln nn a ii ie ee a

court of appeals and accordingly could not be reviewed

under § 1254(1).

In the words of Justice Rehnquist: “[AJll” of the

Court’s cases “concede that there is no jurisdiction to

grant a writ of certiorari where both the District Court

and the Court of Appeals have denied a habeas corpus

petitioner a certificate of probable cause to appeal.” Id. at

915-19 (Rehnquist, J., joined by Burger, C.J., and Powell,

J., dissenting from the denial of certiorari). And in the

words of Justice Stevens: “Because none of the petitioners

obtained a certificate of probable cause, none of these

cases was properly ‘in’ the Court of Appeals and there-

fore 28 U.S.C. 1254 does not give this Court jurisdiction

over the petitions for certiorari.” Id. at 912-14 (Stevens, J.,

respecting the denial of certiorari). See also Jeffries v.

Barksdale, 453 U.S. 914 (1981) (“Since there was no certifi-

cate of probable cause issued in this case, it was never ‘in’

the Court of Appeals” and the Court therefore “cannot

review it by writ of certiorari to that court”) (Rehnquist,

J., joined by Burger, C.J., and Powell, J., dissenting from

the denial of certiorari); McCarthy v. Harper, 449 U.S. 1309

(1981) (Rehnquist, J., in chambers).

In several other decisions, the Court has followed

this course. In Bilik v. Strassheim, 212 U.S. 551 (1908), and

Ex Parte Patrick, 212 U.S. 555 (1908), the Court disposed of

two cases without opimion under a forerunner of § 2253.

At the time, Congress did not allow the Court to review

an unsuccessful habeas petition in the absence of a certifi-

cate of probablie cause issued by a justice of the Court or

of the federal district court that had denied the petition.

In the words of the 1908 statute, “no appeal to the

Supreme Court shall be allowed unless” the petitioner

makes the requisite showing. Against this backdrop, the

Court concluded that it lacked jurisdiction to allow direct

appeals in cases in which no certificate had issued.

Ferguson v. District of Columbia, 270 U.S. 633 (1926)

(per curiam), reached a like conclusion. At stake was

whether the Court had jurisdiction to review the refusal

of a justice of the court of appeals of the District of

Columbia to allow a writ of error to the police court of

the District. No such authority existed, the Court held,

and therefore denied a petition for a writ of certiorari

“for want of jurisdiction in this [CJourt.” Id. at 634. And

in In re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936),

the Court declined to exercise its statutory certiorari

powers over a bankruptcy confirmation plan that the

court of appeals had declined leave to appeal. Because

the “Circuit Court of Appeals declined jurisdiction,” it

concluded that the case involved an “instance[ }] not cov-

ered by” the Court's jurisdiction under the certiorari

statute. Id. at 26. Cf. Kennedy v. Lainson, 323 U.S. 780

(1944) (denying “for want of jurisdiction” a petition for a

writ of certiorari to a district court). In the last analysis,

no opinion of the Court, nor for that matter a single

separate opinion of a justice, to amicus curiae’s knowl-

edge, has ever stated that the Court may use its statutory

certiorari power to review decisions denying leave to

appeal.

Nor has Congress made any changes to the pertinent

laws that could possibly alter these conclusions. For

example, in House and Davis, the statutory provision

regarding certiorari required the “case” to be “in” the

court of appeals, just as it does today. See Appendix. And

the relevant portions of the certificate-of-probable-cause

requirement in House and Davis resemble today’s certifi-

cate-of-appealability prerequisite. Both say that “an

appeal may not be taken” in the absence of permission

from the right judge. See Appendix.

What changes there have been, moreover, cement

these conclusions. In its current form, § 2253(c)(1)

requires a certificate of appealability, not one of probable

cause. Yet that only goes to emphasize the severity of the

screening function Congress has mandated. Likewise, the

predecessor of § 2253 at issue in House did not permit an

application to be filed with a justice of this Court, while

the modern version does. But that, too, offers little solace

to Mr. Hohn. That the inmate today may seek a certificate

of appealability from the Court under § 2253(c)(1) makes

all the more unnecessary the stretched reading of

§ 1254(1) that Mr. Hohn asks the Court to embrace.

2. Mr. Hohn’s Contrary Arguments Are Mis-

taken.

To all of this, Mr. Hohn offers several responses, each

unpersuasive. He first claims (Pet. 15-16) that the Court

in practice has not always adhered to these requirements.

There are several decisions, he points out, that issue writs

of certiorari to review denials of certificates of probable

cause; and there is one case (In re Burwell, 350 U.S. 521

(1956)), he adds, in which the Court exercised jurisdiction

over questions certified by the Ninth Circuit under the

predecessor to § 1254(2), even though the statute required

a “case” to be “in” the court of appeals and the appellate

court had denied leave to appeal. Yet neither this alleged

general practice nor the specifics of Burwell supply the

support Mr. Hohn needs. It is a basic principle of this

Court’s jurisprudence that “when questions of jurisdic-

tion have been passed on in prior decisions sub silentio,

this Court has never considered itself bound when a

subsequent case finally brings the jurisdictional issue

before us.” Hagans v. Lavine, 415 U.S. 528, 532 n.5 (1974).

See also FEC v. NRA Political Victory Fund, 115 S. Ct. 537,

542 (1994); Will v. Michigan Dept. of State Police, 491 U.S.

58, 63 n.4 (1989).

As the federal government acknowledges (Br. 26),

this venerable principle disposes of Mr. Hohn’s argu-

ment. Not one of the cases Mr. Hohn cites, including

Burwell, discusses the jurisdictional question, to say noth-

ing of mentioning the statutory language that governs it.

Any way one looks at it, Mr. Hohn’s reliance on a series

of orders and decisions that fail to address the jurisdic-

tional issue cannot support his position, let alone show

that the Court has indiscreetly overruled these earlier

rulings.

Next, Mr. Hohn argues (Pet. 35-36) that in Congress's

efforts to place additional restrictions on the appeal of

meritless habeas claims through passage of the AEDPA, it

somehow altered the House conclusion that inmates may

not seek certiorari under § 1254 to review a denied leave-

to-appeal. Another provision of the AEDPA, he points

out, specifically prohibits an unsuccessful petitioner from

filing a writ of certiorari, while section 2253 does not -

leading to the inference (he claims) that Congress meant

to allow certiorari review in one setting but not the other.

True, the AEDPA sets up a gatekeeping requirement for

first and successive federal habeas petitions. True also,

Congress specified that certiorari review was not avail-

able for successive gatekeeping decisions while declining

to reiterate the House conclusion for initial gatekeeping

decisions.

There, however, the comparison ends. The two set-

tings serve utterly distinct functions. With respect to the

first federal habeas setting, the gatekeeping provision

serves the certificate-of-probable-cause function

addressed in House: Does the inmate’s claim have suffi-

cient merit to warrant further review? In the successive

habeas setting, the gatekeeping provision serves a differ-

ent function. It asks not whether an appeal may proceed

but whether any petition at all may be filed. Under these

circumstances, Congress acted sensibly in tying a double,

as opposed to a single, statutory knot precluding cer-

tiorari review. While prior successive federal habeas peti-

tioners often faced stringent requirements, they never

faced a hurdle to any district court consideration at all.

Just as consequentially, the inmate seeking leave to

file a successive habeas petition has no option of filing an

application to the Supreme Court in the event the court of

appeals denies his or her request. In stark contrast, first

federal habeas petitioners may freely file an application

to the Court when the lower court denies leave. In the

first federal habeas setting, in other words, Congress had

little reason to worry about confirming that certiorari was

precluded. Not only did House already establish the

point, but the express provision for relief from the Court

through a certificate application supplied ample clarifica-

tion that the certificate, not certiorari, was the appropri-

ate vehicle for responding to a denied leave-to-appeal.

Far from supporting Mr. Hohn’s position, Lindh v.

Murphy, 117 S. Ct. 2059 (1997), undermines it. Lindh asked

whether a specific retroactivity provision in Chapter 154

of the Act (regarding capital cases) implied a lack of

retroactivity for a provision in Chapter 153 regarding the

standard for obtaining habeas relief. That was an apples-

to-apples comparison. For in that setting nothing about

the difference between the two provisions offered a

meaningful reason for Congress to specify a date-of-

application in one section but not the other, except to

imply (as Lindh concluded) that the new rules apply to

pending cases in the first but not the second setting. The

same cannot be said here. In the context of first federal

habeas, Congress clearly spelled out a procedure for

seeking relief from the Court when leave to appeal was

denied. Yet, in the successive habeas context, it chose not

to do so, making the drafter’s repetition wholly appropri-

ate and wholly without implication for the other setting.

That leaves a few other contentions that Mr. Hohn

has raised. What of the Court’s cases concluding that it

possesses jurisdiction to review decisions over which the

court of appeals may have lacked jurisdiction? Does not

review in that setting show that the Court has jurisdiction

to decide a case that has not been permitted “in” the

court of appeals? See, e.g., Pet. Br. 23-26; Nixon v.

Fitzgerald, 457 U.S. 731, 743 & n.23 (1982); United States v.

Nixon, 418 U.S. 683 (1974).

The analogy does not hold. When it comes to the

requirement of a final order, Congress has established a

policy of avoiding piecemeal appeals. That policy, how-

ever, only goes to the efficiency of appellate review, not

to the objective of terminating it altogether. In telling

contrast, the whole point of the gatekeeping requirement,

from its initial appearance in 1908 to the present, has

been to curb “frivolous habeas corpus petitions” by

requiring that a “prisoner first obtain a certificate of

probable cause to appeal before being entitled to do so.”

Barefoot v. Estelle, 463 U.S. 880, 893 n.3 (1983). See id. at 892

(“Congress established the requirement that a prisoner

obtain a certificate of probable cause to appeal in order to

prevent frivolous appeals from delaying the States’ abil-

ity to impose sentences”). See also Jeffries v. Barksdale, 453

U.S. 914, 916 (1981) (“the clear congressional purpose” of

section 2253 is “to impose the certificate-of-probable-

cause requirement as a means of terminating frivolous

appeals in certain habeas corpus cases”) (Rehnquist, J.,

joined by Burger, C.J., and Powell, J., dissenting from

denial of certiorari); Blackmun, Allowance of In Forma

Pauperis Appeals In Section 2255 and Habeas Corpus Cases,

43 F.R.D. 343, 351 (1967) (“a certificate of probable cause

is a requisite to an appeal”).

The Nixon cases merely teach that the Court has

power to assess its own jurisdiction. 457 U.S. at 743 n.23,

418 U.S. at 692. That is why the Court had jurisdiction

then to review the court of appeals’ interpretations of the

final-order doctrine and why the Court has jurisdiction

now to assess its authority to review Mr. Hohn’s petition.

But that does not say anything about whether jurisdiction

over the lower-court decision in fact exists - whether,

here, the Court in fact may review the court of appeals’

denial of Mr. Hohn’s application for a certificate of

appealability. Nothing about the Nixon cases undermines,

let alone overrules, House v. Mayo’s conclusion that the

Court lacks statutory-certiorari jurisdiction to review a

claimant’s failure to obtain leave to appeal. Still less

helpful are the cases reviewing denials of leave to appeal

in forma pauperis. See, e.g, Adkins v. E.I. DuPont de Nemours

& Co., 335 U.S. 331 (1948). They not only fail to address

the jurisidictional issue; but they relate to a statute that

by its terms is not designed to streamline and terminate

appeals, but rather to facilitate them.

As a final reason for overruling House v. Mayo, Mr.

Hohn argues (Pet. Br. 17-21) that certificate-of-appeal-

ability applications fall within the broad definition of

“case” and therefore meet the statutory requirements. But

even the broadest conceptions of the term, see, ¢.g., For-

syth v. Hammond, 166 U.S. 506 (1897), cannot make an

application-to-appeal-a-case itself a case. Nor at any rate

is it appropriate to lose sight of the overriding design of

§ 2253. Why would the legislature try to curb habeas

review by expanding it? What explanation, in other

words, could there possibly be for permitting applica-

tions to justices of the Court as well as certiorari jurisdic-

tion? A reading of §§ 1254(1) and 2253(c)(1) that permits

two-track review of denials for leave to appeal not only

would fail to curb the lack-of-finality problem that

prompted the legislation, Barefoot v. Estelle, 463 U.S. at

892-93, but would positively exacerbate the law’s delays -

by forcing governments and courts to consider two

(rather than just one) attempt at review and by leading to

multi-track review of the court-of-appeals-approved-

issues and the Supreme-Court-approved issues. See infra.

The national legislature deserves more credit than that.

B. Precedent Demonstrates That The Court May

Not Review An Application For A Certificate

Of Appealability Under The All Writs Act.

Besides lacking power to review Mr. Hohn’s petition

under its statutory certiorari authority, the Court also

lacks power to do so under the All Writs Act. Only the

most extraordinary circumstances warrant review under

the All Writs Act, and there is nothing extraordinary

about Mr. Hohn’s situation. Whatever the scope of the so-

called common law certiorari power under § 1651, more-

over, it does not empower the Court to create jurisdiction

that Congress has expressly addressed elsewhere or

indeed taken away.

1. Mr. Hohn’s Petition Raises No Urgency And

Asks The Court To Construe § 1651 To Cre-

ate Jurisdiction That Congress Has

Expressly Addressed Elsewhere.

Consistent with the text of the All Writs Act, the

Court has made clear that necessity remains a threshold

requirement for invoking power under the provision. The

“ ‘Act is a residual source of authority to issue writs that

are not otherwise covered by statute.’ ” Carlisle v. United

States, 116 S. Ct. 1460, 1467 (1996) (quoting Pennsylvania

Bureau of Correction v. United States Marshals Service, 474

U.S. 34, 43 (1985)). The Act at most “empowers federal

courts to fashion extraordinary remedies when the need

arises,” United States Marshals, 474 U.S. at 43; it does not

allow courts to use it “whenever compliance with statu-

tory procedures appears inconvenient or less appropri-

ate,” id. For these reasons, one seeking the writ must

Se ee em. ee

Co mee at a

meet the “burden of showing that its right to issuance of

the writ is ‘clear and indisputable.’ ” Bankers Life & Casu-

alty Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting United

States v. Duell, 172 U.S. 576, 582 (1899)).

One test for discerning such urgency, the Court has

indicated, is the existence of “alternative means” for pro-

viding relief. United States Marshals, 474 U.S at 42 n.7.

“(W]hatever may be done without the writ,” in other

words, “may not be done with it.” Bankers Life & Casualty

Co. v. Holland, 346 U.S. 379, 383 (1953). See also Ex Parte

Peru, 318 U.S. 578, 584 (1943) (“[t]he common law writs,

like equitable remedies, . . . are usually denied where

another adequate remedy is available”). In accordance

with this requirement, the Supreme Court’s Rules warn

litigants that “[t]o justify the granting of any such writ,

the petition must show,” among other things, “that ade-

quate relief cannot be obtained in any other form or from

any other court.” S. Ct. Rule 20(1).

Whether one considers the general requirement of

“exceptional circumstances” or the more specific one of

“alternative” avenues of relief, Mr. Hohn comes up short

in either event. Above all else, Mr. Hohn’s position is

neither unusual nor dire because he may file an applica-

tion for a certificate of appealability with a justice of the

Court. This device provides all the individual relief any

inmate could need, most notably because it empowers the

Court to allow the appeal to proceed. The device also

authorizes the Court to clarify the meaning of the gate-

keeping standard, as the Court is free to (indeed must)

interpret the test in reviewing the application itself. In the

last analysis, while the All Writs Act no doubt provides

“extraordinary remedies,” they “are reserved for really

extraordinary causes.” Bankers Life & Casualty Co. v. Hol-

land, 346 U.S. 379, 385 (1953) (quotation omitted). This

simply is not one of them.

Mr. Hohn’s reliance on the All Writs Act fails for a

second, independent reason. While urgency may be a

necessary precondition for invoking the Act, the Court

has made clear that it is not by itself a sufficient explana-

tion for exercising power under the Act. Section 1651 thus

is a “residual source of authority to issue writs that are

not otherwise covered by statute. Where a statute speci-

fically addresses the particular issue at hand, it is that

authority, and not the All Writs Act, that is controlling.”

Carlisle v. United States, 116 S. Ct. at 1467 (1996) (quota-

tion omitted). The Court therefore has “rejected use of the

all writs provision to enable the Court to review a lower

court’s determination where jurisdiction did not lie under

an express statutory provision.” United States Marshals,

474 US. at 41.

Consistent with these views, Carlisle refused to allow

a litigant to rely on the All Writs Act to file a motion for a

judgment of acquittal one day after the time limit pre-

scribed by the Rules of Criminal Procedure. Even though

the delay was counsel’s fault, not the defendant's, and

even though the district court determined that it would

acquit the individual, the Court concluded that since Rule

29 “specifically addresses the particular issue at hand,”

the All Writs Act does not apply. 116 S. Ct. at 1467

(quotation omitted). In like manner, United States Mar-

shals declined to authorize a district court judge under

the Act to order federal marshals to transport State pris-

oners to testify as witnesses at a § 1983 hearing. Because

several federal statutes established procedures relating to

the “issue at hand,” the Court reversed the lower court

decision, relying on case law “reject[ing] use of the all

writs provision to enable the Court to review a lower

court’s determination where jurisdiction did not lie under

an express statutory provision.” 474 U.S. at 41 (citation

omitted).

This modern view rests on the shoulders of several

earlier cases. In U.S. Alkali Export Assn. v. United States,

325 U.S. 196, 203 (1945), for example, the Court came to a

similar conclusion:

The writs may not be used as a substitute

for an authorized appeal; and where, as here,

the statutory scheme permits appellate review

of interlocutory orders only on appeal from the

final judgment, review by certiorari or other

extraordinary writ is not permissible in the face

of the plain indication of the legislative purpose

to avoid piecemeal reviews.

U.S. Alkali, it is true, ultimately allowed review of a

non-final order by writ of certiorari. But it did so not

because the All Writs Act may be “used as a substitute for

an authorized appeal” but because the district court was

charged with exceeding a limitation placed on its jurisdic-

tion by Congress. Id. at 203-04. That explanation may just

as easily justify a writ of prohibition as distinct from one

of certiorari. At any rate, the exception is sound. For like

reasons, this Court could exercise its all writs power to

prevent a court of appeals from reviewing a first federal

habeas petition after leave to appeal had been denied. The

U.S. Alkali exception for lower courts that overstep their

jurisdictional boundaries, in other words, simply proves

the general rule.

Other cases invoke the general rule as well. See, ¢.g.,

De Beers Consolidated Mines, Ltd. v. United States, 325 U.S.

212, 217 (1945) (“When Congress withholds interlocutory

reviews, [the All Writs Act] can, of course, not be availed

of to correct a mere error in the exercise of conceded

judicial power”); Roche v. Evaporated Milk Assn., 319 USS.

21, 27-28 (1943) (the All Writs Act “may not be resorted to

as a mode of review where a statutory method of appeal

has been prescribed”) (“Where the appeal statutes estab-

lish the conditions of appellate review, an appellate court

cannot rightly exercise its discretion to issue a writ whose

only effect would be to avoid those conditions and thwart

Congressional policy”); United States v. Beatty, 232 U.S.

463, 467-68 (1914) (the common law writ of certiorari may

not be used as a substitute for an authorized appeal); In re

Commonwealth of Massachusetts, 197 U.S. 482, 488 (1905)

(“in cases over which we possess neither original nor

appellate jurisdiction we cannot grant . . . certiorari as

ancillary thereto”); McClung v. Silliman, 19 U.S. (6 Wheat.)

598, 601-02 (1821) (the Act was “intended” only to “vest

the power . . . in cases where the jurisdiction already

exists, and not where it is to be courted or acquired, by

means of the writ proposed to be sued”); McIntire v.

Wood, 11 U.S. (7 Cranch) 504 (1813). As these cases illus-

trate, the Act does not empower the Court to exercise

jurisdiction that Congress has elsewhere expressly

addressed.

In light of this case law, Mr. Hohn may not use the

All Writs Act to escape the requirements of §§ 2253 and

1254. From 1908 forward, Congress has been steadfast in

curbing frivolous habeas cases by enacting and reenact-

ing legislation that denies inmates leave to appeal merit-

less claims. Plainly, this is a case in which there is not just

one, but two, “express statutory provision[s]” that

already address the jurisdictional issue. Just as Mr. Hohn

could not use the All Writs Act to sidestep the 90-day

limitation for filing a statutory petition for a writ of

certiorari, see 28 U.S.C. 2101(c), he may not use it to

circumvent the requirements of §§ 2253 and 1254.

A reading of § 1651 that allows inmates to escape the

jurisdictional imperatives of these specific provisions also

slights the singlemindedness of Congress’s efforts to curb

endless habeas review. It presumes that the same govern-

ment body with stewardship over §§ 2253(c)(1) and

1254(1) somehow meant to defeat these efforts through

§ 1651. And, worse, it transforms the All Writs Act from a

“sparingly exercised” (Parr v. United States, 351 U.S. 513,

520 (1956)) “residual source of authority” concerning

cases within the Court’s jurisdiction (Carlisle v. United

States, 116 S. Ct. 1460, 1467 (1996)) into a roving “source

of jurisdiction.” No cases support this view, and several

positively reject it. The invitation should be rejected, the

Court’s cases preserved, and Congress’s sensible and

express legislative design left intact.

2. Neither House v. Mayo Nor Any Other Deci-

sion Alters This Conclusion.

Neither House v. Mayo nor any of the other cases

upon which Mr. Hohn and the federal government have

relied alter this conclusion. No doubt, from all that

appears on the face of House v. Mayo, there would seem to

be little reason to adhere to the first half of the opinion

(which precludes jurisdiction under § 1254(1)) while dis-

regarding the second (which permits jurisdiction under

§ 1651). But an examination of the statutes at issue in

House eliminates any such inconsistency.

When the Court decided House in 1945, all three

pieces of this statutory puzzle were in place - the gate-

keeping requirement, the All Writs Act and the certiorari

statute. Yet, while the All Writs Act and § 1254 paralleled

in meaningful respects the language of the statutes today,

see Appendix, the same cannot be said about the gate-

keeping requirement. Unlike the modern version of

§ 2253, the 1945 law did not permit an application to a

justice of the Supreme Court. It allowed leave only from

“the United States court by which the final decision was

rendered or a judge of the circuit court of appeals.” 28

U.S.C. 466 (1940); see Appendix.

The change in law is dispositive, first because it

eliminates any urgency, and second because it (together

with the AEDPA) supplies the kind of “express statutory”

direction that precludes reliance on the All Writs Act.

Nothing about Mr. Hohn’s situation today compares with

the predicament that Mr. Mayo faced in 1945. Once the

court of appeals denied leave to appeal, Mr. Mayo had

nowhere to go but the All Writs Act to correct a seem-

ingly mistaken interpretation of the gatekeeping require-

ment. Mr. Hohn, of course, has no such problem. He may

file an application with a justice of the Court, which at

once provides a congressionally-approved method for

dispensing individual justice and a vehicle for ensuring

uniform treatment of the gatekeeping standard. Under

these circumstances, Mr. Hohn cannot tenably claim that

he is asking the Court to do something Congress has

authorized under the Act, which is to say “fashion

extraordinary remedies when the need arises.” United

States Marshals, 474 U.S. at 43. Whether such urgency

existed in 1945 or not, it plainly does not exist today.

Likewise, by specifically granting inmates the option

of seeking leave to appeal from this Court in 1948 and by

enacting the detailed - and more stringent — provisions of

the AEDPA in 1996, Congress supplied the kind of delib-

erate statutory direction that precludes resort to the All

Writs Act. As the cases frequently repeat, the Act may not

“enable the Court to review a lower court's determination

where jurisdiction did not lie under an express statutory

provision.” United States Marshals, 474 U.S. at 41. The

specifics of § 2253 regarding the path for reviewing

habeas corpus petitions, coupled with the prescribed

route for seeking review under § 1254, make continued

existence of a statutory-common-law writ of certiorari as

anachronistic in this setting as it is confusing.

Like House v. Mayo, each of the other cases upon

which the federal government and Mr. Hohn rely either

fail to address the jurisdictional issue or involve a situa-

tion in which the requirements of § 1651 had been met. In

In re 620 Church Street, 299 U.S. 24 (1936), for instance, the

Court invoked the Act to review a district court’s con-

firmation of a plan of bankruptcy reorganization. But it

did so not just because statutory certiorari jurisdiction

did not exist (that would vest jurisdiction over any lower

court order), but because the “auxiliary process” of the

writ was “a means of giving full force and effect to

existing appellate authority and of furthering justice in

other kindred ways.” Id. at 26 (emphasis added) (internal

quotation omitted). Unlike a bankruptcy reorganization

plan, which the Court may later review after a final order

has been obtained, no “existing appellate authority” is

available over the denial of a leave to appeal — unless or

until a judge or justice grants leave. Without such leave,

in other words, a habeas case terminates under federal

law, while a bankruptcy case does not.

Nor, under these circumstances, may even such an

agreeable standard as “furthering justice” assist Mr.

Hohn. He cannot show that a single injustice has come

his way until the Court denies his application. The

greater the injustice he claims at the hands of the court of

appeals, moreover, the less likely the Court will deny an

application. The same problem exists under — and defeats

- other broad characterizations of the standard for using

the writ - e.g., “its use must only be ‘reasonably neces-

sary in the interest of justice.’ ” U.S. Br. 32 (quoting Adams

v. United States ex rel. McCann, 317 U.S. 269, 274 (1942)).

Even a test of reasonable necessity must meet the Court's

own rules for granting extraordinary writs, which require

a showing that “adequate relief cannot be obtained in any

other form.” S. Ct. R. 20(1). The certificate option defeats

any such showing.

Policy considerations also do not favor altering this

congressional framework. Surely a court of appeals’ gate-

keeping decision “in violation of equal protection or

other fundamental constitutional principles” (U.S. Br. 30)

will not stand in the way of an application decision by

this Court reminding lower courts of the correct stan-

dard. Contrary to Mr. Hohn’s suggestion (Br. 30), more-

over, once a justice refers such an application to the

whole Court, the Court plainly may issue a decision that

constitutes “binding precedent.” Nor is the application

process that Congress created “a clumsy and burden-

some” way (U.S. Br. 32) for ensuring uniform interpreta-

tion of the gatekeeping standard or for preserving the

Court's ultimate right to review the merits of a habeas

petition. In this case, for example, how does the applica-

tion relief to which Mr. Hohn may be entitled differ in

any meaningful way from the grant-vacate-remand order

that the Solicitor General has proposed? Both simply

prevent the case from being terminated, and both orders

may convey as little or as much direction as the Court

wishes. Such concerns at any rate are best addressed to

the members of Congress, who are sure to reply that the

system of review they have allowed represents a vast

improvement on the two-track system that review by

common law certiorari and certificate application would

compel.

IV. Mr. Hohn’s Other Arguments Exceed The Scope Of

The Question Presented, And Have Been Waived.

Mr. Hohn also asks (Br. 40-49) the Court to treat his

petition as an application for a certificate of appealability,

and to consider whether the certificate requirement

should apply to him even though he filed his appeal after

the AEDPA became effective. Both requests should be

rejected.

In each respect, Mr. Hohn seeks to expand the scope

of the narrow jurisdictional question that the Court asked

to be briefed and argued. Neither one of these conten-

tions, moreover, was mentioned in the petition for a writ

of certiorari, and one (application of the gatekeeping

standard to the appeal) was not even raised below. Mr.

Hohn’s petition plainly assumed that the gatekeeping

requirement applies. Indeed, the thrust of the petition

was that the Court should grant certiorari to resolve a

lower-court division of authority over the meaning of the

test. On this record, the Court properly granted certiorari

to review a jurisdictional question that assumes the appli-

cability of the Act to this appeal. It is wholly appropriate

to continue to resolve the petition on that assumption,

since Mr. Hohn initiated it and the Court had every

reason to accept it. See Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 280 (1993) (observing that “the Peti-

tion for Certiorari (not the Brief in Opposition and later

briefs) . . . determines” scope of the petition); Parker v.

Randolph, 442 U.S. 62, 77 (1979) (plurality) (“Although

petitioner sought review of this ruling, our grant of cer-

tiorari was limited to the [one] issue”).

Nor will Mr. Hohn suffer any discernible harm if the

Court declines to convert the petition into an application

to a justice or the Court. No time restrictions curb Mr.

Hohn’s authority to file an application. He remains free

to file one after the jurisdictional issue has been resolved,

or he may file a protective application (as he now has

done) in the event he loses the jurisdictional issue.

Because he was recently placed on parole (Pet. Br. 4), he

also has regained one of the most vital interests that a

§ 2255 motion seeks to vindicate. At all events, because

Mr. Hohn now has filed an application to Justice Thomas

for a Certificate of Appealability, amicus curiae intends to

seek leave of Court to file a response to the application,

which would seem to be the proper jurisdictional route

for addressing these matters.

One might fairly ask what difference all this makes.

Does it really matter whether the Court has jurisdiction to

review this matter under its statutory certiorari powers,

as Mr. Hohn claims, under its common-law certiorari

powers, as Mr. Hohn and the federal government claim,

or under its certificate-of-appealability powers, as the

parties and amicus curiae agree?

The question, of course, does matter: It implicates the

Court’s unique and most essential power. At stake is

whether Congress vested the Court with jurisdiction to

review Mr. Hohn’s petition, then (if it did) whether fed-

eral prosecutors violated the United States Constitution

in convicting Mr. Hohn. Rightly appreciating that

“[flederal courts are courts of limited jurisdiction” that

“possess only that power authorized by Constitution and

statute,” Kokkonen v. Guardian Life Ins. Co. of America, 511

U.S. 375, 377 (1994), the Court long has been careful to

avoid “expand|[ing] by judicial decree” the statutory juris-

diction that Congress has given it, id.

In modestly “presum[ing] that a cause lies outside

this limited jurisdiction,” the Court has placed the “bur-

den of establishing the contrary” “upon the party assert-

ing jurisdiction.” Kokkonen, 511 U.S. at 377 (citing McNutt

v. General Motors Acceptance Corp., 298 U.S. 178, 182-83

(1936)). See also Durousseau v. United States, 10 US. (6

Cranch) 307, 314 (1810). This self-deprecating “practice of

strict construction of statutes authorizing appeals,” the

Court has emphasized, “dictates that we not give an

expansive interpretation” of such laws. Fornaris v. Ridge

Tool Co., 400 U.S. 41, 42 n.1 (1976) (per curiam). Even

when “there is a present need to expand the jurisdiction

of [the federal] courts,” the Court has reminded litigants

that it will not “overlook the fact that the Constitution

specifically vests that power in the Congress, not in the

courts.” Snyder v. Harris, 394 U.S. 332, 341-42 (1969).

This custom of jurisdictional self-restraint makes

sense for the branch of government responsible for

reviewing every other branch’s compliance with the rule

of law. By erring on the side of denying for itself rather

than seizing power, by ensuring in other words compli-

ance with the Constitution’s delegation of authority to

Congress to regulate the Court’s appellate jurisdiction,

the Court “teaches the whole people by its example.”

Olmstead v. United States, 277 U.S. 438, 485 (1928)

(Brandeis, J., dissenting).

More than just example, however, explains the

Court’s discretion in this area. When the Court interprets

grants of authority from Congress to itself, it wears two

hats: It not only must construe the reach of power, but it

then may exercise it as well. That distinguishes the dis-

pute from all others in which the Court referees the

extent of legislative or constitutional delegations of

power. For example, when the Court construes a grant of

power, say, to executive agencies, it remains appropriate

to draw inferences from congressional ambiguity in favor

of jurisdiction for the executive branch. See Chevron,

U.S.A. v. Natural Resources Defense Council, 467 U.S. 837

(1984). But, when the Court construes congressional

grants of authority to itself, it acts as a referee and a

player, making reticence uniquely appropriate. In the

end, no rule of construction in favor of jurisdiction for the

Court, or any other type of default rule (compare Pet. Br.

34-35, 40; U.S. Br. 14), applies here. If anything, the

Court’s careful practices point precisely in the opposite

direction.

In the final analysis, however, default rules and other

ambiguity crutches are not needed to resolve this dispute.

The unmistakable words of the provisions themselves

make clear that Mr. Hohn has just one mechanism, not

three, for obtaining leave to appeal. It is the certificate of

appealability that Congress explicitly provided by enact-

ing 28 U.S.C. 2253(c)(1).

CONCLUSION

For the foregoing reasons, the Court should dismiss

the petition for lack of jurisdiction.

Respectfully submitted,

Jerrrey S. SUTTON

30 E. Broad Street

17th Floor

Columbus, Ohio 43215

(614) 466-8980

Court-appointed Amicus Curiae

January 1998

A-1

APPENDIX

I. The Gatekeeping Provision

A. 1908

That from a final decision by a court of the

United States in a proceeding in habeas corpus

where the detention complained of is by virtue

of process issued out of a State court no appeal

to the Supreme Court shall be allowed unless

the United States court by which the final deci-

sion was rendered or a justice of the Supreme

Court shall be of opinion that there exists proba-

ble cause for an appeal, in which event, on

allowing the same, the said court or justice shall

certify that there is probable cause for such

allowance.

Act of March 10, 1908, ch. 76, 35 Stat. 40.

B. 1925

From a final decision by a court of the United

States in a proceeding in habeas corpus where

the detention complained of is by virtue of pro-

cess issued out of a State court no appeal to the

circuit court of appeals shall be allowed unless

the United States court by which the final deci-

sion was rendered or a judge of the circuit court

of appeals shall be of opinion that there exists

probable cause for an appeal, in which event, on

allowing the same, the said court or judge shall

certify that there is probable cause for such

allowance.

Act of February 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940,

942; 28 U.S.C. 466.

A-2

C. 1948

An appeal may not be taken to the court of

appeals from the final order in a habeas corpus

proceeding where the detention complained of

arises out of process issued by a State court,

unless the justice or judge who rendered the

order or a circuit justice or judge issues a certifi-

cate of probable cause.

A-3

The Certiorari Statute

A. 1891

And excepting also that in any such case as

is hereinbefore made final in the circuit court of

appeals it shall be competent for the Supreme

Court to require, by certiorari or otherwise, any

such case to be certified to the Supreme Court

for its review and determination with the same

Act of June 25, 1948, ch. 646, § 2253, 62 Stat. 967, 28 U.S.C. power and authority in the case as if it had been

2253. carried by appeal or writ of error to the

Supreme Court.

Act of March 3, 1891, ch. 517, § 6, 26 Stat. 828.

D. 1996 To Present

(c)(1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be B. 1911

taken to the court of appeals from - In any case, civil or criminal, in which the

judgment or decree of the circuit court of

appeals is made final by the provisions of this

Title, it shall be competent for the Supreme

Court to require, by certiorari or otherwise,

upon the petition of any party thereto, any such

(B) the final order in a proceeding under case to be certified to the Supreme Court for its

section 2255. review and determination, with the same power

and authority in the case as if it had been car-

(2) A certificate of appealability may issue ried by appeal or writ of error to the Supreme

under paragraph (1) only if the applicant has Court.

made a substantial showing of the denial of a

constitutional right.

(A) the final order in a habeas corpus pro-

ceeding in which the detention complained

of arises out of process issued by a State

court; or

Act of March 3, 1911, ch. 231, § 240, 36 Stat. 1157.

(3) The certificate of appealability under para-

graph (1) shall indicate which specific issue or Cc. 1925

issues satisfy the showing required by para-

graph (2). In any case, civil or criminal, in a circuit

court of appeals, or in the Court of Appeals of

the District of Columbia, it shall be competent

28 U.S.C. 2253(c) (Supp. II 1996).

~ oe ' for the Supreme Court of the United States,

Act of February 13, 1925, ch. 229, § 240(a), 43 Stat. 938.

28 U.S.C. 1254(1); see Act of June 27, 1988, Pub. L. 100-352,

§ 2(a), 102 Stat. 662; Act of June 25, 1948, ch. 646, 62 Stat.

928.

A-4

upon the petition of any party thereto, whether

Government or other litigant, to require by cer-

tiorari, either before or after a judgment or

decree by such lower court, that the cause be

certified to the Supreme Court for determination

by it with the same power and authority, and

with like effect, as if the cause had been brought

there by unrestricted writ of error or appeal.

D. 1988 To Present

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following

methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal

case, before or after rendition of judgment

or decree;

The All Writs Act

A. 1789

That all the before-mentioned courts of the

United States shall have power to issue writs of

scire facias, habeas corpus, and all other writs

not specially provided for by statute, which may

be necessary for the exercise of their respective

jurisdictions, and agreeable to the principles

and usages of law.

Judiciary Act of 1789, § 14, 1 Stat. 81.

B. 1911

The Supreme Court and the district courts

shall have power to issue writs of scire facias.

The Supreme Court, the circuit courts of

appeals, and the district courts shall have power

to issue all writs not specifically provided for by

statute, which may be necessary for the exercise

of their respective jurisdictions, and agreeable to

the usages and principles of law.

Act of March 3, 1911, ch. 231, § 262, 36 Stat. 1162.

C. 1949 To Present

The Supreme Court and all courts estab-

lished by Act of Congress may issue all writs

necessary or appropriate in aid of their respec-

tive jurisdictions and agreeable to the usages

and principles of law.

28 U.S.C. 1651(a); Act of May 24, 1949, ch. 139, § 90, 63

Stat. 102.

IV. Supreme Court Rule 20.1

Issuance by the Court of an extraordinary writ autho-

rized by 28 U.S.C. 1651(a) is not a matter of right, but of

discretion sparingly exercised. To justify the granting of

any writ, the petition must show that the writ will be in

aid of the Court’s appellate jurisdiction, that exceptional

circumstances warrant the exercise of the Court's discre-

tionary powers, and that adequate relief cannot be

obtained in any other form or from any other court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.