Oldham’s “Factual Innocence” Is Absurd

It’s painful to read the hyperbolic rhetoric of Ian Milhiser at Vox, if only because it’s like watching an aneurysm happen in real time, but beneath the hysteria can an actual legitimate point be found on occasion. This was such an occasion, under the obviously persuasive headline, America’s Trumpiest court doesn’t care if your right to a fair trial was violated.

Last Thursday, however, a far-right panel of the United States Court of Appeals for the Fifth Circuit effectively eliminated state prisoners’ right to seek what is known as a “writ of habeas corpus” when they are imprisoned in violation of the Constitution or federal law, except in cases of “factual innocence.”

Judge Andrew Oldham’s decision in Crawford v. Cain is completely lawless. It finds this novel requirement that an unconstitutional or illegal conviction or sentence must stand, unless the prisoner shows they are innocent, within a federal statute that states that federal courts hearing habeas cases “shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” Oldham, along with the two other Republican-appointed judges who joined his opinion, claims that only factual innocence “satisfies the law-and-justice requirement.”

The problem is that Ian’s grievance is right. The decision is baseless, irrational and contrary to essentially the entirety of American habeas jurisprudence. Or to put it another way, Trump appointee Judge Andrew Oldham defines “as law and justice require” to be factual innocence because, well, that’s what he believes. And this case was a facile vehicle for such a decision, given the horrific crimes involved.

Crawford was convicted of raping a 17-year-old girl (Kelly Roberts), assaulting a 16-year-old girl (Nicole Cutberth) with a hammer, and raping and murdering a 20-year-old woman (Kristy Ray). The series of gruesome crimes began on April 13, 1991.

Charles Ray Crawford is not the sort of fellow for whom you cry sad tears, despite his efforts to win at trial by an insanity defense that was rejected by the juries in each of this three trials, two of which offered expert testimony and one did not.

The present appeal involves only Crawford’s conviction for raping Roberts. Crawford directly appealed his rape conviction in state court and almost succeeded in getting a new trial: The Mississippi Supreme Court affirmed his conviction by a 5–4 vote. See Crawford v. State, 192 So. 3d 905 (Miss. 2015).

Crawford next tried his luck at state postconviction relief. Again, he failed. Crawford argued for the first time that the trial court violated his procedural due process right to expert assistance in his insanity defense under Ake v. Oklahoma, 470 U.S. 68 (1985), along with many other claims. The Supreme Court of Mississippi held that Crawford procedurally defaulted his Ake claim because it “could have been raised in the direct appeal.” The court also denied Crawford’s ineffective-assistance-of-counsel claims and found the rest of Crawford’s claims to be “without merit.”

The procedural status is hardly unusual, and routinely trashed for failure to properly raisee and preserve arguments along the way. Whether you’re good with lack of preservation arguments, or the exceptionally low bar of Strickland v. Washington when it comes to effective assistance of counsel, there is little here that would have cause a circuit court to break a sweat in affirming the district court’s denial of the writ.

But Judge Oldham saw his opportunity and seized it.

Law and justice do not require habeas relief—and hence a federal court can exercise its discretion not to grant it—when the prisoner is factually guilty. See Davenport, 142 S. Ct. at 1523 (concluding “guilt[]” is the primary consideration in evaluating whether “law and justice” require the writ (quotation omitted)); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 142 (1970) (“[W]ith a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.”)

To dispute this stunningly inane yet baseless claim, Ian feels constrained to offer similarly absurd examples to make even the simplest of his readers froth at the mouth.

And yet, under Oldham’s made-up rule, these judges would be stripped of their authority to toss out even the most egregious state-level convictions. Here are a few examples of habeas cases that would fail under Oldham’s framework:

• Florida passes a law making it a crime to criticize Florida Gov. Ron DeSantis. Pursuant to this law, Florida arrests and imprisons my colleague Zack Beauchamp because Zack published an article likening DeSantis’s policies to those of Hungarian dictator Viktor Orbán. Zack challenges his conviction in the Florida Supreme Court, but that court votes 4-3 to sustain his conviction — with all four of DeSantis’s appointees forming the majority. Under Oldham’s rule, Zack would be unable to seek habeas relief, because he is not factually innocent of the “crime” of criticizing DeSantis.
• Zoe is a 13-year-old middle school student who shoplifts a $1 pack of gum from a convenience store. She is arrested, convicted, and sentenced to death. Under the Supreme Court’s decision in Roper v. Simmons (2005), a juvenile offender may not be sentenced to die. And under the Court’s decision in Kennedy v. Louisiana (2008), death is not a lawful punishment for a relatively minor crime like shoplifting. Nevertheless, Oldham’s rule would prevent Zoe from filing a habeas petition challenging this excessive sentence.
• Paul, who has an intellectual disability, was sentenced to death in 1999. Three years later, in Atkins v. Virginia (2002), the Supreme Court held that “death is not a suitable punishment” for someone with an intellectual disability. Nevertheless, under Oldham’s rule, Paul would not be able to seek habeas relief for an obviously unconstitutional death sentence.
• The governor of Texas, perhaps taking inspiration from former Philippine President Rodrigo Duterte’s drug war, orders state police to raid every Texan’s home to search for illegal drugs. This violates the Fourth Amendment, which requires police to show that they have probable cause to believe that they will find drugs in a particular individual’s home, and to obtain a warrant, before conducting a search. Nevertheless, the Texas Supreme Court — which is made up entirely of members of the governor’s political party — rules that these convictions may not be challenged. Under Oldham’s rule, thousands of individuals who were unlawfully imprisoned because police broke into their homes and found a joint would be stripped of their habeas rights.

The problem is that these examples may be ridiculous, but Ian’s not wrong that Oldham’s factual innocence formulation would preclude the grant of the § 2255 petition. While it’s unfortunate that Ian has framed his argument in such a way as to guarantee that no one who doesn’t share Ian’s progressive pathology with either read his tripe or be persuaded by his spewings, the Fifth Circuit’s decision is outrageously and dangerously wrong. I hate it when Ian’s not wrong, but he’s not wrong about this decision.