By Pat Reisinger


            It is no secret that in the later stages of his career Justice Stevens developed misgivings on the justification of the death penalty for administration of criminal justice. See, e.g., Baze v. Rees, 553 U.S. 35, 78 (2008) (Stevens, J., concurring) (expressing belief that the death penalty is retained by state legislatures as a matter of “habit and inattention”). It is probably his misgivings, more than anything, which caused the court to take the extraordinary step of transferring the original petition of Anthony Troy Davis for a writ of habeas corpus to the United States District Court for the Southern District of Georgia. In re Davis, 130 S.Ct. 1, 1 (2009) (Stevens, J., concurring). The district court found that Davis’ purported “new evidence” did not contradict the material evidence that he had murdered Mark Allen MacPhail in 1989, concluding, “Mr. Davis is not innocent.” (That order available from ScotusBlog here). The district court later denied a Certificate of Appealability to the Eleventh Circuit to Mr. Davis. The district court indicated confusion as to its role. That confusion is shared. The Supreme Court’s taking of original jurisdiction raised more questions than it answered.

            The denial of a Certificate of Appealability is not the end of the story, in that a circuit judge can issue her own certificate. 28 U.S.C. § 2253(c)(1)-(c)(1)(A); Fed.R.App.P. 22(b). A circuit judge could perhaps rule that under § 2244(b)(2)(B)(ii) the facts establish by clear and convincing evidence that Davis is innocent. However, given the extensive factual findings from the evidentiary hearing, it is not likely. See, Nowakowski v. Maroni, 386 U.S. 542 (1967) (requiring Circuit Judges give weighty consideration to district court denial of habeas relief).

            The Notice of Appeal to the Eleventh Circuit also cites 28 U.S.C. § 1291 for the proposition that the Court of Appeals has jurisdiction over “all final decisions” of district courts within its circuit. Notice of Appeal to the Eleventh Circuit, 2. However, § 1291 makes an exception for decisions “where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291.

            The district court assumed it was exercising the Supreme Court’s original jurisdiction, analogizing itself to a magistrate. To be sure, Congress has authorized magistrates to hear habeas petitions. 28 U.S.C. § 636(b)(1)(B); seeMcCarthy v. Bronson, 500 U.S. 136, 140 (1991). However, federal magistrate judges can be distinguished at the very least on the lack of job security. See 28 U.S.C. § 636(i). It seems likely that should the Supreme Court have desired to retain its original jurisdiction, it would have made it explicit within its opinion. See In re Davis, 130 S.Ct. 1, 1 (2009). Lacking explicit Congressional justification, it seems that the Supreme Court may be off limits for Troy Davis.

            All of this is simply speculation, however. As Supreme Court Rule 20.4 recognizes, a grant of an original habeas petition is a rare event. That the court took such a step may indicate actual belief in Davis’ innocence, and the Court could defy all expectations.