this same period the Eastern District
civil docket in general, including the number of other pro se cases,
continued to grow. Indeed, in the calendar year 1999, there were 471
weighted filings per judge (including senior judges) in the Eastern
District of New York — a case load which the Judicial Council of
the Second Circuit recently concluded justified three additional judges
in the Eastern District of New York.
The civil pro se cases, in particular, required my personal attention,
as well as that of my law clerks. These filings include large numbers of
pro se civil rights cases, and motions to summarily dispose of them, that
require careful, individual attention by my clerks and then myself.
Unlike pro se habeas cases, in which the petitioners have received full
appellate review with the assistance of counsel, this is the first and
only opportunity for these pro se civil rights plaintiffs. Spending
scarce law clerk time drafting memoranda in every one of what Justice
Jackson described almost a half century ago — when the number were
much smaller — as the "floods of stale, frivolous, and repetitious
petitions," Brown v. Allen, 344 U.S. 443, 536, 73 S.Ct. 425 (1953),*fn2
simply means less time and more delay for other more deserving pro se
litigants who, unlike habeas peti tioners, have never had the benefit of
While I do not believe it is appropriate, or within the power of the
Court of Appeals, to instruct a district court judge that he or she may
not summarily dispose of a case without any extended discussion, the
practical effect of a ruling requiring any more than a statement that the
petition has been thoroughly considered will result in substantial delays
in deciding these habeas corpus cases — especially if more than a
summary order is contemplated. Such a ruling will also divert a judge's
personal attention from other cases that require it. Unlike the Second
Circuit, which screens out hopeless cases by certificates of
appealability "carefully processed for the judges by well-trained clerks
assigned for the purpose," Henry J. Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 144, n.
9 (1970), judges of the district court can rely only on themselves and
their limited chambers staff. Surely, it is ironic that a procedure that
provides a litigant with more personal judicial consideration than they
get from the Second Circuit should be the subject of question.
I cannot conclude without addressing one last issue. The question
framed in the certificate of appealability appears to suggest that the
lack of a detailed written opinion indicates a failure to conduct "a
thorough review and independent analysis of the petition." Or, at least,
that it is appropriate to question whether such an analysis took place. I
do not believe that either suggestion is fair. On the contrary, the
threshold issue here is whether a district judge should be able to
incorporate by reference portions of the record or submissions by the
parties that adequately apply the law to the facts of the case in reach
ing his or her determination, as opposed to simply rewriting significant
parts of these papers.
Reliance on the reasons stated in the opinion of the Appellate Division
as the basis for the denial of the writ hardly reflects the lack of "a
thorough review and independent analysis of the petition." In fact,
reliance on the Appellate Division decision, which, as a general rule, is
entitled to deferential rather than de novo review,
28 U.S.C. § 2254(d)(1), seems partic ularly appropriate. See Pinkney
v. Keane, 920 F.2d 1090, 1098-99 (2d Cir. 1990) (noting that habeas
corpus application is "simply another stage in the same case" and citing
1 J. Liebman, Federal Habeas Corpus Practice and Procedure § 26.2, at
387-88 (1988) in support of "the increased acceptance of the appellate
analogy to federal habeas corpus"). Indeed, the Second Circuit often
follows the practice of issuing summary orders, some published and some
not published, affirming denials of habeas petitions based on the opinion
of the district court. This practice is also followed in criminal and
civil cases of all kinds. Does this practice particularly in cases where
the order is unpub lished — reflect the absence of a thorough
review and independent judgment?
Similarly, it is difficult to see why reliance on a well-drafted
memorandum of law by the District Attorney reflects an absence of careful
consideration. Only recently, in a summary order, a panel of the Second
Circuit disposed of an appeal as follows:
Defendant Jose Pina appeals from the judgment entered
in the district court, upon his plea of guilty, con
victing him of conspiring, in violation of
18 U.S.C. § 371, to violate various sections of
Title 21 concerning the proper handling, packaging and
distribution of prescription medication, see
21 U.S.C. § 331(a)-(c), (k), (t); 333(a)(2),
We have considered whether we should vacate the defen
dant's plea because the conspiracy count of the indict
ment failed to charge a felony, and because this fail
ure rendered the plea allocution defective. We find
these arguments to be without merit.
U.S. v. Aurora, No. 98-1267, 2000 WL 979167, at *1 (2d Cir. July 13,
2000). This is an affirmance without any statement of explanation. It
simply states a conclusory assertion that the arguments are without
merit. Is such an order preferable to a statement pointing to the
arguments set out in the memorandum of law filed by one of the parties?
I stop here, because I did not start to write a contentious brief
— only to provide assurance that I personally "conducted a thorough
review and independent analysis" before denying the thirteen petitions
that have been consolidated for consideration of the issue certified. I
have referred to the summary practice of the Court of Appeals only
because I believe that district court judges should enjoy the same
discretion in deciding meritless cases as the Court of Appeals enjoys.
Those decisions should also enjoy the presumption that, however
stated reasons, the result reflects that the judge has given the matter
appropriate personal consideration.
Two of the fifteen cases at issue here involve appeals from summary
denials of habeas corpus petitions by Chief Judge Korman. He has
authorized me to say that he joins in the discussion at pages 5-8 of this
memorandum. Chief Judge Korman declines to file a statement in aid of the
jurisdiction of the Court of Appeals because he believes that the
appellate jurisdiction of the Second Circuit extends only to deciding
whether or not the judgments denying the writ were legally correct, and
not to instructing district court judges on how much discussion is
required in a summary order. The latter issue is one addressed, if at
all, to the Judicial Council of the Second Circuit. See
28 U.S.C. § 332(d)(1).
The appeals of the orders denying or dismissing the
petitions for a writ of habeas corpus in the following
fourteen cases have been related to the instant case:
Alcantara v. Keane, No. 97-CV-1851(DGT) (E.D.N.Y. May
27, 1999) (2d Cir. No. 99-2387)
Bannon v. Commissioner, No. 98-CV-5559(DGT) (E.D.N.Y.
June 8, 1999) (2d Cir. No. 99-2340)
Chang v. Artuz, 97-CV-2344(DGT) (E.D.N.Y. May 3, 1999)
(2d Cir. No. 99-2309)
Collins v. Stinson, No. 99-CV-293(DGT) (E.D.N.Y. July
27, 1999) (2d Cir. No. 99-2497)
Konstantin v. Hynes, No. 98-CV-1481(DGT) (E.D.N.Y.
April 9, 1999) (2d Cir. No. 99-2248)
Rudenko v. Costello, No. 97-CV-6362(DGT) (E.D.N.Y.
April 9, 1999) (2d Cir. No. 99-2242)
Miranda v. Bennet, No. 99-CV-437(DGT) (E.D.N.Y. July
27, 1999) (2d Cir. No. 99-2718)
Spencer v. Artuz, No. 97-CV-2355(DGT) (E.D.N.Y. April
20, 1999) (2d Cir. No. 99-2304)
Williams v. Senkowski, No. 97-7050(DGT) (E.D.N.Y.
April 20, 1999) (2d Cir. No. 99-2276)
Johnson v. Keane, No. 97-CV-5649(DGT) (E.D.N.Y. March
29, 1999) (2d Cir. No. 99-2277)
Woodard v. Irvin, No. 96-CV-1750(DGT) (E.D.N.Y. August
12, 1999) (2d Cir. No. 99-2524)
Woodard v. Senkowski, No. 97-CV-3072(DGT) (E.D.N.Y.
August 12, 1999) (2d Cir. No. 99-2524)
Defina v. Albaugh, No. 99-CV-5064(ERK) (E.D.N.Y.
October 27, 1999) (2d Cir. No. 99-2692)
Gandarilla v. Artuz, No. 99-CV-508(ERK) (E.D.N.Y. June
14, 1999) (2d Cir. No. 99-2531)