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August 10, 2000


The opinion of the court was delivered by: Trager, District Judge.


On May 4, 2000, the Court of Appeals granted a certificate of appealability in this case and in fourteen other habeas corpus cases. See Appendix A. The issue on which the certificate was granted is "whether a district court may dismiss a 28 U.S.C. § 2254 petition without providing an order which indicates that the court conducted a thorough review and independent analysis of the petition."

The practice that I have followed in deciding state habeas petitions since the Spring of 1999 is this: When all of the papers have been collected and the petition is ready for consid eration, I personally review the petition, responding papers, any state court decisions, as well as the relevant parts of the record. If a case appears to have substantial merit, I appoint counsel (if the petitioner appears pro se). If I am uncertain about the merits of the case I ask my law clerk to take a closer look and prepare a memorandum before determining whether to appoint counsel or to decide the case without doing so. If the case clearly appears to have no merit, I deny the petition summarily based upon my own personal and thorough review of the relevant parts of the record. Normally, when I do so I rely either on the opinion of the Appellate Division, if it contains a discussion of the relevant issue, or upon the discussion con tained in the memorandum of law filed by the District Attorney or both. When the Appellate Division invokes its discretion, as the Second Circuit often does, to summarily dismiss some arguments as lacking sufficient merit to warrant discussion, the memorandum filed by the District Attorney often provides a more complete factual and legal context for those issues.

Additionally, when I believe the case warrants it, I write a thorough, detailed opinion explaining my reasons for denying the writ. Indeed, since adopting my present practice for handling habeas petitions last year, I have filed five such opinions, detailing legal issues which I believe were either novel or of some significance. See Campbell v. Sabourin, 37 F. Supp.2d 601 (E.D.N.Y. 1999); Sellan v. Kuhlman, 63 F. Supp.2d 136 (E.D.N Y 1999); Leka v. Portuondo, 76 F. Supp.2d 258 (E.D.N.Y. 1999) (86 pages); Leka v. Portuondo, 76 F. Supp.2d 295 (E.D.N.Y. 1999) (denying certificate of appealability) (22 pages); Elcock v. United States, 80 F. Supp.2d 70 (E.D.N.Y. 2000). I have also written a lengthy opinion justifying my grant of a petition for a writ of habeas corpus. See Jones v. Stinson, 94 F. Supp.2d 370 (E.D.N.Y. 2000) (58 pages).

I feel particularly comfortable in employing this procedure for three reasons. First, the area of law is one in which I have developed a special expertise through nearly thirty years of teaching, practice, and judging. Second, the complexity of the procedural aspects of habeas law has been immeasurably increased with the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), making the subject particularly difficult for law clerks, who serve only one year, to master. Third, and most importantly, it is precisely because I do not rely on law clerks that I feel that proceeding in this way is appropriate.

The summary procedure described above is the same one that I followed in the thirteen cases at issue here. I did not stop to write an opinion in these cases not only because they were meritless, but because of the enormous increase in the number of state habeas petitions since AEDPA became law.*fn1 Moreover, during 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 counsel.

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), (b)(1)(D); 353(e)(2)(A).
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 ...

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