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Eleventh Circuit gives the "Great Writ" some notable life

By Douglas A. Berman

A helpful reader alterted me to a "blockbuster of an Eleventh Circuit opinion that just came down" late yesterday and that give habeas review an equitable jolt. The procedural details of the ruling in Gilbert v. US, No. 09-12513 (11th Cir. June 21, 2010) (available here), are complicated, but this paragraph highlights why this ruling is so notable: The government?s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government?s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law.  The common law tradition of the ?Great Writ? cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is ?in custody in violation of the Constitution or laws or treaties of the United States...continue to full post

Full post as published by Sentencing Law and Policy on June 22, 2010 (boomark / email).