U.S. Supreme Court Justice Clarence Thomas has taken to task a federal appeals court for not publishing a 40-page opinion that gave a prisoner the benefit of a presumption of judicial vindictiveness in his state court sentencing.
The criticism came in Thomas’ dissent from the Supreme Court’s denial of review of a habeas writ granted by the 4th U.S. Circuit Court of Appeals in a 2-1 per curiam panel opinion. Petitioner Timothy Austin said a West Virginia state court had shown vindictiveness in ordering his escape sentence to be served consecutively, after he petitioned for mandamus to get the court to decide how his additional sentence was to be served.
When the respondent warden appealed to the U.S. Supreme Court, Thomas wanted to take the case, saying “confusion reigns” when it comes to lower courts’ varied approaches to judicial vindictiveness. The high court should have taken Austin’s case in order to consider the 4th Circuit’s “more expansive view” of judicial vindictiveness, Thomas said in an opinion joined by Judge Antonin Scalia.
Thomas also expressed frustration with the unpublished status of the appeals court opinion.
“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness” and wrote a lengthy opinion over a dissent.
“By any standard – and certainly by the Fourth Circuit’s own – this decision should have been published. … It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit,” in order to preserve its “ability to change course in the future,” Thomas concluded.
One source says recent figures show that 88 percent of the 37,820 opinions issued by federal appeals courts in 2013 were categorized as “unpublished.”
The high volume of the 4th Circuit’s unpublished work product has drawn attention in recent years. The distinction has lost some practical value, as easy access to unpublished opinions and a modest rule change have had the effect of relaxing the rule against citing unpublished opinions.