Florida’s criminal defense and criminal appeals attorneys who are familiar with the Eleventh Circuit’s reluctance to grant habeas relief will not be surprised to learn that, unfortunately, even if the Government concedes that relief should be granted, their clients may STILL not win on appeal.  The opinion of Rozier v. United States, No. 11-13557, is just the latest example.  At a mere 23 pages, which is quite short by Eleventh Circuit standards, the opinion is a great read because you can practically see the majority and the dissent pointing their fingers at eachother.   Unfortunately for Mr. Rozier, the end result of the opinion is that he has to serve time far beyond what his sentence would have been without the erroneous career offender enhancement.  See Rozier, slip op., pg. 14 (Hill, J., dissenting).

Judge Hill’s dissent is an absolute pleasure to read.  Rather than sum up the 9 page dissent for you, I thought I should just quote a particularly eloquent portion:

I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.  We have repeatedly held that procedural rules deprive us of the ability to correct an enhancement that we all agree is error because it was not authorized by law when imposed.  To the petitioner, who is serving five, ten or even fifteen years more than he would be in the absence of the error, we say, “Sorry.  We know your enhancement was error, but there is nothing we can do.  Our hands are tied by procedural rules.  We cannot fix this.”

We do this in the name of “finality.”  We say we are protecting the integrity of the Great Writ; we cannot go about correcting old mistakes or no conviction or sentence will ever be final.

Of course, finality is desirable.  There was a time when there appeared to be no finality in our habeas procedures.  The rules we adopted to introduce some finality into the habeas process were long overdue.

But finality must not be our highest goal.  The Great Writ is enshrined in our Constitution because we believe that no one may be deprived of life, liberty, or property by the government in violation of law.  If a petitioner can show that he is illegally incarcerated, he is entitled to release.  Fairness requires it.  Justice is the ultimate goal in the grant of the Writ.

But we have increasingly come to define what is “just” by what our procedural rules permit.  Recently, the State of Alabama, a panel of this court, and two justices of the Supreme Court agreed that an Alabama prisoner could be put to death as the result of his lawyers – who abandoned his case – having missed a filing deadline. Our court held that we would not – could not – consider the merits of his claim due to this procedural default.  I agree with the member of this panel who dissented in the Alabama case, writing that in certain cases procedure must “yield to the imperative of correcting a fundamentally unjust [sentence].”  Seven members of the Supreme Court agreed with that view, reversing our court.  See Maples v. Thomas, 132 S. Ct. 912 (2012).

In Maples, there was no certainty that there had been error in the conviction or sentence.  In Rozier’s case, however, there is certainty.  We know that the enhancement of his sentence was error.

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.”  On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution.  As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.” Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

Clearly justice is not the intended beneficiary of these procedural safeguards.  On the contrary, the safeguards are designed to protect finality.  If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional.  In any event, I cannot join in this elevation of form over substance; of finality over fairness.

Due process is the defining virtue of our system of criminal justice.  But we should ask ourselves why.  Is it because it achieves finality?  Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant.  The goal is a correct result – not simply the provision of process.  To be sure, we do not guarantee a correct result.  But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

This is especially true where the petitioner is in federal custody, not state custody.  We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism.  Neither of these considerations is due the erroneously sentenced federal prisoner.  It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law.  I am weary of our court’s relentless effort to put more and more procedural angels on the head of the habeas pin.  At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).

I respectfully dissent.