Habeas Provisions Will Hurt

Fact Sheet: Habeas “deform” provisions will negatively affect gun owners

The “Government Terror” bill will severely damage the ability of the courts to rescue honest gun owners who are unjustly incarcerated, and thus, will seriously affect cases in which GOA is currently involved. Pro-gun Rep. Helen Chenoweth (R-ID) introduced an amendment on the House floor to delete this (Title IX) provision from H.R. 2703. “The effects of this title are not limited to death penalty cases,” Chenoweth said. “Most of them covered noncapital cases as well, including cases where citizens were wrongfully prosectuted for exercising their constitutional rights to keep and bear arms.”

Supporters of this “deform” provision claim that a gun owners can file a Habeas Corpus petition at any time, even after the draconian deadlines imposed by the bill, if the defendant can show that newly discovered evidence proves his innocence.

This statement is very misleading. To say that a gun owner can file a habeas petition, even after the one year deadline, ignores the fact that this proposed legislation raises hurdles so high that effectively all such petitions would be immediately thrown out. These hurdles would require gun owners to prove an impossible negative by a very high standard — “clear and convincing evidence” — that but for the absence of that newly discovered evidence, alone, not one juror could have found the convicted person guilty.

Habeas Corpus: Gun Owners’ Defense Against BATF Lying

For example, BATF officials have recently revealed that their records pertaining to registered firearm owners are very inaccurate. Given the fact that they routinely testify in court that these records are 100% accurate, this recent admission brings into question many cases where the BATF has successfully convicted certain gun owners for failing to register their firearms under the National Firearms Act. The question is, would H.R. 2703 (or S. 735) allow these gun owners to successfully bring a habeas petition? Nothing stops them from filing a petition; they have a First Amendment right to put the piece of paper before the court. But the bill almost definitely precludes them from achieving review, let alone relief.

If the convicted gun owner could successfully use a habeas petition to get a new trial, he could probably raise a reasonable doubt in at least one juror’s mind if not many, many more, that BATF’s shabby record keeping should preclude a guilty verdict. But this bill would substantially raise the burden of proof. The gun owner would, in essence, now have to show that no one of 12 jurors [“no reasonable factfinder”] would have declared him guilty in light of the newly discovered evidence. As there is no non-death penalty right to habeas counsel, most persons convicted of gun offense will have to try to prove this unmeetable standard without a lawyer.

Furthermore, some House offices claim that the Habeas provisions in the “terrorism bill” are the same provisions passed by the House last year. Not true. The habeas provisions in the “Government Terror” bill imposes a more draconian time limit for filing a Habeas appeal in federal court. This time limit, for those convicted under a federal statute (e.g., under the federal firearms laws), is significantly reduced in the “Government Terror” bill. The deadline for such filings would be one year in the terror bill rather than two years as under last year’s bill (H.R. 729). This is especially draconian in non-death penalty, firearms (e.g., BATF) cases. In these cases the convicted persons will almost always be forced to meet the deadline without a lawyer, again, because there is no statutory right to counsel in such cases. Moreover, it’s important to remember that the deference provision in the habeas package in the terror bill and H.R. 729 was not even part of the original Contract with America, but was offered as a floor amendment to H.R. 729. The deference provision forces the federal courts to defer to state court decisions on the federal constitution — even if wrong — and thus, will negatively impact honest gun owners affected by unconstitutional Second Amendment rulings.

Habeas Corpus: Gun Owners’ Defense against Anti-gun Judges

This deference standard would have greatly affected GOA’s ability to assist in Kenneth Ellman’s defense — a gun owner who has been unfairly jailed. Ellman is a resident of New Jersey who is presently incarcerated in New York. Mr. Ellman had belonged to a New York organization that had been permitted to carry concealed firearms. When that permission was withdrawn, New York demanded that members of the group turn in their guns.

Mr. Ellman refused to turn in his guns, because all of his guns were legally owned and kept in New Jersey. On an infrequent trip to New York, Mr. Ellman was “kidnapped” by the New York police and brought before New York courts which have incarcerated him indefinitely for “contempt” of court.

After what seemed like endless state litigation, Mr. Ellman has won a Habeas Corpus appeal and a federal court has instructed New York to litigate the case fairly and properly. (While this is nice, it is going to be an even greater drain on Mr. Ellman’s resources.) The federal court rebuked the state court and stated that “Guns may not be politically-correct property, but they remain property.”

This terrorism legislation would erect an almost insurmountable burden when it comes to successfully making the type of appeal which Ellman made. As stated by Stephen Halbrook, who has litigated many cases for the NRA, gun owners who are railroaded by anti-gun state judges will have no recourse under the provisions of the terrorism bill “as long as the federal court could not conclude that the state court conclusion was wholly unreasonable according to well-established case law. Given the contempt some courts have for selective parts of the Constitution, particularly the ’embarrassing’ Second Amendment and the ‘incredibly shrinking’ Fourth Amendment, this will be no standard at all.”

Halbrook states in the conclusion of his article appearing in the March 20 issue of The New Gun Week:

The Tenth Amendment protects the powers reserved to the States from federal intrusion, thus barring the take-over of State powers by the federal courts. But the States have no legitimate power to deprive citizens of life, liberty, or property without due process of law, any more than they have power to infringe on the right of the people to keep and bear arms. The right to file a petition for a writ of habeas corpus in federal court to review constitutional violations affirmed by a State court is essential to preserve all of our rights. It is one more, essential fail-safe check against arbitrary government.

The meaningful ability of federal courts to review an unconstitutional state court ruling is essential to preserve our rights — Second Amendment or otherwise. Congress should not restrict this very important Writ.