29 October 2007

Extraordinary Relief Statistics

Shorter version of How Appealing blogger Howard Bashman's column: Requests for rehearing after losing an appeal of right, including requests for rehearing en banc, or certiorari review from a higher court are mostly futile.

I believe that most appellate judges would agree that litigants and their lawyers who are on the losing end of intermediate appellate court rulings are filing far too many requests for further review in cases that do not satisfy the stringent criteria for such review.

He also notes, however, that there are few remedies to the problem that make sense. Requiring courts to slog through all requests and having them deny most of them is often the most practical option.


Some facts from dkospedia back up that assertion in the federal courts:

For example, in 2002, the U.S. Courts of Appeal decided 27,758 cases on the merits, while the U.S. Supreme Court decided only 150 cases on the merits, only a little more than two-thirds of which were from U.S. Courts of Appeal (thus more than 99.5% of U.S. Court of Appeals rulings were the final word on the issues decided) . . . . in a typical state in a typical year, only about one appeal from a state supreme court is decided by the U.S. Supreme Court on the merits. More than 99% of U.S. Court of Appeals and State Supreme Court cases are not reviewed by the U.S. Supreme Court on the merits.

The number of state court civil cases which even present a federal issue for U.S. Supreme Court review is a fairly small share of the entire state supreme court docket.

En Banc Review

The number of en banc reviews granted in the U.S. Court of Appeals each year nationwide is roughly the same as the number of U.S. Supreme Court certiorari grants.

Habeas Corpus Review

Collateral habeas corpus relief is similarly very rare.

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.

The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.


Pardons of persons who have not completed their sentences and commutations (i.e. sentence reductions), are similarly very, very rare (you can count on your fingers the number issued by President George W. Bush since taking office). There are, however, a steady trickle of pardons of people who have long ago served their criminal sentences and since reformed that are issued merely to relieve individuals of the collateral effects of their convictions.

State pardon data is hard to come by, but state level pardons of persons who have not completed their sentences and commutations are very rare, particularly outside death penalty cases.

Discretionary Review in Colorado

Colorado does not have, to the best of my knowledge, a system of en banc review in the Colorado Court of Appeals.

Because it is a fairly small state, with two levels of appellate courts, it has a higher rate of state supreme court review of intermediate court of appeals rulings than many states. About 2-3% of all cases decided on the merits by the Court of Appeals are reviewed on the merits by the Colorado Supreme Court, and on the order of 20%-30% of published opinions of the Colorado Court of Appeals are reviewed on the merits by the Colorado Supreme Court.

Only a tiny percentage of decisions of county and municipal courts, about 645 a year out of more than 530,000 county court cases and an undetermined number of municipal court cases, are appealed (generally to district courts) and a very small percentage of those are ultimately reviewed by the Colorado Supreme Court.

Information about collateral attacks on convictions in state court is harder to find. The most common form of collateral attack is known as a Rule 35(b) motion.

Duh Review (Requests For Rehearing From The Decision Maker)

Getting the panel that decided your case against you to revise a ruling against you (or for that matter getting a trial court judge to do the same thing) normally requires an error in the opinion that would cause a reasonable appellate judge to say, "duh, I screwed that up, didn't I?" in a motion for reconsideration with a number of pages in the low single digits. Mistakes that are reasoned rather than inadvertant are almost never reversed on rehearing.

Examples of the kind of case suitable for that kind of motion include: opinions that cite as key support for the ruling a case that actually had a ruling opposite of the one it is cited for; reliance on key facts present in a case other than the one decided in the opinion; reliance on a key date, number or legal description for the ruling which is cited incorrectly from the record in the opinion; omitting the word "not" or misstating the opinion's ultimate ruling when the entire gist of the remainder of the opinion indicates that the opposite result was intended, getting the parties switched accidentally; or on very rare occasions, failing to mention at all a clearly controlling case (particularly if decided just before or just after briefing was completed) and instead citing one that the controlling case overruled.

Also, winning parties and repeat litigants are frequently able to have opinions that don't quite get a complicated set of facts quite right restated in a modified opinion that does not materially change the holding of the opinion.

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