Massachusetts Law Review

Hard Times for the Great Writ: Sheriff of Suffolk County v. Pires

Sheriff of Suffolk County v. Pires, 438 Mass. 96 (2002)

In recent years, the scope of habeas corpus jurisdiction, especially at the federal level, has been the subject of both judicial scrutiny and legislative reform. Most notable among the changes is the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which, for the first time, imposed a limitations period on state habeas petitions filed in federal courts.1 AEDPA was aimed, in part, at reducing what was perceived to be an excessive habeas corpus caseload.

Whether AEDPA has proved too strict a restraint on habeas corpus review continues to be the source of lively debate. Excessive or not, however, AEDPA is by no means sui generis; rather, it forms part of a long-standing trend, both state and federal, toward regularizing the mechanisms for habeas corpus review, and aligning them more squarely with ordinary post-conviction remedies. Sheriff of Suffolk County v. Pires, the case under examination here, stands solidly in that tradition. While it offers none of the sweeping, objective change of AEDPA, it nonetheless may suggest a further narrowing of the range of habeas corpus review in Massachusetts.

1. Background

The writ of habeas corpus, "one of the bedrock principles of Anglo-Saxon law," derives from Magna Carta of 1215 and, even more directly, from England's Habeas Corpus Act of 1676.2 It is codified in the organic law of Massachusetts as follows:

The privilege and the benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.3

The federal Constitution affords similar protection, providing that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public safety may require it."4

The form of relief provided by the writ of habeas corpus is neither obscure nor complex. "Habeas corpus is the historic remedial process whenever it appears that one is deprived of his liberty without due process of law . . . ."5 To obtain a writ of habeas corpus, a petitioner must show that:

(1) there has been a violation of the State or Federal Constitution or laws; (2) the violation has deprived him of his personal liberty; and (3) he is entitled to "immediate release" from the custody of the respondent.6

A distinctive, if not defining, feature of habeas corpus relief is that it is directed at the facial authority of a prisoner's detention, not the underlying factual or substantive merits of any judicial proceeding, including especially a criminal conviction. On this basis, it is often said that habeas corpus "cannot be employed as a substitute for ordinary appellate procedure."7

Due to the nature of the relief provided - i.e. immediate release from restraint - the writ may be granted only to a petitioner who is, at the time, actually in custody.8 Release on some other basis before the writ is issued renders a habeas corpus petition moot. Likewise, habeas corpus relief is generally limited to situations in which granting the writ actually will result in a petitioner's immediate release. This, however, is not an ironclad principle, and some jurisdictions permit the use of habeas corpus "to permit present litigation of an applicant's right to future release."9

2. Modern Reforms

Despite its ancient pedigree and constitutional underpinnings, the status of the Great Writ arguably has been diminished in recent years as states have sought to regularize their procedures for post-conviction remedies. Recognizing that the summary (and often civil) procedures surrounding habeas relief are not ideally suited to the resolution of complex allegations of error, many states have chipped away at the range of situations in which defendants may seek release through a writ of habeas corpus.

In 1968, the Advisory Committee on Sentencing and Review of the American Bar Association promulgated Standards Relating to Post-Conviction Remedies. This quickly became the key document in reforming the nature of habeas corpus relief in many jurisdictions, including Massachusetts. At the outset of the report, the committee asserts that "[n]othing . . . [herein] is intended to derogate in any way from the honored place of the Great Writ of Freedom, habeas corpus."10 However, almost immediately thereafter, the report notes:

While constitutional guarantees of the right to the writ of habeas corpus may be thought to prevent any interference with that revered remedy, no serious impediment arises from postponing or subordinating such a remedy, to be available only when and if the primary remedy is for some reason unavailing or inadequate . . . .11

To the extent that habeas corpus relief was specifically designed "to bring about the speedy liberation of illegally imprisoned persons," such "postponing or subordinating" almost certainly reduces the scope of protection afforded by habeas corpus. Indeed, most of the state post-conviction regimes that grew out of the ABA report purport to place significant limits on the Great Writ.

3. Rationalization of Post-Conviction Remedies in the Commonwealth

In Massachusetts, 1979 was a watershed year for post-conviction procedural reforms. In that year, the Legislature adopted the current Rules of Criminal Procedure and also made significant revisions to General Laws chapter 248, a codification of habeas corpus law. These statutory changes purported to alter significantly the scope of habeas corpus relief.

Rule 30(a) of the Massachusetts Rules of Criminal Procedure states on the subject of "Unlawful Restraint," that:

[a]ny person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.

Citing the ABA Standards Relating to Post-Conviction Remedies, the Reporter's Notes to Rule 30(a) emphasize that the purpose of the provision is to "consolidate[] the previously distinct procedures of habeas corpus and writ of error." The Reporter's Notes make it clear that Rule 30(a) is the preferred, if not sole, medium for pressing most forms of collateral attack on criminal convictions, relegating habeas corpus to "limited application[s]" such as "cases contending that the term of a lawfully imposed sentence has expired and basing a claim for relief on grounds distinct from issues arising at the indictment, trial, conviction or sentencing stages."12

The state legislature simultaneously amended chapter 248, section 25 to provide, inter alia, that a "court shall have no power to issue a writ of habeas corpus, at its discretion, for . . . a person who is imprisoned or restrained of his liberty pursuant to a criminal conviction."13 Previously, section 25 had permitted courts in the commonwealth to issue a writ to any person "who is imprisoned or restrained of his liberty pursuant to a criminal conviction" to the extent that "law and justice require."14 The combined effect of these provisions was to attempt to establish Rule 30(a) "as the exclusive vehicle for postconviction relief."15

The extent to which these statutory changes altered the habeas corpus landscape in Massachusetts is well illustrated by the Supreme Judicial Court's ("SJC") opinion in In re McCastle.16 The defendant in McCastle had been convicted of assault by means of a dangerous weapon upon indictments for armed assault with intent to rob, and sentenced to a state prison term. He alleged in his habeas corpus petition that his confinement was unlawful on the theory that assault by means of a dangerous weapon is not included within the offense of armed assault with intent to rob; i.e. that he was convicted of a crime for which he was not properly charged.17 A single justice dismissed the petition on grounds that such a claim can only be advanced under Rule 30(a).18

On appeal, the full court agreed, holding that "McCastle's rule 30 remedy is no less adequate or effective than the traditional discretionary issuance of a writ of habeas corpus."19 While acknowledging the right to petition for habeas corpus is guaranteed by the Massachusetts Constitution, Part II, chapter 6, art. 7, the SJC held that "the Legislature could fairly conclude that it is in the best interests of a defendant, as well as of the Commonwealth,"20 that such post-conviction attacks be heard by the same judge who presided over the trial, and in the manner prescribed by Rule 30.21 In essence, the SJC determined in McCastle that Rule 30 adequately protected the defendant's constitutional right to a "speedy disposition" of his claim, and as such was a satisfactory substitute for habeas corpus.22

The difficulty with the holding in McCastle is there are a number of objective differences between the nature of the relief afforded by Rule 30, as opposed to that provided by the Great Writ. Moreover, even if Rule 30 were the functional equivalent of habeas corpus review, it is unclear whether, even so, it could displace a constitutionally protected procedural vehicle. Both of these points were taken up by the SJC in In re Averett,23 decided about a year after McCastle.

In Averett, the defendant alleged in his habeas petition that the Commissioner of Correction had wrongly ordered the forfeiture of earned statutory good time credits with the result that the defendant was being held after he had served his full sentence.24 After a hearing, a Superior Court judge issued a writ of habeas corpus.25 In the context, at least initially, of reviewing a stay request, the Appeals Court determined that the defendant was not entitled to habeas corpus relief, but rather should have proceeded under Rule 30.26 The Appeals Court then vacated the writ. On further review, the SJC disagreed.27

The SJC began with the proposition that the Massachusetts Constitution "guarantees the enjoyment of writs of habeas corpus."28 The court then went on to note that, to the extent that Rule 30 or chapter 248, section 25 negates a criminal defendant's right to obtain habeas corpus relief, those provisions "may run afoul . . . of the Constitution of the Commonwealth."29 Specifically, the court observed "where a petition for habeas corpus is based on grounds distinct from the issues at indictment, trial, conviction, or sentencing stage, we have commented favorably on the propriety of issuing writs of habeas corpus."30

In retreating from the position set out in McCastle, the court in Averett identified a number of factors that distinguish habeas relief from the remedy afforded by Rule 30, including:(1) Rule 30 requires a defendant to submit his motion to the same judge who presided over his trial, while a habeas corpus petition may be heard by any judge of the same court where the defendant was tried or a higher court; (2) Rule 30 is subject to strict waiver rules while no such limitations apply to habeas corpus petitions; (3) a prisoner is not entitled to release pending any appeal of a Rule 30 ruling, while a successful habeas corpus petitioner must be released immediately; and (4) habeas corpus petitions "must be heard freely, easily, cheaply, expeditiously, and amply," requirements that do not apply to Rule 30.31

On the basis of these distinctions, the court in Averett concluded that Rule 30(a) cannot wholly supplant habeas corpus relief.32 Rather, where the scope or form of habeas corpus relief is sufficiently distinct from any proposed legislative substitute, the constitutional remedy must remain available. Since its decision in Averett, the SJC has not significantly altered its approach to habeas corpus review.

4. Sheriff of Suffolk County v. Pires33

On Aug. 22, 2001, Paulino Pires was indicted on various firearms charges.34 He was arraigned in the Superior Court, and released on bail. While free on bail, the defendant was arrested in connection with new, unrelated assault and firearms charges.35

After his arraignment on the new charges, and after the entry of a bail order with respect to those new charges, the government immediately sought to have the defendant's bail with respect to the Aug. 22, 2001, indictments revoked.36 On the basis of the defendant's subsequent arrest, and over the defendant's motion for a continuance to permit him to call witnesses on his behalf, a District Court judge summarily revoked the defendant's bail.37

The defendant then filed a petition for a writ of habeas corpus in the Superior Court.38 A Superior Court judge remanded the case to the District Court for a further hearing on the government's motion to revoke the defendant's bail. However, the judge ordered further that if it were determined that she lacked the power to so remand the case, her order should be deemed a writ of habeas corpus, entitling the defendant to immediate release under the terms of the original bail order entered with respect to the Aug. 22, 2001, charges.39

Apparently upon request of the government, the Superior Court judge stayed her order. The sheriff of Suffolk County, as the official nominally charged with holding the defendant (and so the entity named in the habeas corpus petition), filed a petition under chapter 211, section 3, challenging the Superior Court judge's authority to issue a writ of habeas corpus in this situation.40 The sheriff's petition was duly heard by a single justice of the Supreme Judicial Court. The single justice reported the following question to the entire court: "Is a petition for a writ of habeas corpus a proper means of appealing from a bail revocation proceeding under G.L. c.276, section 58?"41

The court began its analysis of the reported question by quickly dispensing with the defendant's claim the case was governed by chapter 248, section 21, relating to habeas corpus relief from the denial of admission to bail.42 The court reasoned the initial question of eligibility for bail is completely distinct from any issues surrounding the revocation of bail once granted.43 Under the plain language of section 21, the statute was wholly inapposite.44

The court then moved to the fundamental question of whether habeas corpus relief is ever available in the context of bail revocation. As a starting point, the court recited the basic proposition that "habeas corpus . . . 'cannot be employed as a substitute for ordinary appellate procedure."45 To bring the case within the purview of this proscription, the court characterized the defendant's claim thus:

Pires does not contend that there is no law authorizing the revocation of his bail . . . or that he is being held beyond the lawful (sixty-day) term of his commitment. Rather, his challenge is directed at the adequacy of the evidence and process used in committing him under the law. In substance he seeks a review of the underlying judgment revoking bail . . . .46

Summarizing its position, the Pires court observed that, in the circumstances, habeas corpus review was an "awkward and unsuitable" means "to challenge important determinations of fact and law made in the trial court . . . ."47 The Superior Court judge should not have issued the writ.

There are, however, problems with this approach. In the first instance, while the record is sparse, it appears the basis for the defendant's petition was wholly procedural; namely, the denial of his request for a continuance of the bail revocation hearing for the purpose of presenting witnesses, as provided for in chapter 276, section 58. Passing over the substantive question of whether the revocation hearing judge violated the law in denying such a request, the denial of due process with respect to a proceeding that results in imprisonment, in Massachusetts as elsewhere, is a traditional, if not typical basis for issuing a writ of habeas corpus.48 Contrary to the holding in Pires, it does not appear the defendant, in fact, sought any "review of the underlying judgment revoking bail," but merely alleged he was deprived of procedural due process.

As an alternative basis for concluding that habeas corpus relief was not appropriate, the court in Pires also cited the fact that "the writ would not have resulted in [the defendant's] immediate release from the custody of the sheriff" because the defendant also was being held "for want of posting the $25,000 bail imposed on the new offenses."49 The difficulty with this point is that, for habeas corpus purposes, "immediate release" is not necessarily the equivalent of unfettered freedom. Rather, the question may be whether the petitioner is entitled to immediate relief from the particular basis of detention challenged in the application for the writ.

In Averett, for example, the SJC endorsed habeas corpus relief for the defendant even though it had the result of merely transferring the defendant from the custody of the state prison to a county jail where the defendant was to be held on unrelated charges.50 This accords with the practice in other jurisdictions where habeas corpus relief has been upheld even though a defendant attacked one of several consecutive sentences, and the writ affected only "the applicant's right to liberty at a future date."51 Arguably, in Pires it was sufficient to support habeas corpus relief that the defendant would have been released from confinement on the basis of the allegedly defective revocation proceeding.

Moreover, it is unclear whether the defendant in Pires ever had the opportunity to post bail on the subsequent charges while committed on the basis of Aug. 22, 2001, offenses. The revocation hearing apparently occurred immediately after his bail hearing on those later charges. Any notion that the defendant was required to post bail with respect to the subsequent charges, an act that even if permitted under chapter 276, section 58 would have had no effect on his liberty, to perfect his right to habeas corpus relief, seems dubious at best.

Finally, the SJC in Pires justified its conclusion that habeas corpus relief could never be used to challenge bail revocation because "an alternative avenue of relief exists"; namely, a petition under chapter 211, section 3, the SJC's general superintendence power over the courts of the commonwealth.52 To that end, the Pires court relies on three recent cases in which various aspects of bail proceedings were challenged, at least nominally, by way of a petition under chapter 211, section 3.53 Under Averett, however, the mere availability of an alternative remedy by no means automatically vitiates the constitutional right to habeas corpus. Indeed, relief under chapter 211, section 3 may well be an inadequate replacement in the circumstances of Pires.

In the first instance, relief under chapter 211, section 3, like relief under Rule 30, is not the functional equivalent of habeas corpus relief. While the chapter 211, section 3 procedure is certainly amenable to summary process, there is no guarantee of the same anywhere in the statutory provision. Further, as with rulings under Rule 30, further proceedings, in the case of petitions under chapter 211, section 3, a report to the full court, are possible, if not common. In short, the two mechanisms - habeas corpus and chapter 211, section 3 - are not the same.

Further, the court in Pires did not explain why, even if, a petition under chapter 211, section 3 is sufficiently akin to a petition for a writ of habeas corpus to serve as the latter's replacement, a chapter 211, section 3 petition is preferable to a writ of habeas corpus. Indeed, most of the same criticisms typically lodged against habeas corpus review - summary character, not performed by a judge familiar with the case, not subject to time or waiver limits - can be made with equal force against chapter 211, section 3 review. There is no denying the practical bases for preferring the more structured system of review afforded by Rule 30 as compared to habeas corpus proceedings; it is difficult to see any similar advantages inherent in review under chapter 211, section. In any event, the court in Pires articulated none.

5. What Pires Means for the Future of Habeas
Corpus Review in Massachusetts

It is possible that Pires represents a step back from Averett, toward the more restrictive approach to habeas corpus relief embodied by McCastle. Without question, the court in Pires stretches to find bases for concluding that the defendant had failed to meet the traditional requirements for obtaining a writ. It is difficult to say, on the sparse record, that the defendant was doing anything more than asserting a facial defect in the process of the revocation hearing. Further, the notion that the petitioner had, in fact, failed to meet the requirement of entitlement to immediate release is very much open to debate.

However, by far the most cogent suggestion of a retrograde step is the court's strong reliance on the availability of a petition pursuant to chapter 211, section 3 as an alternate, equivalent avenue of redress. The central holding of Averett, and the point where it plainly departed from McCastle, was the notion that the mere existence of other forms of review was not a sufficient predicate for denying a defendant access to a constitutionally protected method of redress. Rather, to be a lawful substitute, the alternative must approximate the relief accorded by the Great Writ. In Pires, the court did little more than recite the existence of an alternative approach, as if to suggest that alone was sufficient to meet constitutional requirements.

Whether such strong resonances of McCastle augers further limits on the availability of habeas corpus review remains to be seen. At the very least, Pires has now removed challenges to bail revocation orders from the range of grievances that may be addressed through a habeas corpus petition - a retreat from prior SJC law suggesting that an "alternative procedural route[] for challenging a bail revocation order . . . [included] a petition for a writ of habeas corpus."54 Future claims will now have to be advanced under chapter 211, section 3.55

It is certainly possible that the preference for the use of a chapter 211, section 3 petition in this context was driven purely by practical concerns: habeas petitions fall expressly within the purview of the attorney general's office; a bail revocation challenge by means of a chapter 211, section 3 petition likely would be prosecuted by the assistant district attorney assigned to the case in the trial court.56 The SJC may have regarded such a system as a more economical allocation of skilled resources. As the Reporter's Notes to Rule 30(a) suggest, notions of practicality and efficiency were a principal impetus behind the overhaul of post-conviction remedies in Massachusetts.57 However, in Averett at least, the SJC concluded the mere existence of an alternative remedy, efficient or not, did not extinguish the constitutional right to habeas corpus relief.

In the end, it may be a question of appellate hegemony, rather than court efficiency, that drives not only decisions like Pires, but the modern reform of post-conviction remedies generally. "The long standing rule of the Commonwealth is that an appeal does not lie from an issuance of the writ of habeas corpus."58 Thus, when a trial judge issues a writ of habeas corpus, the action may well be non-reviewable. To the extent that appellate courts view themselves as the final arbiters of questions of law, this may represent a troubling encroachment.

When the concept of habeas corpus arose, the modern concept of appellate review did not yet exist. Against the current backdrop of ready access to substantive review of all orders and judgments, a strong case can be made for relegating habeas corpus petitions solely to the most mechanical forms of scrutiny, and reserving substantive questions of any kind for the regular appellate regime. As the Appeals Court recently observed in In re Crowley, "habeas corpus is particularly apposite . . . [to cases involving] issues of mathematical computation."59 Although Pires does not say so explicitly, the case may well point toward the day when habeas corpus petitions, at least in Massachusetts, will be available to challenge only the most mundane ministerial errors in sentence calculations. So much for the "Great Writ."

1. 28 U.S.C. 2255 para. 6(1). See also White v. Pliler, 2003 U.S. Dist. Lexis 7877 (N.D. Cal. 2003).[back]

2. ABA Standards Relating to Post-Conviction Remedies (Approved Draft 1968), p.24 (1967) (hereinafter ABA Standards).[back]

3. Mass. Const. Part II, c.6, art. 7.[back]

4. U.S. Const. art I.[back]

5. Petition of O'Leary, 325 Mass. 179, 184 (1950).[back]

6. In re Crowley, 54 Mass. App. Ct. 447, 451-52 (2002) citing Stokes v. Superintendent, Mass. Correctional Inst., Walpole, 389 Mass. 883, 886 (1983).[back]

7. Crowell v. Commonwealth, 352 Mass. 288, 289 (1967).[back]

8. Wyeth v. Richardson, 10 Gray 240, 241 (1857).[back]

9. ABA Standards, supra note 2, at 41.[back]

10. ABA Standards, supra note 2, at 24.[back]

11. Id. at 25.[back]

12. Mass. R. Crim. P. 30(a), Reporter's Notes.[back]

13. Mass. Gen. Laws ch. 248, ß 25 (emphasis added).[back]

14. Id.[back]

15. Leaster v. Commonwealth, 385 Mass. 547, 549 (1982).[back]

16. 401 Mass. 105 (1987).[back]

17. Id. at 105.[back]

18. Id. at 106.[back]

19. Id. at 108.[back]

20. Id. at 107.[back]

21. Id.[back]

22. Id.[back]

23. 404 Mass. 28 (1989).[back]

24. Id. at 28-29.[back]

25. Id. at 29.[back]

26. Id.[back]

27. Id.[back]

28. Averett, 404 Mass. at 30.[back]

29. Id. quoting Hennessy v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 852 n.3 (1982).[back]

30. Id. at 30.[back]

31. Stokes v. Superintendent Mass. Correctional Inst., Walpole, 389 Mass. 883, 886 (1983).[back]

32. Id.[back]

33. 438 Mass. 96 (2002).[back]

34. Id. at 96-97.[back]

35. Id.[back]

36. Id. at 97.[back]

37. Id.[back]

38. Pires, 438 Mass. at 97.[back]

39. Id.[back]

40. Id.[back]

41. Id. at 96-97.[back]

42. Pires, 438 Mass. at 98-99.[back]

43. Id. at 99.[back]

44. Id.[back]

45. Id., quoting Crowell v. Commonwealth, 352 Mass. at 289.[back]

46. Pires, 438 Mass. at 100.[back]

47. Id. at 101.[back]

48. See Temple v. Marlborough Div. of the Dist. Court, 395 Mass. 117, 127 (1985).[back]

49. Pires, 438 Mass at 101.[back]

50. See Averett, 404 Mass. at 32.[back]

51. See ABA Standards, supra note 2, at 41. See also United States ex rel. Watson v. Meyers, 250 F. Supp. 292 (E.D. Pa. 1966); Ex Parte Chapman, 43 Cal. 2d 385 (1954).[back]

52. Pires, 438 Mass. at 101.[back]

53. See Jake J. v. Commonwealth, 433 Mass. 70, 73 (2000); Delaney v. Commonwealth, 415 Mass. 490, 496 (1993); Aime v. Commonwealth, 414 Mass. 667, 669 (1993). [back]

54. See Delaney, 415 Mass. at 496-497.[back]

55. It is worth noting, however, that Pires does not foreclose review under Rule 30(a), which presumably remains an option for an aggrieved defendant.[back]

56. This was the case in all the three of the decisions - Jake J., Delaney, and Aime - cited by the SJC in Pires as examples of the utility of G.L. c.211, section 3 petitions for challenging bail issues.[back]

57. Rule 30(a) was designed to "simplify post-conviction procedure, while maintaining the full scope of relief previously available." Reporter's Notes to Rule 30(a) (1979).[back]

58. Crowley, 54 Mass. App. Ct. at 453 quoting Stokes v. Superintendent, Mass. Correctional Inst., Walpole, 389 Mass. at 885.[back]

59. Id. at 454.[back]

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