‘I Can’t Breathe’: The Federal Chokehold on the Wrongfully Convicted

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Photo by Cissey Ye via Flickr

Former federal prosecutor Paul Butler describes a “chokehold” as a maneuver in which a person’s neck is tightly gripped in a way that restrains breathing. In his book, ironically named, “The Chokehold: Policing Black Men,” Butler describes how police, politicians, judges, and other officials have used legal versions of that maneuver to create the mass incarceration system we are living with today.

In fact, the most effective tool utilized by the criminal justice system to “restrain the breathing” of African Americans and Latinx over the past two decades, is the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

Signed into law in the wake of the Oklahoma City bombing, the AEDPA was in part a byproduct of former Speaker of the House Newt Gingrich’s Contract with America. Endorsed by President Bill Clinton, it was designed to limit the appeals of death penalty sentences.

In practice, it has virtually shut down all federal habeus corpus litigation.

Known as the “great writ” for its sacred place in constitutional law, the writ of habeus corpus is a legal vehicle that gives prisoners the right to challenge their incarceration. In addition to allowing federal prisoners an opportunity to challenge their detention, habeus corpus authorizes federal courts to review state convictions for constitutional violations.

It is a fundamental right—one that should never be suspended according to Art.1,sec 9 of the U.S Constitution. Yet Supreme Court rulings on AEDPA-related cases have severely narrowed the authority of federal courts, and effectively denied litigants a meaningful opportunity to demonstrate any procedural failing in a criminal proceeding.

Restrictions include:

      • A one-year time limit for state and federal prisoners to file a habeus petition in a federal court.
      • Petitioners must exhaust all state remedies before a federal court review.
      • Federal courts must defer to state courts’ judgement, giving the judgement precedential weight unless it’s either “contrary to” or “an unreasonable application of “clearly established federal law.
      • Providing the federal court with the power to not hear a claimant’s second or subsequent habeus petition,

It’s not hard to draw the conclusion that the AEDPA is the judicial equivalent of a chokehold.

It has effectively barred almost all incarcerated individuals from trying to undo wrongful convictions.

Take for example, the case of Roel Cesar Moreno, convicted of murdering a Texas cabdriver named Rene Gonzalez.

Gonzalez lived in the border town of Roma, Tx. On the morning of January 12, 2000, he never returned home from work. Acting on a tip that Moreno was the last person seen with Gonzalez, Roma police arrested Moreno six days later.

Gonzalez’ taxi was never found. His body was discovered a week later, five miles from Roma.

The state brought Moreno to trial and presented against him the testimony of his neighbor, Irasema Garcia.

According to appellate records, Garcia testified that on the day of Gonzalez’ disappearance, Moreno showed up to her house acting nervous. She noticed he had blood on his clothing. After requesting money from Garcia, court documents reveal that Garcia testified that Moreno confessed to her that he had shot someone.

Moreno was found guilty of Gonzalez’ murder and was sentence to life imprisonment. His conviction came five years after the passage of the AEDPA.

Five years later, in 2006, Moreno’s family, still believing in his innocence, collected enough money to hire famed appellate attorney Randy Schaffer to investigate his case. According to the habeus records, Shaffer hired a private investigator to interview Garcia.

The investigator obtained an affidavit from Garcia stating that her entire trial testimony was erroneous.

According to Garcia’s habeus affidavit, she never saw blood on Moreno, and denied hearing him say he had a gun. Pressured by members of the Roma police dept, Garcia said Roma police would not let her leave the police station without signing a statement.

Schaffer presented this finding in a habeus corpus writ, but the Texas Appeals Court denied the appeal in 2008. Because Moreno family had waited five years after his conviction, Schaffer was barred from presenting Moreno’s claims of innocence in federal court.

The one-year time allotment that was implemented with the passage of the AEDPA had successfully choked Moreno’s claims from any federal review.

 In essence, despite the fact that Moreno had no connections with terrorism and was not facing the death penalty, he was told that certain provisions of the AEDPA prohibited him from exercising his constitutional right to use the “great writ” to obtain relief from his wrongful conviction.

Moreno is one of many federal and state prisoners who are similarly denied their constitutional right to challenge the legality of their incarceration.

The U.S. Supreme Court’s interpretation of the law has allowed habeus corpus rights to be obscured by legal jargon about “time limits” and “procedural bars.”

The silence of the courts is deafening.

If the Moreno case doesn’t move you, spare a thought for Troy Davis.

Davis was sentenced to death after being convicted of the murder of an off-duty Savannah, Ga., police officer. Of the nine “eyewitnesses” who testified against him at trial, seven eventually recanted.

Troy Davis

Davis took their recantations and evidence from a new witness implicating someone else to a federal court in a habeus petition, but the procedural constraints—the chokehold—of the AEDPA barred Davis’ attorneys from presenting the new evidence.

Citing the rule that limits state and federal prisoners to one opportunity to challenge their conviction—known as the “successive writ” standard authorized by the AEDPA—the federal court refused to consider Davis’ new claims of innocence.

Never actually addressing the key arguments for innocence outlined in Davis’ habeas claims, the federal courts highlighted the fact that Davis had already “one bite at the pie” and didn’t deserve another.

When Davis’ case went before the U.S Supreme Court, Justices Antonin Scalia and Clarence Thomas wrote: “This Court has never held the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but later is able to convince a habeus court that he is actually innocent.”

In other words, the court has evolved from administering justice and guaranteeing due process to criminal litigants, to strict enforcement of the destructive mandates outlined in the AEDPA—even if the face of overwhelming evidence that a condemned man might be innocent.

Shortly thereafter, Davis was executed by the state of Georgia on Sept. 21, 2011.

jeremy busby

Jeremy Busby

Proclaiming his innocence to the end, he had said, “I will not stop fighting until I take my last breath.”

The AEDPA stopped his breath as effectively as the knee pressed against George Floyd’s neck.

Jeremy Busby has served more than 20 years of a 75-year sentence for murder. Currently housed in the Mark Stiles Unit, a maximum-security facility in Beaumont, Tx., where he is seeking exoneration for what he maintains is a wrongful conviction at age 21. Meanwhile, he has earned a graduate degree from the University of Houston-Clear Lake and is a former staff writer for The ECHO, the Texas prison newspaper. Readers’ comments are welcome. Follow Jeremy on www.joinjeremy.com, on Instagram @joinjeremy2020, or on Facebook.

2 thoughts on “‘I Can’t Breathe’: The Federal Chokehold on the Wrongfully Convicted

  1. Believe me I know how hard it is. My husband is serving life for something he did not do, on the word of a 12-year-old. He [spent] three years in the Harris county jail Waiting for a trial. When he got one the evidence that he was not guilty was withheld from the jury, we filed an appeal the day the trial was over it to the appellate judges, who took more than a year to turn down the Appeal. I’m not sure where we go from here but I have to find out, I don’t like for any innocent person to be in prison no matter who they are.

  2. Mrs. Tanner-Gonzales, after your husbands direct appeal is denied, there are a few options: a Petition for Discretionary Review or a Writ of Habeas Corpus (Article 11.07, Texas Code of Criminal Procedures). Once the Texas Court of Criminal Appeals (the highest appeals court for criminal cases in Texas) makes a ruling you can:
    1. File a writ of habeas corpus Art. 11.07 which challenges the constitutionality of your husband conviction; or
    2. From the Court of Criminal Appeals he can go to the Supreme Court of the United States within 90 days.
    If he still can, I would do
    The Petition for Discretionary Review, then
    Habeas Corpus, then
    Federal Writ of Habeas Corpus 28 U.S.C. Section 2241 and 2254, which is filed in the Federal District Court in Houston.
    From there the 5th Circuit Court of Appeals in Louisiana.
    From there, the Supeeme Court of the United States.

    Each step has time limits so depending on the status of your husbands case, determines his option. I hope this helps.

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