From the frequent national debate over the issue,1 and from the fact that their license plates read “Taxation Without Representation,”2 it is clear that residents of the District of Columbia, and of the country more generally, are aware that Washington, D.C. is not a state. Although ultimate authority in the District lies with Congress,3 the federal government has delegated certain powers to the District’s home rule government, including much of the administration of the local courts.4 While these Article I courts function similarly to state courts for most purposes, their quasi-federal, quasi-local nature can sometimes cause confusion. Recently, in Eldridge v. Howard,5 the Ninth Circuit ruled that the D.C. Superior Court is not a “State court” under 28 U.S.C. § 2253(c)(1)(A), which details when a certificate of appealability (COA) is required to appeal the denial of a petition for habeas corpus.6 Although the Eldridge court argued that textualist concerns counseled in favor of disregarding the D.C. Circuit’s prior decision on this issue,7 it made two questionable analytical moves that limit the persuasiveness of the opinion.
In 1984, Clinton T. Eldridge pleaded guilty to nine counts, including burglary and rape, in the D.C. Superior Court, for which he was sentenced to a term of incarceration of 40 to 120 years.8 On April 17, 2020, Eldridge, then incarcerated at United States Penitentiary-Tucson, “filed a pro se Petition for Writ of Habeas Corpus in the United States District Court for the District of Columbia.”9 In his petition, Eldridge claimed that the U.S Parole Commission — which assumed responsibility for parole decisions for D.C. Code offenders under the National Capital Revitalization and Self-Government Improvement Act of 199710 — had applied incorrect parole guidelines at four of his five parole hearings, and that the Commission had therefore improperly calculated the amount of time between his parole hearings.11
After the case was transferred to the District of Arizona, the district court dismissed Eldridge’s petition.12 The court construed Eldridge’s filing as a petition for habeas corpus under 28 U.S.C. § 2241, and found that his petition was a “second or successive” petition barred under 28 U.S.C. § 2244(a).13 Because Eldridge had “previously raised the claims in the Amended Petition in other habeas corpus proceedings in other federal courts,” and “ha[d] not sought or obtained authorization from the Ninth Circuit Court of Appeals for [the district court] to consider a second or successive § 2241 Petition” as required by 28 U.S.C. § 2244(b)(3)(A), the district court easily disposed of Eldridge’s petition.14 The district court also declined to grant Eldridge a COA because “reasonable jurists would not find the Court’s procedural ruling debatable.”15
The Ninth Circuit reversed.16 Writing for the panel, Judge Schreier, sitting by designation,17 first addressed the question of whether Eldridge in fact required a COA to bring his appeal.18 Because Eldridge brought his habeas petition under § 2241, he would require a COA if his detention “ar[ose] out of process issued by a State court.”19 Noting that neither the Antiterrorism and Effective Death Penalty Act of 199620 (AEDPA), which outlines the procedures for modern federal habeas law, nor the Dictionary Act21 gave a definition of “State court” or “State,” the court reasoned that the inquiry must begin with “the ordinary meaning of the term ‘State court’ and ‘state.’”22 Obviously, “[t]he ordinary meaning of the word ‘state’ does not — and did not at the time § 2254 [sic] was enacted — include the District of Columbia.”23 The court also noted that elsewhere in Title 28, the term “State” is explicitly defined to include D.C. when appropriate, suggesting that “State” used alone does not include D.C.24
The Eldridge court also found that the Supreme Court’s decision in Palmore v. United States25 strongly supported its interpretation.26 There, the Court noted that, although Congress had explicitly provided that the D.C. Court of Appeals should be treated as the “highest court of a State,”27 the statute was silent about the status of the D.C. Code.28 This silence, the Palmore Court concluded, indicated that Congress had “legislated with care,” and had not intended for the D.C. Code to be treated as a state statute.29 Similarly, the Eldridge court reasoned, “[i]f Congress meant for ‘State court’ to include the District of Columbia Superior Court, it could have easily said so.”30
Moreover, Judge Schreier declined to follow either the Ninth Circuit’s earlier unpublished opinion31 or the D.C. Circuit’s opinion32 that the D.C. Superior Court is a “State court” for purposes of 28 U.S.C. § 2253(c)(1)(A). In the pre-AEDPA decision of Garris v. Lindsay,33 the D.C. Circuit had concluded that “District of Columbia prisoners [were] ‘state’ prisoners” for the purposes of a substantially similar provision that required prisoners to obtain a certificate of “probable cause.”34 Returning to this issue after the enactment of AEDPA in Madley v. U.S. Parole Commission,35 the D.C. Circuit reasoned that, because Congress “made no effort to disapprove Garris” when the statute was amended, the passage of AEDPA effectively ratified Garris’s holding on this point.36
Judge Schreier, however, rejected this line of reasoning. In her view, Garris’s holding was not so well established as to be considered part of the backdrop against which Congress legislated: it “declared its view in a single footnote,” and the meaning of “State court” was “far from the central focus of the case.”37 Still, even if Madley’s presumption were valid, the court reasoned, “that presumption must yield to the ‘cardinal canon’ that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’”38 Therefore, the court held that “State court,” as used in 28 U.S.C. § 2253(c)(1)(A), does not include the D.C. Superior Court.39
Having surpassed the jurisdictional hurdle, the court then addressed whether Eldridge’s petition was properly dismissed as an abuse of the writ.40 Because Eldridge challenged his 2019 parole denial, and his earlier habeas petitions had been filed before 2019, the court found that he could not have raised his claims in an earlier petition.41 No district court had yet addressed Eldridge’s set-off claim on the merits, and therefore, Eldridge had not abused the writ by filing a successive habeas petition.42 The court remanded to the district court to decide Eldridge’s petition on the merits.43
Judge Bumatay dissented.44 Noting that “[e]very circuit court to consider [the] question” of whether the D.C. Superior Court was a “State court” for the purposes of 28 U.S.C. § 2253(c)(1)(A) had answered it in the affirmative,45 Judge Bumatay argued that the panel should have done the same.46 While acknowledging that the plain meaning of the statute supported the majority’s reading, he argued that “sometimes, adhering only to ordinary meaning — without understanding legal context — may cross into literalism and blind us to the best reading of a statute.”47 In Judge Bumatay’s view, the prior-construction canon should have held more weight in the analysis.48
Judge Bumatay also pointed to the “significant judicial consensus” that D.C. courts should be treated as state courts.49 Finally, Judge Bumatay would have looked to other statutes “closely related in time and subject matter” and applied the in pari materia canon, which assumes consistent meaning of identical terms across the corpus juris.50 In the end, although Judge Bumatay found the question “concededly a close one,” he thought that the court “should have declined to open a circuit split.”51 Finding that Eldridge should have been required to obtain a COA before his appeal could be heard, Judge Bumatay would have declined to issue one.52
Two of the analytical moves made by the Eldridge majority stand out as targets for critique. The first is the opinion’s textual analysis of 28 U.S.C. § 2253(c)(1)(A). By focusing on the plain meaning of the word “state,” rather than “State court,” the Eldridge court was able to answer an easy question — is the District of Columbia a state? — rather than the relevant, more difficult question — are territorial courts that do not exercise “the judicial Power of the United States”53 effectively analogous to state courts? The second questionable analytical move is the Eldridge court’s failure to appropriately weigh factors against creating a circuit split. The large number of circuits that had ruled the other way, the longevity of those precedents, and the need for geographical conformity on prisoners’ issues all should have received more than the cursory treatment the court gave them.
First, the Eldridge court began its plain meaning analysis in the wrong place. Courts addressing this issue have been inconsistent with whether they primarily look to the meaning of “State” — where D.C. would not be included — or to the meaning of “State court” — where there is a much more colorable argument for D.C.’s inclusion. The Eldridge court defined its method as “look[ing] to the ordinary meaning of the term ‘State court’ and ‘state,’”54 but then rested its ultimate conclusion solely on the meaning of the term “state.”55 Contrast this with Madley, which framed the question as “whether a court of the District is a section 2253(c) ‘State court’ for purposes of that act,” and did not analyze the plain meaning of the term “state” in isolation.56 The goal of a textualist is to interpret the plain meaning of the statute, rather than just this or that discrete term.57 It seems clear, then, that the meaning of “State court” should be what matters, because the word “State” functions only as a modifier of “court” rather than having any independent meaning. For instance, Black’s Law Dictionary defines “state court” broadly, as “[a] court of the state judicial system, as opposed to a federal court.”58 “Federal court,” in turn, is defined as “[a] court having federal jurisdiction, including the U.S. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts, and tax courts”59 — but not the courts of the District of Columbia or other territories. Thus, if one takes the definition of “State court” as “not a federal court,” there is a strong argument that the D.C. court system is captured by this term.60
This approach is often taken when considering the status of non–Article III courts. Particularly applicable are precedents related to territorial courts, as, like the D.C. Superior Court, these courts ultimately derive their authority from congressional grant.61 Relying on similar reasoning to the D.C. Circuit in Madley, the Third Circuit has explicitly held that “a person in custody pursuant to the sentence of the Territorial Court of the Virgin Islands” seeking to appeal the denial of a habeas petition “must first obtain a [COA] from this Court.”62 Habeas cases arising out of sentences issued by the local courts of Guam and the Northern Mariana Islands have indicated that a COA would be required for an appeal by debating whether or not they should issue such a certificate.63 And, applying the pre-AEDPA “certificate of probable cause” requirement, the First Circuit held that such a certificate would be required to hear an appeal from Puerto Rico.64 The status of tribal courts is less clear65: some district courts suggest that a COA would be required to appeal the denial of a habeas petition from a prisoner sentenced by a tribal court,66 while others suggest that no certificate is required.67 Whether explicitly stated or not, courts finding that a COA was required held that these territorial courts counted as “State courts” for the purposes of § 2253(c), regardless of the fact that none of these territories or nations are actually “states.” Perhaps the Eldridge court implicitly considered the D.C. courts to be meaningfully distinct from territorial or tribal courts.68 Still, both the Eldridge majority and dissent’s failure to engage with these precedents — including possibly binding Ninth Circuit precedent about Guam69 — appears a fairly substantial oversight.
Second, the Eldridge court failed to give adequate consideration to the factors that weigh against opening a circuit split in this situation. While scholarly opinion is divided regarding the relative importance of circuit splits,70 the existence of a circuit split seems particularly concerning in the context of laws affecting prisoners, who can be transferred between facilities in different circuits involuntarily.71 For example, the Fourth Circuit recently held that federal inmates are not barred from filing a “second or successive” motion to vacate their conviction under AEDPA.72 This decision further ossified a circuit split on the issue: the Sixth and Ninth Circuits had previously come to the same conclusion,73 while the Second, Third, Fifth, Seventh, Eighth, and Eleventh Circuits have all found such motions barred by 28 U.S.C. § 2244(b)(1).74 Even though the Solicitor General has agreed that the bar on second or successive petitions should not apply to federal prisoners,75 binding precedent in six circuits says that these claims may not be heard. If the circuits are indeed to be viewed as Brandeisian laboratories for experimentation,76 then prisoners are at risk of becoming unwitting test subjects.
The Eldridge court even acknowledged that, “as a general rule, we decline to create a circuit split unless there is a compelling reason to do so.”77 The bar for a “compelling reason,” however, essentially just amounted to the majority’s view that these previous cases were wrongly decided.78 This would mean, effectively, that nothing should constrain a circuit court that disagrees with a decision of one of its sister circuits, no matter how long-standing and well established that view. Instead, where, as here, the plain meaning alone arguably does not yield a definitive answer, the Eldridge court should have heeded its own words and declined to open a circuit split.
Time will tell how disruptive Eldridge is in practice, if at all. While exact numbers are difficult to come by, past analysis suggests that roughly 150 D.C. Code offenders are currently incarcerated at Federal Bureau of Prisons (BOP) facilities located within the Ninth Circuit.79 Some unknown number of these prisoners are likely to file for habeas relief in a given year. If their petitions are initially denied, they will, at the very least, have the merits of their appeals considered by the Ninth Circuit. Will this decision mean that more prisoners successfully obtain habeas relief? If so, would this cause the BOP to intentionally move D.C. Code offenders to prisons located outside the Ninth Circuit? These questions are difficult to answer. What Eldridge does show, however, is that failure to give adequate consideration to D.C.’s unique political status as a quasi state can lead to undesirable outcomes.