The Great Writ and Federal Courts: Judge Wood's Solution in Search of a Problem

William H. Pryor Jr.*

Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly’s classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,¹ to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions.² But that thesis cannot be squared with the proposal Judge Friendly championed in his article. Nor is it consistent with the limited jurisdiction of the federal courts. And Judge Wood’s essay fails to make the case for how her proposed expansion of the writ would work or whether it would even likely result in the grant of relief to a substantial number of prisoners whose innocence would otherwise go undetected. If anything, Judge Friendly’s case for restricting the writ remains compelling though unfulfilled.

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© 2020 William H. Pryor Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Circuit Judge, United States Court of Appeals for the Eleventh Circuit. I thank three of my law clerks, Elizabeth Kiernan, John Brinkerhoff, and Alex Carver, for their quick research and writing assistance. All errors are mine.

1 Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

2 Diane P. Wood, The Enduring Challenges for Habeas Corpus, 95 Notre Dame L. Rev. 1809 (2020).