This keeps getting "curiouser and curiouser," as Alice said in Wonderland. More than that, it's downright weird.
A couple of years ago, the Ninth Circuit was considering the habeas appeal of convicted murderer Carl Irons. Like many California lifers, he was challenging the denial of his parole. He drew Judge Karlton in the Eastern District but still lost. It seemed like a routine case, headed for routine affirmance. Then, two weeks before oral argument, the panel issued an order sua sponte that the parties should be prepared to argue whether the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254(d), was unconstitutional. Judges Reinhardt and Noonan joined in the order, and Judge Fernandez dissented from it. After argument, the court called for supplemental briefing. The U.S. Attorney General duly came in to defend a challenged Act of Congress. See 28 U.S.C. § 2403. Several amici came in on the defense side, and CJLF came in supporting the people.
What was strange about all this is the issue was generally considered resolved after Williams v. Taylor, 529 U.S. 362 (2000), decided five years earlier. Before that case, the issue of whether Congress constitutionally could require a federal habeas court to defer to a decision of federal law by a state court had been the topic of some controversy. See Liebman & Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 Colum. L. Rev. 696 (1998) (making the "no" argument in 192 pages); Yours Truly, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888 (1998) (refuting it in 73). Prior to Williams, every court to consider the argument had concluded that Congress was within its authority, including the Ninth Circuit. See Duhaime v. Ducharme, 200 F.3d 597 (2000).
In the Williams case, the petitioner invoked the argument of constitutional doubt (along the lines of the Liebman and Ryan article) to urge the high court to construe (actually, to rewrite) § 2254(d) so as to preserve de novo review on habeas, contrary to the meaning ascribed to the provision by every Member of Congress who spoke on it during the debate, for or against. The Court ignored this argument and interpreted the language to mean what it says and what it was understood to mean during the debate on it, implicitly rejecting the constitutional argument. See Clemons v. Mississippi, 494 U. S. 738, 747-748, n. 3 (1990). From Williams on, federal courts throughout the country have applied the standard as construed in that decision, with no questions raised about its constitutionality. In short, the issue seemed settled. If the implicit holding of Williams was not enough to prevent the panel from declaring the statute unconstitutional, the express holding of a prior Ninth Circuit panel surely was. The orders to argue and brief the issue were both a shock and a puzzle.
A few months later, after having received briefing on an issue which was of great national importance but which they probably had no authority to decide, the court ordered on Oct. 27, 2005, that the case was "referred to the Settlement Unit to explore a possible resolution through mediation." Mediation is all well and good for private disputes between private parties, but what happened to the great issue? And there the case sat for nearly a year and a half.
Then, on Groundhog Day 2007, the case moved from curious to weird. The following order issued: "In November, 2005, the court determined that this appeal would not be selected for inclusion in the Mediation Program. The panel was notified on November 17, 2005." The order is signed for the court by the chief circuit mediator. I waited a few days before posting this to see if some clarification or further order would issue. Nothing.
So the case has not been in mediation all this time. They have just been sitting on it. What on earth is going on in those chambers?
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