Did the State Expressly Waive Exhaustion Defense to a Brady Claim?: Jonathan Adler at Volokh Conspiracy has this post on today's Sixth Circuit decision in D’Ambrosio v. Bagley. In the opinion, a divided three judge panel split over when in a habeas proceeding the state may "expressly waive" its defense that the petitioner had failed to exhaust his Brady claims in state court. In D'Ambrosio, the divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. D'Ambrosio had amended his habeas corpus petition to include a Brady claim after he learned the state was withholding mitigating evidence. When D'Ambrosio made the motion, the state's attorney "stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend." When the district court granted both motions it noted: "its understanding was that the warden would not argue that the Brady claim was unexhausted . . . ." The Sixth Circuit's decision upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition.

Anticipating Boumediene: Marty Lederman at Balkanization posted on how the U.S. Supreme Court might decide Boumediene v. Bush, and how Congress might respond to the ruling. In his post, Lederman comments he believes Kennedy is authoring the opinion. He also notes that after the D.C. Circuit Court's ruling in Bismullah, he is "somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process." However, Lederman is skeptical that the Court will decide the extent the Constitution protects detainees who are detained elsewhere around the world, or "whether Congress has given the President the authority to detain the civilian Bosnian petitioners in Boumediene".