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AEDPA Regs: Another Bizarre Development

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The very strange saga of the USDoJ regulations implementing Chapter 154, the federal "fast track" for capital habeas corpus, has taken another bizarre twist.

Last December, as we noted here, the DoJ finally issued the final regs after dragging its feet for three years. The DoJ gave notice of its preliminary version of the regulations and invited comment on June 6, 2007, allowing a full three months for comment. As if that were not enough, DoJ extended the comment period for an additional 45 days. Then they sat on it for over a year.

When the final rule came out in December, it was very little changed from the preliminary rule. An italics-and-strikeout version is here, showing the minimal changes. The California Habeas Corpus Resource Center asked for a preliminary injunction, claiming that despite the minimal changes the notice did not give sufficient indication of the nature of the rule. The main basis for this claim is that in the explanation of the rejection of many of the comments, DoJ noted that Congress's amendments to Chapter 154 abrogated the Ninth Circuit's interpretation in Spears v. Stewart, 283 F.3d 992 (2002). In reality, this could not possibly have been a surprise to HCRC. The primary sponsor of the legislation said flat-out in the Congressional Record that was the intent, and the preliminary rule as drafted reflected that understanding.

The notorious Judge Claudia Wilken of the U.S. District Court for the Northern District of California bought that argument and issued a preliminary injunction. Naturally, it was expected, and informal communications from DoJ confirmed, that this outrageous decision would be fought.

Instead, today from DoJ comes this notice, reopening the already long-delayed regulations for yet another 60-day comment period -- twice as long as even Judge Wilken's bizarre ruling requires.

You've got some serious explaining to do, Mr. Holder.

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Holder's a hack with sympathy for criminals. They won't do anything that will obviously help criminals because they don't want the political heat, but they will help them in subtle ways if they can.

Obama seriously talked about a "just-us" system, and Holder threw DOJ under the bus because he didn't like the optics. This is not at all surprising.

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