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Stay of Execution Brief for Tennessee Prisoner:  Tom Goldstein of Akin, Gump, Strauss, Hauer & Feld has posted his brief requesting a stay of execution for Steve Henley on SCOTUSblog.  He also provides links to Tennessee's response, and Henley's Reply.  Henley, who is on death row for two counts first-degree murder and one count aggravated arson, is asking for a stay of his pending execution under 28 U.S.C. ยง 2101(f), pending its decision in Harbison v. Bell, because it is unclear whether he has the right to have his Federal Public Defender defend him during state clemency proceedings.  Henley is scheduled to be executed at 1a.m. Central Time, February 4, 2009.

Update: The Supreme Court's orders denying the stay and certiorari, without dissent, are here and here.  An AP story on the execution is here.

A Follow Up on Peretti and Rozzi's Supreme Court Study:  Wall Street Journal Blog has a post by Ashby Jones providing more information on the Supreme Court study discussed in yesterday's Blog Scan.  Jones' post provides a few more details on when Justices have decided to retire their robe: "Thurgood Marshall and William Brennan, two famously liberal justices who resigned while George H.W. Bush was in office. Nixon appointees Lewis Powell and Harry Blackmun each stepped down during Bill Clinton's tenure (though neither was known as a firebrand conservative)."  The article discussed in Jones' post, "How do U.S. Supreme Court justices time retirement? The answer may not be what you think" by Marcia Coyle, can be found here.  For those who have already skimmed Peretti and Rozzi's study, the coolest thing about Jones' post is this zoomable photo of the Supreme Court at Inauguration.  


So let me get this straight--because of the incapacity of the federal public defender, the state's interest in carrying out its judgment is simply to be ignored? This seems like bizarro world.

Assuming for the sake of argument that this guy does have the federal statutory right to have the federal public defender file a clemency petition on his behalf and be paid for it with federal funds, how in the world does that entitle Henley to a stay? Strictly speaking, the execution would not be contrary to federal statute.

Goldstein's brief seems to have a bit of legerdemain. Section 2101(f) does allow a stay of a judgment if that judgment is subject to a writ of cert. But, with respect to the Harbison issue, the Tennessee criminal judgment is not at issue here, nor is the state's method of carrying out that judgment.

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