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Brown Argument Off Calendar

In Friday's orders list, the Supreme Court granted the motion of the US SG to participate in oral argument in McDaniel v. Brown, No. 08-651. Nothing remarkable there; the SG almost never gets turned down. Now, on the very next business day, the Court has taken Brown off the calendar.

As we noted here, counsel for Brown apparently decided while writing their merits brief that the sufficiency of the evidence argument that they had been making the whole time and that was the basis of the Ninth Circuit's opinion is simply indefensible. Further discussion of what a stinker the Ninth's opinion in this case is can be found in the previous post.

So what will the high court do next? Will they appoint an amicus to defend the judgment below on its terms? Maybe. Will they just vacate the decision to allow the Ninth to consider the alternative ground of ineffective assistance decided by the District Court but not by the Court of Appeals? That's my guess. Stay tuned.


Hopefully, there will be something in the US Reports that illuminates just how bad the Ninth Circuit's decision was.

My guess is that your guess is correct (I filed an amicus in the case, and the 9th circuit decision IS certainly indefensible).

Tim, I expect your audacious effort to get Jackson v. Virginia overruled will have to await another case.

Shouldn't the habeas case be dismissed altogether? Taking a position on appeal and then refusing to defend it should call for some sanction.

Habeas relief should be denied under 28 USC 2254(d) because the state court reasonably (indeed, correctly) rejected the argument that was made to it. Morphing the claim into a different one on habeas is not kosher under precedent going back to the 19th century. I don't think habeas counsel's actions are sanctionable, though.

We may get some clarification on the morphed claim problem in this case or in Wood. I was hoping to last term in Bell v. Kelly, but unfortunately they just drop-kicked it.

I am sure you are right (about my audacious attempt); any chance it was just removed for the convenience of a party and is to be rescheduled? I take it they don't issue an order when they remove it from the calendar (if they're going to send it back, I guess an order would come later--but why not at the same time as the removal?).

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