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Michigan on a Roll

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The State of Michigan has been remarkably successful this term in getting Sixth Circuit decisions in habeas cases reviewed by the Supreme Court. Berghuis v. Smith and Berghuis v. Thompkins are presently being briefed on the merits. Today the Court granted certiorari in Renico v. Lett, No. 09-338, a double jeopardy case. Erroneous grants of habeas in double jeopardy cases are particularly damaging. In most habeas cases, an erroneous grant means a new trial, but in a double jeopardy case it means the guy walks. The panel blunders and a murderer goes free. The cert. petition is on SCOTUSblog. The USCA6 opinion is here.

Is the high grant rate because MichSG Eric Restuccia is an exceptionally good petition writer, or is it because the Sixth has been blundering exceptionally badly? Or perhaps a bit of each?

Also granted is Barber v. Thomas, No. 09-5201, from the Ninth Circuit. This appears to be a federal prisoner case. The opinion (or memorandum) doesn't seem to be on the Ninth Circuit's site. Will get more details later.

In Porter v. McCollum, previously noted here as much-relisted case, the Supreme Court summarily reversed the Eleventh Circuit. This capital case involves ineffective assistance in the penalty phase.

Among the denials of certiorari is the notorious Kevin Cooper case, Cooper v. Ayers, No. 09-363. This is the case that went for a rare second round of federal habeas review for additional forensic testing. The district court found, "Postconviction DNA testing confirms that Petitioner committed the murders of the Ryen/Hughes victims."

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Blog Scan from Crime and Consequences Blog on November 30, 2009 3:59 PM

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One of the things that is interesting is that Renico was not pubbed at the Sixth Circuit. It's therefore highly unlikely that SCOTUS is granting cert. simply to affirm.

It's no suprise that Clinton appointee Cole authored the opinion--odd that a Bush appointee, Judge Gibbons, joined it.

Barber appears to be the case where the feds calculate good time credits.


It's both; Eric Restuccia is an outstanding SG, and the 6th circuit is the 9th circuit of the midwest (or is the 9th circuit the 6th circuit of the west?). There is yet a 4th case, Metrish v Newman,08-1401,that was on the conference for the 9th of October and has been sitting without even a re-list ever since. Could there be a PC opinion coming, along with these 3 grants?!?!

In Metrish, Judge Sutton has a very effective dissent.

re metrish: yes, he (Sutton) does. Could form the basis for a PC reversal (one hopes).

That would be nice to see, but a Bobby v. Bies type slapdown is nice too.

They may be holding up this case because it's similar to McDaniel v. Brown (i.e., sufficiency review and AEDPA), a case set for oral argument and then removed.

By the way, what's taking the Court so long to deal with McDaniel v. Brown?

That's a good question. Since even the respondent in McDaniel v Brown wouldn't defend the 9th circuit opinion on its own terms, it seems possible some sort of vacate and remand (in the form maybe of a pc opinion), rather than oral argument, may occur. But it still seems to be taking awhile.

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