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Blog Scan

Raising Old Claims in New Habeas Petition:  At SCOTUSblog, Harvard Law School student Jay Rapaport previews Magwood v. Patterson (09-158), a case that will be argued before the U.S. Supreme Court next Wednesday.  The case will address whether a prisoner who had been re-sentenced after having obtained federal habeas relief from an earlier sentence, may challenge his re-sentencing on grounds that were available but not raised in the petition that vacated his original sentence.  Billy Joe Magwood has twice been sentenced to death for his premeditated murder of Sheriff Grantham in 1979.  Over the years, Magwood's lawyers challenged his sentence on several grounds, but it was not until 1997 that they raised the question of whether his was actually a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Magwood resentenced in 1985. He was again sentenced to death the next year.  Now Magwood would like to challenge his 1986 re-sentencing on a ground he could have raised the first time. The state opposes Magwood's challenge, arguing that AEDPA is a "claim-focused" statute, and allowing Magwood to proceed would open the door to wasteful, repetitive litigation that AEDPA sought to prevent.

Attorney General Weighs in on Osama and KSM: 
At Wall Street Journal's Law Blog, Ashby Jones writes that yesterday, during exchanges with Republicans on the a House budget subcommittee, Attorney General Holder stated that if ever captured, "we will be reading Miranda rights to the corpse of Osama bin Laden."  A Washington Post story by Devlin Barrett reports that Holder's remarks drew some criticism from members of the committee.  Representative John Culberson (R-TX), was upset that Holder compared the rights of terrorists to those of convicted murderer Charles Manson.  He said it showed the Obama administration doesn't understand the American public's desire to treat terrorists as wartime enemies, not criminal defendants.  David Ingram at Blog of Legal Times also reports on Holder's remarks. 

Discretion in Sentencing:  Yesterday, at Sentencing Law and Policy, Doug Berman had two posts highlighting the debate over mandatory and discretionary sentencing practices.  In his first post, Berman directs readers to Sixth Circuit Judge McKeague's partial dissent in U. S. v. Wallace, a case addressing the procedural reasonableness of the sentence imposed for conspiracy to possess with intent to distribute OxyContin. The Sixth Circuit found Gall error, and vacated Wallace's sentence.  Judge McKeague agreed that the conviction must be affirmed, but remained "unpersuaded that the sentencing court's procedural error, in failing to adequately explain its sentencing decision, either affected defendant's substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings."  Berman's second post links to Craig D. Rust's SSRN article, When 'Reasonableness' is Not so Reasonable:  The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough.

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