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Do-over in very old habeas case

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The Supreme Court today sent back to the lower federal courts the case of Jefferson v. Upton, a capital habeas case so old that it is governed by the pre-1996 rules for how a federal court should treat state-court findings.

Accordingly, we believe it necessary for the lower courts to determine on remand whether the state court's factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue. See Townsend, supra, at 313-319; Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992). In so holding, we express no opinion as to whether Jefferson's Sixth Amendment rights were violated assuming the state court's factual findings to be true.

In dissent, Justice Scalia notes the unusual nature of the disposition:

Generally speaking, we have no power to set aside the duly entered judgment of a lower federal court unless we find it to have been in error. More specifically, except where there has been an intervening legal development (such as a subsequently announced opinion of ours) that might alter the judgment below, we cannot grant a petition for certiorari, vacate the judgment below, and remand the case (GVR) simply to obtain a re-do. Webster v. Cooper, 558 U. S. ___, ___ (2009) (SCALIA, J., dissenting) (slip op., at 3). Yet today the Court vacates the judgment of the Eleventh Circuit on the basis of an error that court did not commit, with respect to a statutory issue that had never previously been raised, and remands for more extensive consideration of a new argument that might affect the judgment. Under the taxonomy of our increasingly unprincipled GVR practice, this creature is of the same genus as the "Summary Remand for a More Extensive Opinion than Petitioner Requested" (SRMEOPR). Id., at ___ (slip op., at 4). But it is a distinctly odious species,deserving of its own name: Summary Remand to Ponder a Point Raised Neither Here nor Below (SRPPRNHB).

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Bottom line: Death is different. So where the Court is uneasy, the Court is going to bend the rules in favor of the capital litigant and force the lower court to do the dirty work.

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