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Monday at SCOTUS

The US Supreme Court issued no opinions and took up no new cases today.  The orders list is here.  The Court turned down the Larry Swearingen capital case from Texas.  Howard Roden has this article in the Courier, the local paper for Montgomery County, Texas, on the ongoing forensic science disputes in that case.  It is not surprising that the Court would pass on the thorny question of a freestanding claim of actual innocence in federal habeas corpus, a question it has ducked multiple times, when the facts are being actively litigated in state court.  Indeed, I would be astonished if they took it.  Even so, it was on SCOTUSblog's Petitions to Watch list.

The Court is hearing argument in Wood v. Milyard, a habeas statute of limitations case.  A prior post on this case is here.  A curious aspect of this case is the Court's rewrite of the Questions Presented:

1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. ยง2244(d) statute of limitations defense? 2) Does the state's declaration before the district court that it "will not challenge, but [is] not conceding, the timeliness of Wood's habeas petition," amount to a deliberate waiver of any statute of limitations defense the state may have had?
[Revised after argument] "Deliberate waiver" is a high bar.  Congress provided that high standard for the exhaustion requirement, but usually the state's mere failure to raise a procedural defense is sufficient to forfeit it.  The argument discusses "deliberate waiver" as the standard needed before the court cannot raise the defense sua sponte, as opposed to when a party no longer has a right to claim the defense.  The transcript is here.

SCOTUS Practice note:  The petitioner's original QP above the Court's rewrite is an exemplar of how not to write the QP.

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