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Evading Congress's Landmark Habeas Reform

Yesterday, the Ninth Circuit granted rehearing en banc in a case it decided last year and the Supreme Court turned down last June.  Judge Tallman, joined by Judges O'Scannlain, Callahan, Bea, and Ikuta, takes the unusual step of dissenting from a grant of rehearing en banc. 

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now--after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed--we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.
Aside from the specific procedural question in this case is a deeper question.  Congress passed a landmark law in 1996 for the specific purpose of a making capital punishment effective.  One of the reforms was to crack down on successive petitions -- the filing of a new federal habeas petition after the first one has been denied.  This was, initially, one of most effective reforms in the package.  It was upheld by the Supreme Court with remarkable swiftness, two months after enactment of the law.  See Felker v. Turpin, 518 U.S. 651 (1996).  (CJLF filed an amicus brief.  See footnote on p. 654.)

However, the effectiveness of the reform has been diluted in recent years by the use of various procedural devices to reopen the old petition instead of filing a new one.  The Supreme Court has not been tough enough in restricting this practice.  Habeas corpus is not just another civil case.  Congress spoke clearly when it said that once a case is finished it should be reopened only for certain very compelling circumstances (like, for instance, we got the wrong guy).  An arguably insufficient consideration of "mitigating" evidence that has nothing whatever to do with the crime, which is what Henry is about, is not a good enough reason to further delay already badly delayed justice.  Congress has decided that, and the courts need to respect that.
The end of Judge Tallman's opinion is noteworthy as well:

Our court has succumbed to the temptation to hold this case, already in its third decade, even longer. Some of us may be driven by opposition to the death penalty. Or some may feel that Henry should get the benefit, if any, of McKinney because a third capital defendant, Poyson, was granted a stay pending McKinney's resolution. Poyson v. Ryan, 743 F.3d 1186, 1187 (9th Cir. 2013).

Whatever they are, motivations are beside the point. We should follow the law. Instead, we lay flame to orderly case-processing rules, comity due to state court judgments, and principles of finality. "[Fire's] real beauty is that it destroys responsibility and consequences. A problem gets too burdensome, then into the fire with it." Ray Bradbury, Fahrenheit 451 109 (Simon & Schuster 2012). We should be more cautious.


Is the primary procedural mechanism utilized to circumvent the prohibition on successive petitions usually based on FRCP 60(b)?

The 60(b) motions are the primary evasion, but as this case illustrates not the only one.

That victims' families have to put up with this utter lawlessness is appalling. None of the judges voting for this stay should ever get to hear a case again.

Another issue---when the courts start blowing off the law, they license others to follow suit.

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