The U.S. Court of Appeals has reversed the decision of the Federal District Court that had said California's death penalty was unconstitutional because of excessive delays. The case is explained in my after-argument post. CJLF has a press release.
The District Court decision by Judge Carney was remarkable for touching so many bases and getting them all wrong. The decision was wrong on the Eighth Amendment merits. As a prerequisite to that, though, it was wrong in going through each of the limitations on federal habeas corpus, explaining why the court could reach the merits anyway, and getting every one of those wrong.
The disagreement within the three-judge panel today was on which basis the decision should be reversed. There was a temporary basis and a permanent basis.
Judge Watford, who concurred separately, would have reversed due to Judge Carney's failure to respect the "exhaustion" rule. That is the rule that a state prisoner must take a claim to the state courts first before taking it to the federal courts. See 28 U.S.C. ยง2254(b). That would merely postpone the ultimate decision.
The majority decided the issue under the rule of Teague v. Lane. Under that decision, federal courts cannot make up new rules of constitutional criminal procedure and impose them retroactively on the states. The petitioner tried to get around this by claiming that the new rule in question was one of substance and not procedure. The majority didn't buy it.
As a result of today's decision, the claim in this case is barred from federal habeas corpus unless and until the Supreme Court makes it in a case coming up from the state courts. Not likely in the foreseeable future.
The petitioner will no doubt seek rehearing en banc. I'm inclined to think he will not get it. The panel majority is near the court's center of gravity, not out on either fringe. I think a majority of the judges will agree with them.
If rehearing en banc is denied, the petitioner will petition the U.S. Supreme Court for a writ of certiorari. I would make a hefty wager against that being granted.
The disagreement within the three-judge panel today was on which basis the decision should be reversed. There was a temporary basis and a permanent basis.
Judge Watford, who concurred separately, would have reversed due to Judge Carney's failure to respect the "exhaustion" rule. That is the rule that a state prisoner must take a claim to the state courts first before taking it to the federal courts. See 28 U.S.C. ยง2254(b). That would merely postpone the ultimate decision.
The majority decided the issue under the rule of Teague v. Lane. Under that decision, federal courts cannot make up new rules of constitutional criminal procedure and impose them retroactively on the states. The petitioner tried to get around this by claiming that the new rule in question was one of substance and not procedure. The majority didn't buy it.
As a result of today's decision, the claim in this case is barred from federal habeas corpus unless and until the Supreme Court makes it in a case coming up from the state courts. Not likely in the foreseeable future.
The petitioner will no doubt seek rehearing en banc. I'm inclined to think he will not get it. The panel majority is near the court's center of gravity, not out on either fringe. I think a majority of the judges will agree with them.
If rehearing en banc is denied, the petitioner will petition the U.S. Supreme Court for a writ of certiorari. I would make a hefty wager against that being granted.
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