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Green Light for the Habeas Fast Track

When the Antiterrorism and Effective Death Penalty Act of 1996 was enacted, the "fast track" under Chapter 154 was thought to be among the primary reforms.  In essence, states which provided qualified and adequately funded counsel for their state collateral reviews in capital cases (which is not constitutionally required) were promised an expedited trip through federal habeas corpus.

Many obstacles have prevented the implementation of this chapter as originally conceived.  First, the original chapter had a hostile reception in the courts, as the courts which would be subject to its deadlines misconstrued it to avoid applying it.  In 2006, Congress amended the law to abrogate some specific misinterpretations and to take the decision of whether a state qualified away from the conflicted habeas courts and give it to the U.S. Attorney General with review by the D.C. Circuit.  The AG was further charged with adopting regulations to implement the statute.
Surprisingly, under the Bush Administration Attorney General Mukasey dragged his feet and did not issue regulations until the very end of the Administration.  AG Holder then caved in to a legal challenge, rescinded the regulations, and dragged his feet issuing new ones.  The new ones give the defense much more than it is entitled to, including a patently illegal five-year expiration date on the certification, but two organizations of defense lawyers filed suit against the regulations anyway, steering the case to their favorite judge.

Judge Claudia Wilken in Oakland, California issued an injunction against implementation of the regulations.  After a very leisurely appeal, a Ninth Circuit panel ruled unanimously that she had no jurisdiction to do so.

First, organizations of defense lawyers have no standing to attack the regulations.  They are not injured by them.

Second, an attack on the regulations is premature until they have been applied to a particular application.

That decision was issued 10 months ago.  Since then, the plaintiffs have sought rehearing, rehearing en banc, and a stay of mandate from the Ninth Circuit, all of which were denied.  Then they filed a bizarre pleading entitled, "En Banc Motion to Stay the Mandate."  There is no such procedure.  The court generously construed this as a motion to reconsider the panel's previous denial, rather than sanctioning them for a frivolous pleading, and denied it.

Then the plaintiffs filed a certiorari petition in the U.S. Supreme Court and asked the high court to recall and stay the mandate.  Today the court denied that motion.

So, Judge Wilken has the mandate of the Ninth Circuit "to dismiss this case for lack of jurisdiction."  All requests to stay it have been denied.  This illegal order is no longer a barrier, and the pending applications of Texas and Arizona for certification can proceed.

And, thanks to all the illegitimate delays, they will proceed before Jeff Sessions's Department of Justice and not Eric Holder's or Loretta Lynch's.  The cloud does have a silver lining.

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