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.