Recently in Habeas Corpus Category

Pennsylvania has filed its certiorari petition seeking Supreme Court review of the Third Circuit decision overturning the death sentence of the notorious Mumia Abu-Jamal. The case is Beard v. Abu-Jamal, No. 08-652. Abu-Jamal's petition seeking review of the Third's decision to uphold his conviction is due next month.

The U. S. Supreme Court this morning dumped the capital habeas case of Bell v. Kelly with a one-line order: "The writ of certiorari is dismissed as improvidently granted." Sometimes "improvidently granted" is a term of art, but this time it is literally true. They took a case that does not present the issue the petitioner claimed it presents. As noted here, the premise of the question presented -- that the state court refused to consider evidence -- is false, and counsel for petitioner admitted as much in oral argument. As discussed here, the case could have been used to resolve some important issues nonetheless, but the Court decided to simply dump it.

Update: Doug Berman at SL&P has this post invoking the late Gilda Radner: "Oh, never mind."

Marcia Coyle reports in NLJ that the Department of Justice plans to finalize, before the end of the current administration, the regulations for approving states for the long-delayed fast-track for capital habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996. In the Patriot Act reauthorization bill, Congress took the authority to decide whether a state qualified away from the federal habeas court and gave it to DoJ with review by the DC Circuit. The conflict of interest for a court to decide whether tight time limits would be imposed on itself had resulted in that vital reform gathering dust. Why DoJ has let the simple step of implementing regulations gather dust this long is unexplained.

Although the regulations will be final in the current administration, the result of the foot-dragging is that the applications will be processed by the Obama Administration. Fortunately, review in the DC Circuit will be de novo. The other side insisted on that when the bill was passed.

The U. S. Supreme Court heard argument today in the case of Jimenez v. Quarterman, No. 07-6984. This is another case on the AEDPA statute of limitations, which generally requires a federal habeas petition to be filed within one year of the completion of the direct appeal, with additional time for the period a state postconviction proceeding is pending.

Generally, courts say they are trying to interpret statutes consistently with the intent of the legislature. How do you do that in a quirky situation that, almost certainly, never occurred to the people who wrote the law? Also, why did the Supreme Court take a case this quirky?

In 1996, when Congress cracked down severely on habeas corpus petitions by prisoners who had already had one such review, it left an exception for "new rules of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2244(b)(2)(A). Cunningham v. California, 549 U.S. 270 (2007), which applied the Apprendi line of cases to California's three-tier system of noncapital felony sentencing, is not a new rule for this purpose, the Ninth Circuit held in Wright v. Dexter yesterday. If it were new, it wouldn't be retroactive, for the same reasons that the Supreme Court held Ring v. Arizona is not in Schriro v. Summerlin, 542 U.S. 348 (2004), but the opinion didn't mention that.

The window of prisoners who get new sentencing proceedings or reduced sentences as a result of Cunningham is small.

Today, I expect, will be spank the Ninth Circuit again day at the U.S. Supreme Court. On the docket are two habeas cases, Waddington v. Sarausad and Hedgpeth v. Pulido (formerly Chrones v. Pulido). Ben Winograd has this post at SCOTUSblog.

In the Pulido case, CJLF's brief is here, and our pre-argument press release is here. Usually, the "bottom side" brief defends the opinion below, but counsel for Pulido has pretty much thrown the Ninth Circuit's indefensible "structural error" theory under the bus. His argument is more that the district court's straight application of the Brecht v. Abrahamson rule to this instructional error reached the correct result.

Update: The Pulido transcript is here. Predicting the outcome here is a no-brainer. Look for a short, relatively quick, probably unanimous opinion saying, "Ninth Circuit, Brecht is the standard. Now do it over." Or something like that.

Deep in today's orders list is a denial of certiorari in Abu-Jamal v. Pennsylvania, No. 08-5456. An AP story reports, "The justices did not comment on their action Monday, which leaves in place a federal appeals court ruling that upholds Abu-Jamal's murder conviction, but orders a new sentencing hearing."

Huh? Federal habeas cases don't usually name the state itself as respondent -- the Eleventh Amendment and all that.

Sure enough, the docket for 08-5456 lists the lower court as the Pennsylvania Supreme Court. The USCA3 docket for its case, No. 02-9001, says rehearing en banc was denied July 22. The certiorari petition from the federal ruling isn't even due for two more weeks.

The Pennsylvania Supreme Court decision affirms without dissent a trial court decision holding that Abu-Jamal's third state post-conviction relief petition is untimely and does not qualify for an exception.

Update: AP has corrected the story.

Update 2: On Oct. 3, Abu-Jamal requested a two-month extension to file his certiorari petition in the Third Circuit case.

Update 3: On Oct. 6, the state requested a one-month extension for its request to review the grant of habeas relief on penalty.