Tuesday, January 09, 2007

Today in SCOTUS

The opinion of the Court in MedImmune v. Genentech can now be found here. The syllabus is here. Justice Thomas's dissent is here.

The decision in U.S. v. Resendiz-Ponce can be found here. The syllabus is here. Justice Scalia's dissent is here.

The Court's ruling in Burton v. Stewart can be found here. (hat tip SCOTUSblog). And here, is Prof. Berman's reaction and some interesting comments concerning DIG's. Scot Henson at Grits for Breakfast (blog) might call this another "bench slap".

Here is my humble analysis of Burton, 549 U.S. ___ (2007) (dismissed for lack of jurisdiction, on which issue the state had lost challenges below).

The Procedural Bar is a Bleeping (no laughing matter): The Court sua sponte reviews a question of jurisdiction:

In a nutshell, Burton’s petition raised a question that was not properly "exhausted," and was not "excused" from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. Is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could not be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, the 1998 petition was not a “mixed petition” because unexhausted grounds were not stated and the option to withdraw was not available or sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim under that ruling, and Blakely, posed in the 2002 petition):

That court’s ruling that Burton had a “legitimate excuse,” however, is inconsistent with the precise practice we have explained governs in circumstances such as Burton’s.
The plurality opinion in Rose v. Lundy, 455 U. S. 509, 520.522 (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” Slack v. McDaniel, 529 U. S. 473, 485.486 (2000). Alternatively, prisoners filing mixed petitions may proceed with only the exhausted claims, but doing so risks subjecting later petitions that raise new claims to rigorous procedural obstacles.

UPDATE: Given that a 28 U.S.C. 2244(b)(3) order was not sought (click for stat.) the Court's decision seems justified, if formalistic. This brings me back around to the question, what if you didn't think you were filing a "second or successive"? I know, this is weak, but only if you are a lawyer.

There just seems something wacky about having to ask for a pre-determination in order to file under a new rule in order to invoke that new rule for relief. Isn't it usually clear from the face of a petition that you are invoking a new rule? So what is the point of erecting these "rigorous procedural obstacles"? Surely this is not "justice" but injustice particularly to those who are not lawyers. Thanks Kent, for your response over at SL and P

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