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August 29, 2005

More on mandate recalls in the Ninth Circuit

Over at the Ninth Circuit Blog, Steve Kalar has this post discussing the recent important decision in US v. Crawford in which  a panel of the Ninth Circuit recalled the mandate and order resentencing in a case that apparently became final before Booker.  As I explained in this post, the Crawford decision seems to adopt what I would describe as a policy of equitable Booker retroactivity.  Here's a bit of Steve's take:

Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar?  The order doesn't say so, but that's a fair between-the-line reading....

This order may signal a habeas loophole for the right case.  Has a client blown ADEPA time limits? Doesn't seem to have bothered the Crawford panel — and the client who will be resentenced doesn't care if his relief came from habeas review or a recall of the mandate.

Steve also notes that the "recall the mandate" approach "has a colorful history" in the Ninth Circuit: "The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt and Judge Kozinski."

August 29, 2005 at 04:48 PM | Permalink


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