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January 9, 2007

Duck and cover from SCOTUS

As detailed here by Lyle Denniston, the Supreme Court today issued two opinions in criminal cases that managed to avoid the merits of seemingly important questions.  Here is Lyle's early report:

[T]he Court declined to rule on the question of whether the sentencing decision in Blakely v. Washington in 2004 is to be applied retroactively in federal habeas cases.  The Court found in Burton v. Stewart (05-9222) that the state prisoner in the case had failed to comply with the "gatekeeping" requirements of federal habeas law, so the District Court had no jurisdiction in the case. The Court issued the decision in an unsigned opinion; there were no dissents.

In a ... final ruling of the day, in U.S. v. Resendiz-Ponce (05-998), the Court declined to decide the issue it had agreed to hear -- that is, whether failure to include in a criminal charge an element of the offense can ever be excused as "harmless error."  The Court found that the indictment in this case was not defective, so it need not reach the granted question.  Justice John Paul Stevens wrote the opinion for an 8-1 Court. Justice Scalia dissented.

Updates with substantive comments will follow once I have a chance to consume these efforts.  But first I cannot help but scratch my head about --- and critically assail --- how poorly the cert. pool seems to be operating in the Roberts era.  Since Blakely was decided in 2004, many dozens (perhaps many hundreds) of state defendants have sought cert on the decision's retroactivity.  With plenty of different possible vehicles, the Justices managed to pick a case (Burton) one with a procedural headache that has now further delayed the resolution of an important issue.

January 9, 2007 at 10:29 AM | Permalink


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I agree completely with respect to Burton. There must be some problem on the Court with respect to reaching any kind of majority on the issue, but how that can be I don't know. Could there be some third position besides "Yes/No" on retroactivity that I'm not thinking of?

Oy vey. Maybe one of the appellate mavens out there can enlighten this lowly trial lawyer.

Posted by: NCProsecutor | Jan 9, 2007 12:14:30 PM

Doug, why do you think the problem is how the cert pool is working "in the Roberts era"?

Posted by: Orin Kerr | Jan 9, 2007 1:58:10 PM

Hopefully, the Resendiz-Ponce and Burton experience will influence the cert pool participants to pick better cases that present the issues they want to get at (many court-watchers knew that these cases were flawed vehicles and that the same issues were better presented in numerous other cases), not to pick even fewer cases (reinforcing the institutionalized reluctance to recommend granting cert at all).

Posted by: Booker fan | Jan 10, 2007 10:28:00 AM

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