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July 11, 2013

Full Sixth Circuit grants en banc review in Blewett

A mere days after the Sixth Circuit panel in the Blewett case (which concerns possible retroactive relief for some crack defendants) decided not to alter its original opinion (details here), the full Sixth Circuit today entered this order:

ORDER filed granting petition for en banc rehearing filed by [AUSA] Ms. Candace G. Hill, to reinstate appeals. The previous decision and judgment of this court is vacated, the mandate is stayed. The Clerk has directed the parties to file supplemental briefs. Final briefing will be concluded on August 29, 2013. These cases will be argued before the en banc court on October 9, 2013, 1:30 P.M., EST.

This is not a big surprise, and I think it likely means that the full Sixth Circuit is not too keen on the equal protection arguments used by the Blewett panel.  I fear that the full Sixth Circuti might not also be too keen on the Eighth Amendment arguments I put forward in this case late last month (details here), but that is not likely to deter me from filing additional papers concerning my Eighth Amendment ideas come August. I also may ask the Sixth Circuit for argument time (through I am not especially confident that anything which transpires at oral argument in this kind of case is going to move the opinions of many of the judges).

 Related posts on Blewett:

July 11, 2013 at 06:00 PM | Permalink


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The panel's view seems poised to get zero votes on the en banc court, as Judge Martin is retiring in August and Judge Merritt is already senior.

Posted by: Jay | Jul 11, 2013 10:14:30 PM

Jay: Is Judge Martin fully retiring, or assuming senior status? Also, can senior judges who were on the original panel not be on an en banc panel in the Sixth Circuit? I honestly don't know the answer to these questions. Thanks.

Posted by: Joshua | Jul 12, 2013 6:11:30 PM

(Recent appellate law clerk not yet otherwise employed.)

Does it seem likely that the en banc court will find, instead, that the Fair Sentencing Act is entitled to pipeline retroactivity, that is, that it is applicable to all cases on direct appeal, but not to those which had exhausted direct appeal before the law was passed? While I believe even the current guidelines sentencing recommendations are an injustice, and the incarceration of thousands based on the pre-FSA sentences is an ongoing injustice, this simply does not seem like a statute to which full retroactivity can apply.

Posted by: Lohengrin | Jul 13, 2013 5:22:21 AM

It appears the members of the original panel will be on the en banc panel.

This is from 6 Cir. I.O.P. 35 En Banc Determination

(c) Composition of En Banc Court. The en banc court is composed of all judges in regular
active service at the time of a hearing or rehearing, any senior judge of the court who sat on
the original panel, and, if no oral argument en banc is held, any judge in regular active
service at the time that the en banc court agreed to decide the case without oral argument

Posted by: Tim Holloway | Jul 13, 2013 2:13:29 PM

Tim Holloway is correct, but it won't make any difference. This opinion is toast. The original sentences are long, and longer than they would be now, but hardly cruel and unusual within any court's understanding of the Eighth Amendment. It's not like the Eighth Amendment issue hasn't been litigated before.

I'm still taking bets. Anyone?

Posted by: Bill Otis | Jul 15, 2013 12:08:48 PM

What will this government shut down do to the October 8 court date?

Posted by: Shelly | Oct 2, 2013 12:17:53 AM

With the government shut down will this still occur tomorrow? And if this happens how soon will inmates start being released if they have already filed the correct paperwork? Thank you, I am a family member of a current inmate. Much appreciated

Posted by: kim | Oct 9, 2013 12:45:42 AM

Does anyone know what the.outcome was today

Posted by: shelly | Oct 9, 2013 6:41:59 PM

What was the out come of the hearing? Does anyone know?

Posted by: wife | Oct 10, 2013 10:44:07 AM

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