Appellate Law

CA1: Rehearing denied with dissent in AEDPA ?remedy? case

By S. COTUS

Evans v. Thompson, No. 07-1014 (our coverage of original case here).  Judges Torruella and Lipez begin by cataloguing other dissents from denials of petitions rehearings in banc in other circuits regarding the scope of review in habeas cases (you know, the whole ?clearly established? thing)

They explain that:

Although Congress has the power, pursuant to the Constitution, to limit the jurisdiction of the lower federal courts, its authority is not plenary. Even as Congress may confer or restrict the federal courts' jurisdiction -- its "quantitative powers" -- it may not instruct the court how to decide certain cases or how to carry out the qualitative aspects of its work.
...
To limit the traditional analytic tools available to a court strikes at the heart of its independent adjudicatory process.
...
By limiting the sources of law a federal court may rely upon in granting habeas relief to "clearly established Federal law, as determined by the Supreme Court," § 2254(1) [this might be a mistake] impinges upon a federal court's "judicial power" by "strik[ing] at the center of the judge's process of reasoning."
[and. stating the obvious]
Given the limited nature of Supreme Court review, there are constitutional principles that have been elaborated by the lower federal courts but they have not yet been adopted by clearly established Supreme Court precedent.

They then go on to mock the panel for concluding that an abridgement of ?remedy? in habeas cases is really different than an abridgement of what law a judge may apply.  The judges explain that, ?The writ involves a right and remedy that are inextricably linked; a prisoner files a writ when the government has incarcerated him in violation of his constitutional rights...Together, the two issues addressed in the panel opinion go to the heart of our constitutional system of government. For that reason alone, en banc review was justified ?

See coverage of Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007) here and  here.

Full post as published by Appellate Law and Practice on April 16, 2008 (boomark / email).