Legal Commentary

Is the Sixth Now the ?Most Reversed? Circuit?

By Jonathan H. Adler

The Daily Journal reports that the U.S. Court of Appeals for the Sixth Circuit has gone 0?5 before the Supreme Court this term.  As I noted here, all five cases were pro-prisoner habeas cases.  The article discusses the role of the Michigan AG?s office in encouraging the Supreme Court to review the Sixth Circuit?s habeas handiwork.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

?These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA,? he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General?s office, said Thursday that the state is ?going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations.?

One has already been filed and another will be filed in the coming weeks, she added.

The Michigan AG?s office is not alone.  Prosecutors within the Sixth Circuit are well aware that some of the Circuit?s judges are out-of-step with existing Supreme Court precedent on habeas.  Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking review of decisions granting habeas petitions.

(Hat tip: How Appealing)

Full post as published by The Volokh Conspiracy on June 05, 2010 (boomark / email).