Federal Judiciary

The Sixth?s Resolution for 2008: More En Banc Habeas Decisions?

By Robert Loblaw

Bell v. Bell, 04-5523 (6^th Cir., Jan. 4, 2008)

The Sixth Circuit is known for its deep divisions in habeas cases, and the divide is on stark display today in this en banc decision affirming the denial of habeas relief. Petitioner Stephen Bell (presumably no relation to the respondent, Warden Ricky Bell) claims that the prosecutor withheld key impeachment evidence about a cooperating witness. The initial panel agreed and granted him a new trial, but the en banc Court vacated this decision and voted to deny relief.

Today?s en banc decision is less notable for its evaluation of the merits, as the vote to deny relief is close but wholly predictable. Of greater interest are the dissents by Judge Moore and Judge Daughtry. Although the two divide on their resolution of the merits, both agree that this is not a case that warrants en banc review. As Judge Moore points out, Bell?s appeal does not involve any unresolved legal question but instead centers on a factual disagreement over whether the witness had an undisclosed deal with the prosecution. She writes,

After reading the panel?s decision and the parties? supplemental briefs, I was uncertain why a majority of this court had agreed to rehear this case en banc. Nowhere did either of the parties identify any inconsistency of the panel?s decision with prior decisions of this court (or with Supreme Court decisions, for that matter). Nor did the parties highlight any question of exceptional importance. To the contrary, the briefs reflected a rather pedestrian disagreement regarding whether Petitioner Bell had offered sufficient evidence to establish a tacit agreement.

I had hoped that oral argument would clarify my confusion. Certainly, I thought, either the advocates or my colleagues on the bench would highlight the exceptional importance of this case. I had believed that after oral argument, I would see clearly that this dispute was not just a question of whether record evidence supported the panel majority?s opinion, but instead a complicated legal question that required fourteen seasoned legal minds to resolve. Suffice it to say, I am disappointed.

. . .

We do not convene en banc to exercise plenary review over panel decisions. Yet that is

precisely what has happened here because the State has failed to identify either a conflict between the panel decision and binding precedent or a matter of exceptional public importance that this case raises.

So, is the deeply divided Sixth Circuit now planning to conduct en banc review for all the habeas petitioners that beat the odds with their panel draw? Stay tuned.

Full post as published by Decision of the Day on January 04, 2008 (boomark / email).