Action on Long-Pending Petitions
on Oct 28, 2005 at 3:59 pm
As at the beginning of every Term, the Court has been re-listing a variety of petitions from week to week. Some will produce summary reversals, others dissents from the denial of cert., others possibly grants (as a 4th vote is persuaded to vote to hear the case), and others nothing at all.
It is possible to figure out from publicly available information what those cases are and when the Court is likely to act. It’s also possible to glean from the questions presented what the most likely outcome is.
In docket order, here is the best bet for what will happen in the petitions I feel at liberty to discuss:
04-1538, Kane v. Espita – the question is
Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) when it granted habeas relief solely on the basis of its own circuit precedent that an incarcerated defendant who chooses to represent himself has a Sixth Amendment right of access to legal materials to assist him in preparing a defense, even though five other circuits have held that no such right exists and this court has never addressed the issue?
The case has been re-listed three times and the record requested. Given that the petitioner is the government, the case comes from the Ninth Circuit, and it presents a habeas question, the best bet is a summary reversal Monday.
04-9499, Eberhart v. United States – I don’t have the petition for certiorari in this pauper case, but based on the opinion below it likely involves whether the requirements of Fed. R. Crim. P. 33 are jurisdictional. The case has been re-listed three times. Without the papers, it is impossible to accurately guess what will happen.
05-37 and 05-45, Decena v. San Jose Charter of the Hells Angels Motorcycle Club – the questions presented are:
(1) Does the shooting of a vicious guard dog by a police officer, while serving a high risk search warrant for evidence of murder, result in a violation of the Fourth Amendment when there is no evidence of any viable alternative? (2) Was the law clearly established such that police officers should have known that, in serving a high risk search warrant for evidence of murder, the Fourth Amendment is violated by shooting vicious guard dog that stands between officers and residence to be searched? (3) Did the Ninth Circuit correctly apply the qualified immunity standard?
The case has been re-listed three times. Again, the government is the petitioner and it’s from the Ninth Circuit; the question is qualified immunity. The best bet is a summary reversal some time soon.
05-101, Bradshaw v. Richey – The questions presented are:
1) Can a federal court hearing a habeas corpus challenge to a state criminal conviction substitute its own interpretation of state law in place of the state’s highest court on the issue of whether state law allows use of transferred intent to satisfy the intent element of a criminal offense? (2) In a federal habeas challenge to a state conviction, does the Antiterrorism and Effective Death Penalty Act prevent a federal court from undertaking its own de novo review of an ineffective assistance of trial counsel claim, and from granting the writ based on facts that were not presented to the state courts?
The petition has been re-listed twice. Again, with the state as petitioner on a habeas question (this time from the Sixth Circuit, which is watched with nearly as jaundiced an eye as the Ninth) look for a summary reversal some time soon.
05-184, Hamdan v. Rumsfeld – This is the well-known Hamdan case, which has been re-listed twice. The best bet is a dissent from the denial of cert. at some point.
