The Supreme Court has docketed a cert petition in the capital case of Loving v. United States, No. 09-989. The SG’s response is due by 24 March.
We’ve posted the cert petition here. Here are the QPs:
1.WHETHER, PRIOR TO APPLYING THE INEFFECTIVE ASSISTANCE OF COUNSEL TEST OF STRICKLAND V. fiASHINGTON, 466 U.s. 668 (1984), A COURT CONSIDERING A HABEAS PETITION MUST DETERMINE IF A PETITIONER’S CLAIM SHOULD BE EVALUATED SUBJECT TO A PRESUMPTION OF EVIDENTIARY PREJUDICE, IF PREJUDICE DUE TO THE PASSAGE OF TIME HAS BEEN ALLEGED.
2.WHETHER THE U.S. COURT OF APPEALS FOR THE ARMED FORCES CONTRAVENED THE DIRECTIVES OF BARKER v. WINGO, 407 U.s. 514 (1972) AND DOGGETT v. UNITED STATES, 505 U.s. 647 (1992) WHEN IT FAILED TO ASSESS APPROPRIATENESS OF, LET ALONE APPLY, A PRESUMPTION OF EVIDENTIARY PREJUDICE FOLLOWING MORE THAN A DECADE OF DELAY IN THE CONDUCT OF A POST-CONVICTION HEARING CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL IN PRESENTING MITIGATION EVIDENCE IN A CAPITAL SENTENCING PROCEEDING.
Today’s SCOTUS order list includes the denial of the military cert petition in Weston v. United States, No. 09-287.
Devery Lane Taylor, acting pro se, has asked the Chief Justice to extend his cert deadline from today until 27 March 2010. Taylor v. United States, No. 09A695. CAAF summarily granted and affirmed in Taylor’s case on 28 October 2009. United States v. Taylor, __ M.J. ___, No. 09-0581/AF (C.A.A.F. Oct. 28, 2009).
The full House Judiciary Committee has scheduled a markup of H.R. 569, the Equal Jutice for Our Military Act to expand the Supremes’ cert jurisdiction over military justice cases, for 1015 tomorrow. The bill has previously been scheduled for markup but then been delayed at least three times. But tomorrow’s markup schedule lists H.R. 569 first, giving us hope that the markup will actually occur tomorrow.
Today’s order list includes the denial of the military cert petition in Wiechmann v. United States, No. 09-418.
H.R. 569, the Equal Justice for Our Military Act, was scheduled to be the third bill marked up by the House Judiciary Committee today. But the committee ran out of time. We’ll be on the alert for a rescheduled markup session.
As is standard practice in military cases, the SG waived the United States’ right to respond to the cert petition in Ashby v. United States, No. 09-757.
Note the following from the SG’s brief in opposition in Wiechmann v. United States, No. 09-418:
The petitioner (Pet. 3) raises only a Sixth Amendment claim, and he does not assert any independent violation of the UCMJ. Nor could petitioner raise a statutory claim. 28 U.S.C. 1259 limits this Court’s review to “[d]ecisions” of the CAAF. The CAAF granted review only on petitioner’s Sixth Amendment claim (Pet. App. 2a), and decided that issue only.
Brief for the United States in Opposition at 7 n.2.
This is a reprise of the debate between Gene Fidell and Michael Dreeben of the SG’s office over whether SCOTUS may exercise jurisdiction over an issue where CAAF granted review of the case, but didn’t grant review of the issue that the petitioner presents in a cert petition. Here are links (1, 2) to our previous discussion of this issue arising from the case of McKeel v. United States, No. 06-58. The second link includes an excerpt from Gene Fidell’s CAAF Rules Guide discussing the issue. And here’s a link to Mr. Dreeben’s letter to Gene, arguing the other side.
Here’s a link to the SG’s opposition in Wiechmann v. United States, No. 09-418,, which was filed on Christmas Eve. The cert petition is here.
Here’s the QP from the cert petition:
Whether the lower court erred by failing to find that the Convening Authority violated Petitioner’s Sixth Amendment Right to Counsel when the Convening Authority refused to recognize one of Petitioner’s detailed defense counsel.
And here’s the QP from the SG’s opposition:
Whether the military violated petitioner’s right to counsel under the Sixth Amendment by refusing to recognize one of petitioner’s two appointed military counsel at various pretrial stages before petitioner entered a guilty plea with the assistance of both counsel to the charges at issue.
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