holding a petitioner was a prevailing party in a civil habeas petition 2 action even when the petitioner did not obtain final judgment but the district court entered a 3 voluntary stipulation in the petitioner’s favor
How later courts described this case
- holding a petitioner was a prevailing party in a civil habeas petition 2 action even when the petitioner did not obtain final judgment but the district court entered a 3 voluntary stipulation in the petitioner’s favor
- finding that “since over seventeen years had expired since the trial, it would be impossible to determine Blazak’s actual competency retrospectively”
- noting that claims dismissed with leave to amend 2 || which are not re-alleged in an amended pleading may be “‘considered waived if not 3 ||repled’”’
- stating amended complaint supersedes original 2 complaint, the latter being treated as non-existent
Written by the judges who cited it.
The opinion
BEEZER, Circuit Judge,
dissenting:
For the reasons and upon the authorities contained in my dissenting opinion previously reported, I conclude that we lack jurisdiction to consider the merits of this appeal. Blazak v. Ricketts, 971 F.2d 1408, 1415 (9th Cir.1992).
I express no views with respect to the merits absent the entry of a final judgment in the district court. I accept and follow the teaching of Justice Scalia in Honig v. Doe, 484 U.S. 305 , 108 S.Ct. 592 , 98 L.Ed.2d 686 (1988) and of Chief Justice Rehnquist in Orr v. Orr, 440 U.S. 268 , 99 S.Ct. 1102 , 59 L.Ed.2d 306 (1979).
Their position, best summarized, is that, when a judge believes that no jurisdiction exists, the judge should express no view on the merits. See Honig, 484 U.S. at 332 , 108 S.Ct. at 609 (Scalia, J., dissenting) (“Without expressing any views on the merits of this case, I respectfully dissent because in my opinion we have no authority to decide it”); Orr, 440 U.S. at 300 , 99 S.Ct. at 1122 (Rehnquist, J., dissenting) (“I do not think the Court, in deciding the merits of appellant’s constitutional claim, has exercised the self-restraint that Art. Ill requires in this case. I would therefore dismiss Mr. Orr’s appeal”).
I am also aware of a modified position taken in a concurring opinion filed by Justice Stevens in Connecticut v. Johnson, 460 U.S. 73 , 103 S.Ct. 969 , 74 L.Ed.2d 823 (1983). In that case, Justice Stevens, after arguing that the Court lacked jurisdiction, proceeded to vote on the merits. See Johnson, 460 U.S. at 89-90 , 103 S.Ct. at 978-79 (Stevens, J., concurring in judgment) (Because no jurisdiction exists, “I therefore would simply dismiss the writ of certiorari. Because a fifth vote is necessary ..., I join the disposition which will allow the judgment of the Connecticut Supreme Court to stand.”). Justice Stevens did not, however, express any views on the merits of the case other than through his vote.
As the members of the panel who agree that this court has jurisdiction are divided on the merits, the prevailing opinion cannot be cited as precedent in future cases. Neil v. Biggers, 409 U.S. 188, 192 , 93 S.Ct. 375, 378 , 34 L.Ed.2d 401 (1972).