# Amicus Curiae Brief — Calderon v. Thompson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0112%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 538

## Text

Cee SS. Ee Spe

he as ie ‘a _ARTHUR'CALDERON, WARDEN, CALIFORNIA
ae are STATE PRISON AT SAN QUENTIN,

THOMAS M. THOMPSON,

--. - On Writ of Certiorari to the
SAREE SR Comes of Apyetie Sot the Ninth Circa

“e | BRIEF FOR THE NATIONAL ASSOCIATION OF
“9. \ GRIMINAL DEFENSE LAWYERS AS AMICUS
. > CURIAE IN SUPPORT OF RESPONDENT

EDWARD M. CHIKOFSKY
Counsel of Record
HTN | 140 West 62™ Street
ead ana > New York, NY 10023
Pao (212) 289-1062

Pes | BARBARA E. BERGMAN
My , 7 | . 1117 Stanford N.E.

. ghettos Albuquerque, NM. 87131
| | (505) 277-3304

| Fuses OF BYRON 8, ADAMS ¢ WASHINGTON, D.C. + 1-800-347-8208

ne ~ BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Court of Appeals retains jurisdiction to
recall its mandate and grant en banc review of a decision of
a three-judge panel of its court notwithstanding (a) the law of
the case doctrine, (b) this Court’s denial of certiorari to the
Original panel decision or (c) the preclusive successive writ
provisions of the newly-enacted Antiterrorism and Effective
Death Penalty Act of 1996 (28 U.S.C. §2244(b))

2. Whether the Court of Appeals abused its discretion
in granting en banc review and recalling its mandate where it
concluded that the original three-judge panel decision was an
erroneous ruling which worked substantial injustice and where
an earlier vote on en banc review had not been taken because
of the court’s own administrative error.

3. Whether the Court of Appeals, sitting en banc, erred
in concluding that the three-judge panel “committed
fundamental errors of law that would result in manifest
injustice” sufficient to justify recalling the mandate where the
en banc court found that, but for the ineffective assistance of
counsel received by respondent at trial, he would not have
been found guilty of the sole predicate offense that made him
death-eligible under California law.

ii

TABLE OF CONTENTS

THE COURT OF APPEALS ACTED WITHIN ITS
JURISDICTION IN GRANTING EN BANC
REVIEW TO RECALL ITS MANDATE IN THIS
CAPITAL HABEAS APPEAL
NOTWITHSTANDING THE DENIAL OF
CERTIORARI, THE LAW OF THE CASE
DOCTRINE OR THE PRECLUSIVE SUCCESSIVE

WRIT PROVISIONS OF THE AEDPA ........

A. The En Banc Court Acted Well Within Its
Authority In Recalling Its Mandate Within Sixty

OD. ba ke was Sense Weee

B. The Court Of Appeals Acted Appropriately
Within Its Authority In Convening En Banc To
Consider Recalling The Mandate And

Thereafter Granting Merits Review ........

C. The Law Of The Case Doctrine Does Not
Preclude The En Banc Court From Reviewing A

Decision By One Of Its Three-Judge Panels ..

D. The En Banc Court’s Recall Of Its Mandate To
Rehear The Same Issues Previously Considered
By The Original Three-Judge Panel Does Not
Implicate The Successive Writ Provisions Of

IE als cc'nivb vn Hs Cpe ee eves

12

A he ~

ill
Page

fl. THE COURT OF APPEALS PROPERLY
EXERCISED ITS DISCRETION IN GRANTING
EN BANC REVIEW, RECALLING ITS MANDATE
AND CONDUCTING EXPEDITED MERITS
REVIEW WHERE THE COURT’S OWN
ADMINISTRATIVE ERROR WAS RESPONSIBLE
FOR DELAYING AN EARLIER EN BANC VOTE. 17

A. The En Banc Court Of Appeals Properly
Conducted Expedited Merits Review In Tandem
With Recall Of The Mandate ............ 18

B. The Full Court’s Sua Sponte Correction Of Its
Own Administrative Error In Failing To
Conduct An Earlier En Banc Poll Was Properly
Within The Court’s Discretion ........... 19

C. The Ninth Circuit's Infrequent Resort To En
Banc Review Further Evidences The Court's
Careful Consideration Of The Appropriate Use

of Limited Judicial Resources ............ 21
DU UradnG db udees apace sceccoccoese 23
Appendix:

En Banc Decisions By Circuit, 1980-1996 ..... A-l

IV
TABLE OF AUTHORITIES
Page

Cases:
Adamson v. Lewis, 955 F.2d 614 (9th Cir. 1992) ..... 6
Amadeo v. Zant, 486 U.S. 214 (1988) ............ 7
American Iron and Steel Institute v. E.P.A.,

ee PS Be no a obey 0 6 5
Arizona v. California, 460 U.S. 616 (1983) ........ 13
A to Z Portion Meats, Inc. v. N.L.R.B., 643 F.2d 390

SE 3 ho Wine US b.de oho caeles 6
Barefoot v. Estelle, 463 U.S. 880 (1983) .......... 4
Brown v. Allen, 344 U.S. 443 (1952). ............ 14
Cahill v. New York, New Haven & Hudson RR..,

er ee Pe eee 8
Cooper v. Oklahoma, 116 S.Ct. 1373 (1996). ....... 1
Christianson v. Colt Industries Operating Corp..,

Gb UE, Gr a tiv ho 666 66h S60 80 13

Dilley v. Alexander, 627 F.2d 407 (D.C. Cir. 1980)... 6
Gondeck v. Pan American World Airways, Inc..,

Se i En ee it a oss ge ate 8
Greater Boston Television Corp. v. F.C.C..,

CO ll 5
Hazel-Atlas Glass Co. v. Hartford-Empire Co..,

EE ERS, ee Oe ee 7

In re Central R.R. of New Jersey, 485 F.2d 208
Se a oo bRdduadedieew ed e'ses 14

Vv

Table of Authorities (continued)
Page

Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) ..... 14
Johnson v. Bechtel Assocs. , 801 F.2d 412

RE Ea ee re 16
Krimmell v. Hopkins, 56 F.3d 873 (8th Cir. 1995) .... 8
Laffey v. Northwest Airlines, Inc. , 740 F.2d 1071

Re EN ES ee ae 15
Lindh v. Murphy, 117 S.Ct. 2059 (1997) .......... 16
Maryland v. Baltimore Radio Show, Inc. , 338 U.S. 912

DS. thchtuus Opus os Wee eh s'<.a% > 0 s 14
Messenger v. Anderson, 225 U.S. 436 (1912) ....... 12
Missouri v. Jenkins, 495 U.S. 33 (1990) .......... 9
Montana v. Egelhoff, 116 S.Ct. 2013 (1996) ........ |
Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996)... . 16
Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996) ..... 6
Patterson v. Crabb, 904 F.2d 1179 (7th Cir. 1990) ... 6
Ruiz v. Norris, 104 F.3d 163 (8th Cir. 1997) ....... 16

Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1 (1963) . 9
Shimman v. Intl. Union of Oper. Engrs., 744 F.2d 1226

ee 14
Sparks v. Duval County Ranch Co., 604 F.2d 976

ee 8
Teague v. Lane, 489 U.S. 288 (1989) ............ 12

vi
Table of Authorities (continued)
Page
Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326
ER eo. Wha ne ek a tn Ce ate ie > 6

Thompson v. Calderon, 109 F.3d 1358 (9th Cir. 1997) . 3
Thompson v. Calderon, 120 F.3d 1042 (9th Cir. 1997) . 4
Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) . 4
Triestman v. United States, 1997 WL 529622

Peat EY irs LUE wo as bicde Webs aces 8
United States v. American-Foreign S.S. Corp..,

I a ee ll
United States v. Carver, 260 U.S. 482 (1923) ....... 14
United States v. Haldeman, 559 F.2d 31

Ry ere eS Sg ee 4
United States v. Melendez, 60 F.3d 41 (2d Cir. 1995)... 8
United States v. Monsanto, 491 U.S. 600 (1989) ..... 10

United States v. Ohio Power Co. , 353 U.S. 98 (1957). . 7
Van Gemert v. Boeing Co., 590 F.2d 433

a een age AS Se SN gi aa 13
Watkins v. United States Army, 875 F.2d 699

SG ER TOs iwahe Ww Sid d¥ 6 We.0 6 Owen 14
Western Pacific Railroad Corp. v. Western Pacific

Railroad Co., 345 U.S. 247 (1953) ........... 5
White v. Murtha, 377 F.2d 428 (Sth Cir. 1967) ...... 13

Williams v. Calderon, 83 F.3d 281 (9th Cir. 1996)... . 16

Table of Authorities (continued)
Page
Zipfel v. Halliburton Co _ 261 F.2d 565
re so Gk G who atl eo he's bee 6
Miscellaneous:
Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. 104-132, 110 Stat. 1214 (1996) ........ 4

Thomas E. Baker, Rationing Justice on Appeal: The
Problems of the U.S. Courts of Appeals (1994) .. 19

Douglas H. Ginsburg & Donald Falk, The Court En
Banc: 1981-1990, 59 Geo. Wash. L. Rev. 1008
ES Wares Fad wire Ua aon bo ba 8 bale << )

Arthur D. Hellman, Breaking the Banc: The Common-
Law Process in the Large Appellate Court, 23 Ariz.
8 eR ee 21

Arthur D. Hellman, Dividing the Ninth Circuit: An Idea
Whose Time Has Not Yet Come, 57 Mont. L. Rev.
RTE ES IS a ae ee 21

Arthur D. Hellman, Jumboism and Jurisprudence: The
Theory and Practice of Precedent in the Large
Appellate Court, 56 U.Chi. L. Rev. 541 (1989) .. . 21

Arthur D. Hellman, Restructuring Justice (1990) ... . . 19
Peter Linzer, The Meaning of Certiorari Denials,
Pe ss SPRUE occ cect cence 14
Albert Maris, Hearing and Rehearing Cases En Banc,
a Ts a gs ll
James Wm. Moore, Moore’s Federal Practice
ee ee a. oe ee wie « 13

Vili

Table of Authorities (continued)

Page

Richard A. Posner, The Federal Courts: Challenge and

I, MR i aS

Michael E. Solimine, Ideology and En Banc Review,

ge a ee

Michael Ashley Stein, Uniformity in the Federal Courts:
A Proposal for Increasing the Use of En Banc
Appellate Review, 54 U. Pitt. L. Rev. 805 (1993). . 9

Charles A. Wright, Arthur Miller, Edward Cooper,

Federal Practice and Procedure (1996)

oO ine i tp ll —
<< oct * o Sate ee ee ee ee eee or ~

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os a ee ee

————

BRIEF FOR THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS AMICUS
CURIAE IN SUPPORT OF RESPONDENT

Interest of Amicus Curiae

Founded in 1958, the National Association of Criminal
Defense Lawyers is one of the Nation’s leading organizations
advancing the mission of criminal defense lawyers to ensure
justice and due process for persons accused and convicted of
crime. NACDL’s mission, as defined in its bylaws, is to
“Ensure justice and due process for persons accused of crime
. . . Foster the integrity, independence and expertise of the
criminal defense profession . . . and Promote the proper and
fair administration of justice.” NACDL has 9,000 members
nationwide — along with 78 state and local affiliate
organizations numbering 25,000 members — including private
criminal defense lawyers, public defenders and law professors
committed to preserving fairness within America’s criminal
justice system. The American Bar Association recognizes
NACDL as an affiliate organization and awards it full
representation in its House of Delegates. NACDL has
appeared before this Court on many occasions as amicus
curiae. See, e.g., Cooper v. Oklahoma, 116 §.Ct. 1373
(1996); Montana v. Egelhoff, 116 S.Ct. 2013 (1996).'

This case poses important questions of great concern to
amicus curiae: whether the federal courts of appeals
exercising jurisdiction over habeas corpus appeals filed by
death-sentenced state prisoners may recall their mandate and
grant en banc review where the en banc court concludes that

' Both parties have consented to NACDL’s appearance in this
matter as amicus curiae. No counsel for any party has authored this brief
in whole or in part and no person or entity, other than amicus curiae, has
made a monetary contribution to the preparation or submission of this
brief. Sup. Ct. Rule 37.6.

2 ~

the three-judge panel that initially heard the appeal has
committed a fundamental error of law resulting in manifest
injustice. This question is particularly compelling in this
case, where the en banc court concluded on the merits that the
errors and omissions of defense counsel at respondent’s state
trial directly contributed to his client’s conviction of the
predicate offense that was the sole special circumstance
making him death-eligible under California law.

As an organization of criminal defense attorneys who
regularly litigate throughout the state and federal courts of this
nation, NACDL brings to the Court a significant perspective
on the unique role of counsel in providing effective
representation in capita] cases as well as on the role of the
federal courts exercising their habeas jurisdiction in the
review of state criminal trials and appeals.

SUMMARY OF ARGUMENT

1. The court of appeals acted well within its jurisdiction
in granting en banc review to recall its mandate in this capital
habeas appeal. Notwithstanding this Court’s denial of
certiorari to the original panel decision, which reversed the
district court’s grant of the writ on grounds of ineffective
assistance of counsel, the en banc court was within its
authority in promptly recalling its mandate on grounds of
manifest injustice and thereafter granting merits review,
reversing the original panel and granting partial habeas relief.
The law of case doctrine does not prevent an en banc court
from reviewing a decision of one of its panels. Nor does
rehearing en banc the identical issues previously considered
by the panel implicate the successive writ provisions of the
newly-enacted AEDPA.

2. The court of appeals properly exercised its discretion
in convening en banc to consider recalling its mandate and

tl Mane a OEE NGL i Cs al, OA ly, Tila a Pt Ray My eg am ae sme -
‘

3

according merits review to relator’s ineffective assistance of
counsel claims. Where it was the court’s own administrative
error that was responsible for its failure to take a timely poll
of the nonrecused, active judges of the full court during the
regular rehearing process, the court properly exercised its
discretion in according relator the belated en banc
consideration that his claims ultimately warranted.

ARGUMENT

I. THE COURT OF APPEALS ACTED WITHIN ITS
JURISDICTION IN GRANTING EN BANC REVIEW
TO RECALL ITS MANDATE IN THIS CAPITAL
HABEAS APPEAL NOTWITHSTANDING THE
DENIAL OF CERTIORARI, THE LAW OF THE
CASE DOCTRINE OR THE PRECLUSIVE
SUCCESSIVE WRIT PROVISIONS OF THE AEDPA

In weighing the often competing interests of federalism
and finality with those of fundamental fairness in considering
the constitutional claims of a death-sentenced state prisoner,
the Court of Appeals for the Ninth Circuit held the balance
true. It properly determined on the merits that Thomas
Thompson had received ineffective assistance of counsel at his
state murder triai and that he was tangibly prejudiced insofar
as his attorney’s errors and omissions blotted out his colorable
claim of innocence of the rape charge that was the sole
predicate making him death-eligible under California law.

While the State, not surprisingly, disputes the court of
appeals’ resolution of the merits, it saves its principal fire for
the manner in which the full court granted en banc review and
resumed jurisdiction over the appeal — in effect, rehearing de
novo the original three-judge panel’s decision which reversed
the district court’s grant of habeas corpus relief. See
Thompson v. Calderon, 109 F.3d 1358 (9th Cir. 1997).

4

The court of appeals, however, acted well within its
authority in reasserting jurisdiction over the appeal. Pursuant
to a vote of the full court, it convened en banc to decide
whether to recall the mandate to consider whether the ori_ inc]
panel’s decision would result in a fundamental miscarriage of
justice. Thompson v. Calderon, 120 F.3d 1042, 1043 (9th
Cir. July 30, 1997). After hearing argument on August 1,
1997, the en banc court recalled the mandate and reviewed
Thompson’s ineffective assistance of counsel claim on the
merits. Thompson v. Calderon, 120 F.3d 1045 (9th Cir.
August 3, 1997). As the en banc court explained in some
detail (120 F.3d at 1047-51), a timely vote on en banc review
mistakenly had not been taken during the earlier rehearing
period because of inadvertent administrative errors committed
within the court itself.

Accordingly, notwithstanding this Court’s denial of
certiorari to the original panel decision, neither the law of the
case doctrine, principles of finality and res judicata nor the
preclusive successive writ provisions of the newly-enacted
Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. 104-132, 110 Stat. 1214, codified at 28 U.S.C.
§2244(b), effective April 24, 1996, prevented the en banc
court of appeals from recalling its mandate, properly hearing
the case on the merits and according it expedited merits
consideration under the principles of Barefoot v. Estelle, 463
U.S. 880 (1983) and successor cases. |

i I lt A el ee ee ee ee ee TY

UT A ER Deb atte. ab lll

ee aS Tek oe

5

A. The En Banc Court of Appeals Acted Well
Within Its Authority In Recalling its Mandate
Within Sixty Days of its Issuance

While the original panel denied Thompson’s emergency
motion seeking recall of the mandate and reconsideration of
the merits, the court of appeals was well within its authority
in convening en banc to consider recall of the mandate. See
Western Pacific Railroad Corp. v. Western Pacific Railroad
Co., 345 U.S. 247, 272 (1953) (Frankfurter, J.,
concurring)(“It may be proper to require petitions for
rehearing en banc to be made to the panel in the first instance,
but to allow the discretionary function under [28 U.S.C.]
§46(c) to be discharged definitively by the panel whose
judgment may call for en banc action is to treat the statute as
an empty, purposeless form of words.”)

The power of the court of appeals to recall its mandate
has long been recognized. 28 U.S.C. §2106 expressly
authorizes an appellate court to affirm, modify or vacate any
judgment or order of a court brought before it for review, and
to enter such judgment or require such further proceedings “as
may be just under the circumstances”. Greater Boston
Television Corp. v. F.C.C., 463 F.2d 268, 277 (D.C. Cir.
1971)(applying §2106); American Iron and Steel Institute v.
E.P.A., 560 F.2d 589, 592, 593-94 (3d Cir. 1977)(applying
§2106 to appellate court’s reconsideration of its own
decisions, not merely review of lower court rulings). As
Judge Leventhal characterized the court’s power in this
regard, “[t}he recall of an appellate mandate to avoid injustice
is a continuation, in the appellate sphere, of a deeply rooted
equity jurisprudence.” Greater Boston, 463 F.2d at 279. See
16 Charles A. Wright, Arthur Miller, Edward Cooper,

6

Federal Practice and Procedure §3938 (2d ed. 1996)(and
authorities collected therein).

While the recall power is undisputed, it is utilized
sparingly, in deference to interests of repose and finality in
Stigaten. Accordingly, whether characterized in terms of
“good cause”, “special circumstances” or “preventing
injustice”, the critical determination is whether the litigant has
demonstrated some reason sufficiently compelling to
overcome the policy of finality. Zipfel, 861 F.2d at 567-68
(“an overpowering sense of fairness and a firm belief that this
is the exceptional case requiring recall of the mandate to
prevent an injustice”); Greater Boston, 463 F.2d at 277-78
(“good cause”, “exceptional circumstances”, “preventing
injustice”); see also Nevius v. Sumner, 105 F.3d 453, 460-61
(9th Cir. 1996); cf. Adamson v. Lewis, 955 F.2d 614, 618-20
(9th Cir. 1992).°

* Even courts disclaiming reliance on statutory authority
nonetheless agree on the courts’ recall power, finding it rooted simply in
its “inherent power” over its own jurisdiction as well as its supervisory
“power to protect the integrity of its own processes.” See, e.g., Patterson
v. Crabb, 904 F.2d 1179, 1180 (7th Cir. 1990); Zipfel v. Halliburton Co.,
861 F.2d 565, 567 (9th Cir. 1988); A to Z Portion Meats, Inc. v.
N.L.R.B., 643 F.2d 390, 391 n.1 (6th Cir. 1980); Dilley v. Alexander,
627 F.2d 407, 410 (D.C. Cir. 1980). Certainly, there can be little dispute
that mandate stays and recalls are sufficiently necessary incidents of
appellate jurisdiction and authority to rehear appeals en banc, pursuant to
28 U.S.C. §46(c), F.R.A.P. Rule 35 and Textile Mills Sec. Corp. v.
Commissioner, 314 U.S. 326 (1941), to fall within the appellate court’s
inherent powers.

> The Third Circuit suggests an additional factor — whether
recall would be in the public interest — finding that this consideration also
applies under the rubric of “good cause” or “special circumstances”.
American Iron and Steel Institute, 560 F.2d at 598.

— a

7

Here, the en banc court relied upon two compelling
considerations. First, the court’s normal en banc procedure
did not function in its customary manner so as to allow all the
active judges in this geographically far-flung circuit to
properly participate. Because of a procedural
misunderstanding within the court — for which the litigants
bore no responsibility — a request for an en banc poll within
the circuit was not made and voted upon at the appropriate
time. Cf. Amadeo v. Zant, 486 U.S. 214, 222 (1988)(litigant
not penalized by forfeiture of claim where failure to address
it was due to an impediment external to the parties). Second,
the en banc court concluded on the merits that in reversing the
district court, the original panel made a fundamental error of
law that, if not corrected, would lead to a miscarriage of
justice — i.e., the execution of a person who might well be
innocent of the sole death-qualifying circumstance found
against him. 120 F.3d at 1048.

Under analogous circumstances, this Court itself has
recognized that, notwithstanding its “deep rooted policy ip
favor of the repose of judgments*, the ordinary principles of
finality must yield to the overriding interest of “correcting
injustices which, in certain instances, are deemed sufficiently
gross to demand a departure from rigid adherence to the term
fof court] rule”, where enforcement of the judgment is
“manifestly unconscionable”. Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 244-45 (1944), as
quoted in Greater Boston, 463 F.2d at 278. Indeed, on
several occasions, it has acted sua sponte to vacate denials of
certiorari or rehearing and has recalled its original mandate as
“erroneous”, finding that under the sui generis circumstances
of the particular case that “the interests of finality of litigation
must yield where the interests of justice would make unfair
the strict application of our rules.” United States v. Ohio
Power Co., 353 U.S. 98, 99 (1957). See also Gondeck v.

Pan American World Airways, Inc., 382 U.S. 25, 26-27
(1965)(accord); Cahill v. New York, New Haven & Hudson
RR., 351 U.S. 183 (1956)(original mandate recalled as
“erroneous”). oy

B. The Court of Appeals Acted Appropriately
Within Its Authority In Convening En Banc
To Consider Recalling The Mandate And
Thereafter Granting Merits Review

Pursuant to the vote taken by the majority of its active
judges, the court of appeals convened en banc to consider
recall of the mandate, which it addressed in tandem with the
merits of Thompson’s constitutional claims. This expedited
procedure was perfectly proper. A court of appeals is entitled
both to reconsider a prior decision sua sponte, see, @.g.,
United States v. Melendez, 60 F.3d 41, 44 (2d Cir. 1995),
vacated in part on other grounds, 116 S.Ct. 900 (1996), and
to order a rehearing sua sponte, see, e.g., Krimmell v.
Hopkins, 56 F.3d 873, 874 (8th Cir. 1995). See Triestman v.
United States, __ F.3d _, 1997 WL. 529622, at *5 (2d Cir.
1997)(Calabresi, J.)(even the restrictive new filing rules and
appellate review provisions for successive petitions under
AEDPA “do[{] not purport to limit the court’s own power to
review its decisions or to undertake a rehearing. * * * [A]
court of appeals retains the authority to order a rehearing sua
sponte.”); cf. Hazel-Atlas Glass Co., 322 U.S. at 246 (“Surely
it cannot be that preservation of the integrity of the judicial
process must always wait upon the diligence of litigants”).
Indeed, the court of appeals may rehear a case en banc
notwithstanding the absence of any motion for rehearing.
Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (Sth
Cir. 1979).

In Western Pacific Railroad Corp., 345 U.S. at 250, 257-
60, this Court reaffirmed that while the Judicial Code

9

provides that cases ordinarily “shall be heard and determined
by a court or panel of not more than three judges * * * “ (28
U.S.C. §46(c)), the statute constituted a broad grant of power
to each court of appeals to hold en banc hearings, vesting
wide discretion in each court to decide for itself just how and
when that power shall be exercised. See also Shenker v.
Baltimore & Ohio R. Co., 374 U.S. 1, 4-5 (1963).*

Accordingly, courts of appeals have almost unfettered
discretion to hear cases en banc virtually everywhere
throughout the appellate pipeline — i.e., appeals may be taken
en banc from the very outset (e.g., United States v.
Haldeman, 559 F.2d 31 (D.C. Cir. 1976)) or even on pretrial
interlocutory review heard concurrently during the pendency

* Clearly, a decision by all the active judges of a federal circuit
to grant en banc review is made entirely independent of — and is not
bound by the same policy or time-constraints as — a request for ordinary
panel rehearing. As this Court noted in Missouri v. Jenkins, 495 U.S. 33,
45-48 (1990), the difference between an F.R.A.P. Rule 40(a) petition for
panel rehearing and a Rule 35(a) suggestion for rehearing en banc is
important with respect to this Court's certiorari jurisdiction. A timely
petition for panel rehearing suspends the ninety day period for seeking
certiorari. A suggestion for rehearing en banc does not toll the time.
Jenkins, 495 U.S. at 45-48 & nn.i4 & 17.

The disparate impact on this Court's certiorari practice clearly
reflects the different purposes of the two rehearing devices. Rehearing en
banc is used by the full court to address questions of exceptional
importance or to maintain uniformity of the law within the circuit. See
Michael Ashley Stein, Uniformity in the Federal Courts: A Proposal for
Increasing the Use of En Banc Appellate Review, 54 U. Pit. L. Rev. 805,
813-28 (1993); Douglas H. Ginsburg & Donald Falk, The Court En Banc:
1981-1990, 59 Geo. Wash. L. Rev. 1008, 1011-13, 1022-23, 1032-38
(1991); Michael E. Solimine, Jdeology and En Banc Review, 67 N.C. L.
Rev. 29, 41-54 (1988).

10

of the underlying trial in the district court (United States v.
Monsanto, 491 U.S. 600, 605-06 & n.5 (1989)).

Nor are the two illustrative grounds formally set forth in
F.R.A.P. Rule 35(a) for convening the court en banc — (1)
securing Or maintaining uniformity of decisions, or (2)
questions of exceptional importance — exclusive or self-
defining terms. Two commentators, one of whom is a federal
appellate judge, construe these criteria flexibly (59 Geo.
Wash. L. Rev. at 1022-23):

However one may try to express them as criteria, in
practice there are three good reasons to rehear a case
en banc. First, rehearing en banc allows the full
court to maintain consistency in the case law —
intracircuit, intercircuit or between the circuit and
the Supreme Court. Second, the full court may wish
to address an issue of great importance. Third, the
full court can correct an apparently erroneous result
— either of the panel’s own or arising from an earlier
panel's decision that bound the panel whose decision
is reheard.°

* Justice Frankfurter similarly characterized the circumstances
under which en banc review would be advisable (Western Pacific, 345
U.S. at 270-71):

[DJeterminations en banc are indicated whenever it
seems likely that a majority of all the active judges
would reach a different result than the panel assigned to
hear the case or which has heard it. Hearings en banc
may be a resort also in cases extraordinary in scale —
either because the amount involved is stupendous or
because the issues are intricate enough to invoke the
pooled wisdom of the circuit.

11

In this respect, the three-judge panel that ordinarily sits
in the court of appeals may be viewed as the agent for the full
court, deputed to hear and determine cases in conformity with
the law as the full court views it. Thus, majority control of
circuit law through the en banc process “enable[s] the court to
maintain its integrity as an institution by making it possible
for a majority of its judges always to control . . . its
decisions.” United States v. American-Foreign S.S. Corp.,
363 U.S. 685, 689-90 (1960), quoting Albert Maris, Hearing
and Rehearing Cases En Banc, 14 F.R.D. 91, 96 (1953);
Ginsburg & Falk, 59 Geo. Wash. L. Rev. at 1035 (“we have
more confidence in the result to which a greater, rather than
a lesser, number of judges subscribe[]”); Stein, 54 U. Pitt. L.
Rev. at 821 (“the overwhelming importance of uniformity to
circuit law outweighs the institutional costs incurred by en
banc rehearings”); see also id. at 822-29.

Viewed in this perspective, the decision by the majority
of the active judges of a circuit to review a panel decision is
an exercise in judicial authority that is not lightly undertaken
(59 Geo. Wash. L. Rev. at 1038):

[I}t is more useful to think of the majority’s decision

to rehear a case en banc as analogous to the decision

of a minority of four Supreme Court Justices to grant

a writ of certiorari. If four Justices believe that a

court of appeals decision is or may be in error, or

that it would be desirable for the Court to make a

definitive statement of the law in a particular area,

that is reason enough for all nine Justices to hear the
case. Surely, on the Court of Appeals, if seven or
more of the twelve believe that a panel probably
erred (or was bound by a precedent that should be
reexamined), that is a good enough reason for review
by the full Court.

12

Moreover, the en banc court’s consideration of the merits
in tandem with recall of the mandate was a necessary incident
of its review function. As the court itself explained (120 F.3d
at 1051), any consideration of “manifest injustice” inevitably
requires analysis of the merits of the litigant’s underlying

claim. Accordingly, not unlike the retroactivity analysis
called for by Teague v. Lane, 489 U.S. 288 (1989),

preliminary consideration of the merits inevitably blends with
the determination of manifest injustice — i.e., the litigant
suffers no injustice if the underlying claim is nonmeritorious.
Thus, when it voted to recall the mandate, the en banc court
did so on the basis of substantial familiarity with the merits of
Thompson’s claims. This was perfectly in keeping with this
Court’s frequent admonitions that, whenever practicable,
appellate consideration of capital-case stay requests should be
combined with merits review. Cf. Barefoot v. Estelle, 463
U.S. at 894-95.

C. The Law Of The Case Doctrine Does Not
Preclude The En Banc Court Of Appeals
From Reviewing A Decision By One Of Its
Three-Judge Panels

The State wholly misconceives the law of the case
doctrine when it suggests that after the denial of certiorari and
issuance of the appellate mandate, the en banc court of
appeals lacks authority either to recall the mandate or to grant
belated en banc review.

First, while loath to reconsider questions once decided in
the same proceeding, courts nonetheless retain the power to
reconsider if they wish. See Justice Holmes’ classic
statement, Messenger v. Anderson, 225 U.S. 436, 444
(1912)(the law of the case doctrine “merely expresses the
practice of courts generally to refuse to reopen what has been
decided, not a limit to their power.”) See also 18 C. Wright,

13

A. Miller, E. Cooper, supra, §4478 (1981)(collecting
authorities); 1B James Wm. Moore, Moore's Federal Practice
§0.404 (2d ed. 1993 rev.)(collecting authorities).

The correct statement of the law, which this Court has
twice cited as authoritative, is set forth in White v. Murtha,
377 F.2d 428, 431-32 (Sth Cir. 1967). See Arizona v.
California, 460 U.S. 616, 618 n.8 (1983)(“Under the law of
the case doctrine, as now most commonly understood, it is not
improper for a court to depart from a prior holding if
convinced that it is clearly erroneous and would work a
manifest injustice. See, e.g., White v. Murtha. . .”);
Christianson v. Colt Industries Operating Corp., 486 U.S.
800, 817 (1988)(“A court has the power to revisit prior
decisions of its own or of a coordinate court in any
circumstances, although as a rule courts should be loath to do
so in the absence of extraordinary circumstances such as
where the initial decision was erroneous and would work a
manifest injustice.”) See also Moore's Federal Practice
§0.404[4.-6] at 1-35 - 11-36 n.42 (collecting multiple
circuits’ reliance on Murtha test). Here, of course, the en
banc court relied on the “manifest injustice” test in
overturning the original panel’s decision, which itself had
overturned the district court’s grant of habeas relief, after an
extensive evidentiary hearing.

More to the point, however, the law of the case doctrine
has no application here, where the court of appeals is sitting
en banc to review the very decision the State asserts is
dispositive. However binding a three-judge panel’s decision
may be on subsequent panels in the same circuit, that decision
is hardly dispositive for the court of appeals that has convened
en banc specially to review it. The Second Circuit has said it
best (Van Gemert v. Boeing Co., 590 F.2d 433, 436-37 n.9
(2d Cir. 1978), aff'd, 444 U.S. 913 (1980)):

14

[S]itting en banc, we may overrule any panel
decision that a majority of the active judges believe
was wrongly decided, unless a party would be
seriously prejudiced as a result. * * * The [law of
the case] doctrine * * * is properly applied to the
district court and to other panels of the Court of
Appeals. It cannot immunize panel decisions from
review by the court en banc.°

Nor does this Court’s denial of certiorari to the panel
decision immunize it from further review by the full court of
appeals. The denial of certiorari may serve as an end-point to
litigation by leaving the court of appeals’ prior mandate intact
— a mandate which, of course, the en banc court of appeals
retains the power to recall. Otherwise, however, the denial
of certiorari has no preced«ntial impact on the litigation which
either binds the court of appeals or precludes it from acting in
its own behalf.’

* See also Jeffries v. Wood, 114 F.3d 1484, 1492 (9th Cir.
1997)(en banc)\“law of the case is not binding on an en banc court”);
Watkins v. United States Army, 875 F.2d 699, 704 n.8 (9th Cir. 1989)(en
banc), Shimman v. Intl. Union of Oper. Engrs., Local 18, 744 F.2d 1226,
1229 n.3 (6th Cir. 1984)(“The law of the case doctrine * * * does not
impair the power of an en banc court to overrule any panel decision.”); Jn
re Central R.R. of New Jersey, 485 F.2d 208, 210-11 (3d Cir. 1973).

” It hardly needs reiteration that “{t}he denial of a writ of
certiorari imports no expression of opinion upon the merits of the case.”
United States v. Carver, 260 U.S. 482, 490 (1923)(Holmes, J., for a
unanimous Court); Maryland v. Baltimore Radio Show, Inc., 338 U.S.
912, 917-18 (1950)(Frankfurter, J., respecting the denial of certiorari);
Brown v. Allen, 344 U.S. 443, 492 (1952) (Frankfurter, J., for the Court);
Peter Linzer, The Meaning of Certiorari Denials, 79 Colum. L. Rev.
1227, 1251-53 (1979).

15

Clearly, adjudication aims at a correct decision and if the
court of appeals is convinced that the original panel decision
was palpably wrong, as it was in this case, the law of the case
doctrine does not preclude correction of plain error or
manifest injustice. See, e.g., Laffey v. Northwest Airlines,
Inc., 740 F.2d *071, 1082 (D.C. Cir. 1984).

D. The En Banc Court’s Recall Of Its Mandate
To Rehear The Same Issues Previously
Considered By The Original Three-Judge
Panel Does Not Implicate The Successive Writ
Provisions Of The AEDPA

As the en banc court noted explicitly, it granted review
of the original panel decision in this case without regard to
any new arguments, evidence or grounds for relief other than
those previously pressed before the district court (which
granted partial habeas relief) or the original appellate panel
(which reversed it). Accordingly, the en banc court acted
strictly on the basis of the original record from the district
court as well as its sua sponte conclusion that the interests of
justice required it to accord Thompson the en banc review he
should have received in the immediate wake of the panel's
decision.*

Accordingly, where the en banc court considered no
evidence or arguments not before the original panel, the
State’s suggestion that en banc review is some sort of end-run
around the newly-enacted (and harshly preclusive) successive

* While Thompson had filed a Rule 60(b) motion in the district
court, alleging newly-discovered evidence, that motion was denied in the
district court and the court of appeals dismissed the appeal in a separate
order: Thompson Ill, 120 F.3d at 1048 n.1. Thus, the only proceeding
pending before the en banc court was the rehearing of the original appeal.
Id., 120 F.3d at 1049.

16

writ provisions of the: AEDPA — 28 U.S.C. §2244(b) — is
utterly without merit.”

Indeed, the en banc court acted well within its habeas
jurisdiction. It openly acknowledged that it may not use its
recall power “‘simply as a device for granting late rehearing”,
citing several of its own decisions in which it had denied
similar relief, see, e.g., Moran v. McDaniel, 80 F.3d 1261,
1267 (9th Cir. 1996) (quoting Johnson v. Bechtel Assocs.,
801 F.2d 412, 416 (D.C. Cir. 1986)). See also Nevius v.
Sumner, 105 F.3d at 460-61; Williams v. Calderon, 83 F. 3d
281 (9th Cir. 1996).

Nor was the mandate recalled in order to allow
consideration of new grounds or contentions not raised in the
original habeas proceeding. Ruiz v. Norris, 104 F.3d 163,
164-65 (8th Cir. 1997). Obviously, the belated injection of
new evidence, claims or contentions into the earlier habeas
proceeding would have been the functional equivalent of a
second or successive petition, which would have to meet the
exacting standards now required of such petitions. /d. at 164.
In that event, of course, the new provisions of the AEDPA
would apply. Here, in contrast, the en banc court went to
great pains to emphasize that it was considering only the same
arguments and contentions previously raised before the
original panel. Thompson III, 120 F.3d at 1049.

Accordingly, just as the original panel decision is not the
law of the case once the en banc court convened to review it,

° The successive writ provisions of the newly-enacted AEDPA
apply prospectively to state prisoners wh> file new writs after the statute’s
enactment date — April 24, 1996. See Lindh v. Murphy, 117 S.Ct. 2059
(1997). Thompson, of course, filed his federal writ in the district court
in 1990 and the en banc court granted belated review of that first writ in
the summer of 1997.

17

SO, too, it is with the en banc court’s decision to review the
original panel decision. It constituted merely a resumption of
the original hierarchical review that wa: short-circuited by the
administrative error of the court itself during Thompson’s
original passage through the court of appeals earlier in the
year. In that respect, it was little different from the belated
recall of the mandate issued by judicial error in Patterson v.
Crabb, 904 F. 2d at 1180, where the Seventh Circuit gave the
litigant the one full hearing on appeal which, through judicial
error, he had been inadvertently denied.

Il. THE COURT OF APPEALS PROPERLY
EXERCISED ITS DISCRETION IN GRANTING
EN BANC REVIEW, RECALLING ITS
MANDATE AND CONDUCTING EXPEDITED
MERITS REVIEW WHERE THE COURT’S
OWN ADMINISTRATIVE ERROR WAS
RESPONSIBLE FOR DELAYING AN EARLIER
EN BANC VOTE

Given the expedited time-frame in which this case was
heard and disposed of on the merits, the court of appeals acted
well within its discretion in granting en banc review, recalling
its mandate and conducting expedited merits review. That its
belated en banc grant was caused by the court’s own
administrative error in failing to conduct an earlier en banc
pol! was certainly well within the court’s discretion to
remedy.

A brief recapitulation of the later stages of this litigation
is necessary to place the court’s expedited procedures in
context. With his execution scheduled for August 5, 1997,
Thompson filed an emergency motion with the court of
appeals requesting that the panel recall its mandate and
reconsider its earlier decision on July 22, 1997. The panel
denied the motion. TJhompson III, 120 F.3d at 1047-48.

18

However, on July 30, 1997, a majority of the nonrecused,
active judges of the circuit voted to reconsider en banc
whether to recall the mandate. Thompson II, 120 F.3d at
1043. Oral argument — devoted both to the recall question as
well as the underlying merits — was heard by the en banc
court on August 1, 1997. On August 3, 1997, the en banc
court rendered its decision. By a vote of seven to four, it
recalled the mandate, reversed the original panel opinion and
affirmed the district court’s grant of partial habeas relief.
Thompson III, 120 F.3d at 1048. Thus, expedited en banc
proceedings were conducted — and concluded — within five
days of the full court’s decision to accord te case en banc
review.

A. The En Banc Court Of Appeals Properly
Conducted Expedited Merits Review In
Tandem With Recall Of The Mandate

In Barefoot v. Estelle, 463 U.S. at 894-95, this Court
suggested that the courts of appeals adopt expedited
procedures to resolve the merits of habeas appeals heard in
connection with applications for stays of execution of death
sentences, “unless exigencies of time preclude a considered
decision on the merits, in which case the motion for a stay
must be granted.” Jd. At 894.

Here, of course, the en banc court provided just such
expedited consideration, resolving the recall question — as
well as merits review — within five days after en banc review

es

19

was granted by the full court."° Since the en banc court was
required to determine whether failure to recall the mandate
would result in a “manifest injustice”, it was obviously
required to address the merits of Thompson’s underlying
ineffective assistance of counsel claims. Thus, the decision
on recall of the mandate was so closely intertwined with the
merits of Thompson’s claim that the en banc court acted quite
expeditiously in resolving both issues in tandem without
unnecessary delay.

B. The Full Court’s Sua Sponte Correction Of
Its Own Administrative Error In Failing To
Conduct An Earlier En Banc Poll Was
Properly Within The Court’s Discretion

As this Court noted in Western Pacific, 345 U.S. at 250,
267-70, the courts of appeals are accorded unusually broad
discretion in promulgating and implementing their own
internal procedures in calling for and conducting en banc
review. Where, as here, a litigant has filed a timely
“suggestion” seeking en banc review, the manner of its
treatment and disposition is largely within the court’s well-
nigh untrammeled discretion.

Here, as the en banc court candidly conceded, the Ninth
Circuit’s administrative procedures for conducting en banc
polis among its monrecused, active judges seriously

‘© By circuit rule, as authorized by Congress, the Ninth Circuit
has adopted a limited en banc procedure. The chief judge and ten active
judges chosen by lot sit on each en banc panel; however, en banc
rehearing is granted only on the vote of a majority of all (twenty eight)
nonrecused, active judges of the court. 9th Cir. Rule 35-3. See Thomas
E. Baker, Rationing Justice On Appeal: The Problems Of The U.S. Courts
Of Appeals 80-81 (1994); Arthur D. Hellman, Restructuring Justice 63
(1990).

20

malfunctioned — through no fault of the litigants. Thompson
III, 120 F.3d at 1049. Accordingly, no en banc poll was
taken when it ordinarily would have occurred (and despite the
request of two active judges). A sua sponte request to recall
the mandate was made shortly after this Court denied
certiorari in June 1997 and the full court at that time decided
to postpone any further action until Thompson concluded state
habeas proceedings and filed a further request for federal
review. /d. at 1049. It was thus not until the filing of his
emergency recall motion on July 22, 1997 that the full court
took up his en banc request and recall motion. /d. at 1048-
49."

Clearly, in the absence of some jurisdictional defect, the
decision of a majority of the nonrecused, active judges of the
court to sua sponte correct its own administrative mistakes in
the conduct of en banc review is largely unreviewable. See,
e.g., Western Pacific, 345 U.S. at 269-70 (Jackson, J.,
dissenting [on other grounds]). Indeed, the decision by the
majority of the full court to exercise its discretion in favor of
granting further review may hardly be characterized as
arbitrary, abusive or clearly erroneous — least of all when the
merits of Thompson’s underlying claims are subsequently
found to be meritorious by a majority of the en banc court.

'! It should be underscored that while Thompson's recall motion
(and merits review) was heard by a mini-en banc court of eleven circuit
judges, the decision to grant en banc status to the application was made by
a majority of the full complement of nonrecused, active judges presently
sitting on the court. Presumably, the earlier decision to postpone a vote on
whether to grant en banc review was also made by a majority of the full
court.

21

C. The Ninth Circuit’s Infrequent Resort To En
Banc Review Further Evidences The Court’s
Careful Consideration Of The Appropriate
Use Of Limited Judicial Resources

Over the last twenty years, appellate caseloads have
mounted continuously while, not surprisingly, the judicial
resources available to meet them have not expanded
correspondingly. Nowhere has there been greater exponential
expansion of cases than in the Ninth Circuit, the largest and
most geographically disparate federal court system in the
nation. See, e.g., Arthur D. Hellman, Jumboism and
Jurisprudence: The Theory and Practice of Precedent in the
Large Appellate Court, 56 U.Chi. L. Rev. 541 (1989); Arthur
D. Hellman, Breaking the Banc: The Common-Law Process
in the Large Appellate Court, 23 Ariz. St. L.J. 915 (1991);
Arthur D. Hellman, Dividing The Ninth Circuit: An Idea
Whose Time Has Not Yet Come, 57 Mont. L. Rev. 261

(1996).

Nonetheless, en banc decisions, in the Ninth Circuit as
elsewhere, constitute a tiny minority of precedential decisions.
See Appendix Table, infra, detailing the statistics on en banc
review for each circuit from 1980 through 1996. The federal
courts nationwide have averaged fewer than 100 en banc
decisions annually. The figures for the Ninth Circuit have
averaged ten or fewer en banc dispositions each year. Indeed,
in a court system that disposed of approximately 4500 appeals
per year for 1992 through 1996, the Ninth Circuit’s annual
percentage of en banc dispositions has remained relatively
constant at a minuscule rate of 0.28% for almost twenty
years. See Ginsburg & Falk, 59 Geo. Wash. L. Rev. at 1049-
50 & Table 7; Hellman, 57 Mont. L. Rev. at 281-82; Richard

LL ne

22 23

CONCLUSION
The judgment of the Court of Appeals should be

A. Posner, The Federal Courts: Challenge and Reform 133-34
(rev. ed. 1996)."

Under the circumstances, it cannot seriously be affirmed.
contended, as the State suggests, that the Court of Appeals
for the Ninth Circuit regularly abuses its discretion by
engaging in the too promiscuous grant of en banc review. Respectfully submitted,
Indeed, the figures simply belie that contention. Given that
en banc review, while a creature of statute and rule, is
nevertheless left almost entirely to the discretion of the EDWARD M. CHIKOFSKY
nonrecused, active judges of the full court, one would be hard Counsel of Record
pressed, on this evidence, to conceive of a situation in which 140 West 62™ Street
the full appellate court’s decision to grant en banc review New York, NY 10023
would ever be an abuse of discretion. See Ginsburg & Falk, (212) 289-1062
59 Geo. Wash. L. Rev. at 1038. Certainly, its decision to
accord this case belated en banc review, in light of the BARBARA E. BERGMAN
ultimately meritorious nature of Thompson’s constitutional 1117 Stanford N.E.
claims, was a manifestly sound one. Albuquerque, NM 87131
(505) 277-3304
Counsel for Amicus Curiae
October 1997

2 The figures and percentages listed in the Appendix Table are
derived from the Annual Reports of the Director of the Administrative
Office of United States Courts for federal fiscal years 1980-1996 (Table
S-1). Compilations derived from the AO Reports for 1980-1992 may be
found at 67 N.C. L. Rev. at 45 (Table 1) and 54 U. Pit. L. Rev. at 816
(Table I). Data for 1992-1996 is derived directly from Table S-1 of each

year’s AO Report.

Appendix

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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0112%3A09. Public record. Not legal advice.