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Tuesday, May 10, 2011

Did the Supreme Court recently exercise a power that had lain dormant for decades?

The Supreme Court rules permit a petitioner to seek rehearing of a denial of certiorari. The deadline for doing so is 25 days after the denial of certiorari, and the rules really seem to mean it, as they state that "[t]he Clerk will not file" an untimely petition (Rule 44.4). Nonetheless, the Court has long asserted the power to grant a petitioner leave to file a petition for rehearing out of time. The leading cases for this proposition, which are getting pretty old, are Gondeck v. Pan Am. World Airways (1965) and US v. Ohio Power Co. (1957). This practice was never common, and it had seemed like the Supreme Court had gotten out of the business of granting leave to file rehearing out of time. Based on some quick research, the most recent instance I could find in which the Court had accepted an untimely petition for rehearing of a denial of certiorari was about 40 years ago (in Tidewater Oil Co. v. US, 405 U.S. 986 (1972)).

Until last month, that is.

On April 5, the Supreme Court granted a petitioner leave to file an out-of-time petition for rehearing in Foster v. Texas. This is a capital case, and the Court simultaneously granted a stay of execution pending disposition of the petition for rehearing. The Court had previously denied cert. in January. The potential ground for rehearing is evidently that Foster's case could be affected by Maples v. Thomas, a case in which the Court granted cert. in late March. (See SCOTUSblog coverage here.) To be clear, the Court has not yet vacated the denial of certiorari; it merely granted leave to file the petition for rehearing out of time. The petition for rehearing is set for consideration at this Friday's conference. At the conference the Court could deny rehearing, such as if it thinks that the issues in the two cases are too far apart for there to be any effect on Foster's case. Or the Court could hold Foster on its docket until Maples is decided next Term and then at that time either deny rehearing or remand for further consideration in light of Maples.

There are some interesting issues here. (At least interesting enough to me that I'm writing a very short article about it.) On the one hand, at some point litigation must be final. It often happens that the Court denies cert. and then some time later the law changes in a way that could have led to a different outcome. Ordinarily we view that as unfortunate, but we don't do anything about it. On the other hand, the nature of the death penalty changes the usual calculations about finality. In addition to the theoretical questions, there is the factual question of when the Court last granted leave to file an out-of-time petition for rehearing of a denial of certiorari. As noted above, it currently looks to me like it was 1972, but these things can be tricky to find. If anyone knows of anything since then, I'd be most grateful to hear about it!

Posted by Aaron Bruhl on May 10, 2011 at 08:26 AM in Civil Procedure, Criminal Law | Permalink


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Update: The Supreme Court's electronic docket reflects that the case will now be considered at the May 26 conference. For additional coverage, see here: http://www.scotusblog.com/2011/05/119800/.

Posted by: Aaron Bruhl | May 18, 2011 11:13:23 AM

Apologies for posting twice in a row, but I would also say that the use of highly irregular procedure in capital cases is not unusual for the Roberts Court, particularly if there are strong claims of actual innocence in cases. Remember the Troy Davis case, where the Supreme Court exercised its original habeas power to transfer a successive habeas application to a district court with territorial jurisdiction to hear it - for the first time in almost fifty years.

Posted by: kovarsky | May 10, 2011 10:27:47 AM


The Court didn't just grant leave to file an out-of-time rehearing in Foster, it also stayed the execution in Cook. A few months back it granted a stay of execution in the Gayland Bradford case - which was at the same time it stayed the Foster case the first time around. All of those cases present issues about really really bad lawyering at the post-conviction phase, with varying forms of prejudice - ranging from innocence to pretty egregious trial-stage IAC claims.

Coleman left open the possibility that ineffective state post-conviction IAC might constitute cause for defaulting a trial IAC claim. But not all of those cases are in a procedural posture where the question of cause under procedural default is at issue. So what the Court is really doing with all of these cases is pretty unclear, but as you suggest - the possibilities range from "very little" to "very big," in light of the procedural irregularities that are showing up in cases presenting Maples issues.

Posted by: kovarsky | May 10, 2011 10:24:45 AM

P.S.: The Stern & Gressman treatise was the first place I looked. It speculates that the Court doesn't grant out-of-time rehearing any longer, but it doesn't say, as far as I can tell, when it last happened.

Posted by: Aaron Bruhl | May 10, 2011 8:36:41 AM

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