Monday, November 30, 2009

Supreme Court GVR's Or SRMEOPR's A Decision From The Fifth Circuit In Webster v. Cooper, 558 U.S. __ (2009) (08-10314)

In Webster v. Cooper, 558 U.S. __ (2009) (08-10314), the United States Supreme Court reversed the Fifth Circuit's decision below in light of Jimenez v. Quarterman, 555 U.S. --, 129 S.Ct. 681 (2009)

The Fifth Circuit's unpublished order denying a certificate of appealability can be found here.  The District Court Judge in the Middle District of Louisiana approved a magistrate's report and the District Court's short order can be found by clicking on the following link:  Webster v. Cooper, NO. CIV.A. 07-601-A, 2008 WL 906397 (M.D. La. Apr 02, 2008).  The Magistrate's Report can be found by clicking here.  There is also a one word opinion from the Supreme Court of Louisiana involving this defendant which can be found by clicking on the following link: State v. Webster, 954 So. 2d 150 (La. 2007).

Justice Scalia wrote a dissent to the short opinion stating:
The parties do notagree, and it is not clear, whether under Louisiana law petitioner’s motion to vacate would be regarded as restart-ing the clock for his direct appeal. If so, then the Jimenez error is obvious; if not, there is no error. Today, without request by (or even warning to) the parties, the Court grants certiorari, vacates the Fifth Circuit’s judgment without determination of the merits, and remands for further consideration in light of Jimenez.
Though we have sometimes GVR’d in light of decisions that preceded the decision vacated, see, e.g., Grier v. United States, 419 U. S. 989 (1974), I have acquiesced in this expansion of “intervening-factor” GVRs only when (as in Grier) our decision came so soon before the judgment in question “that the lower court might have been unaware of it.” Lawrence, supra, at 181 (SCALIA, J., dissenting). This is not such a case: We decided Jimenez on January 13, 2009, more than two months before the Fifth Circuit denied the certificate. There is thus no basis for regarding that decision as an “intervening” factor—that is, one that the Court of Appeals did not have before it.
This is not, of course, the first time the Court has GVR’d on the basis of a case decided long before the Court of Appeals ruled, see, e.g., Robinson v. Story, 469 U. S. 1081 (1984) (three months), nor the first time I have protested, see Lawrence, supra, at 184 (SCALIA, J., dissenting) (more than a year).
Once we disregard the logic (and the attendant limits) of “interven-ing-factor” GVRs, they metastasize into today’s monster.  We should at least give it a new and honest name—not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster.


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