Monday, October 3, 2011

Jackson v. Ryan, 659 F.3d 1215 (9th Cir. 2011) Withdrawing 2011 WL 3850774 (C.A. 9)

On September 1, 2011 the 9th Circuit panel (3-0) reversed a conviction on grounds the judge issued an improper jury instruction.  Another habeas corpus reversal of a state court. On September 27, 2011 the court issued an order, signed by only two of the three judge panel, as follows:

"The opinion filed on September 1, 2011 is hereby WITHDRAWN. The panel will issue a new opinion in due course. No petitions for rehearing or rehearing en banc will be entertained as to the withdrawn opinion. The parties will be afforded a renewed opportunity to file petitions for rehearing or rehearing en banc after the issuance of a new opinion."
Not any explanation for this unilateral withdrawal.


Although not a precedent, the original opinion was another attempt to avoid AEDPA on grounds of due process.  The Supreme Court has already condemned this practice.

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