Wednesday, April 06, 2005

Insyxiengmay v. Moran (9th Cir. - March 30, 2005)

Imagine that you're a state prisoner who's got a habeas petition that's arguably procedurally defaulted and that is subject to the AEDPA. You file your federal habeas petition, lose, and then appeal. You brief the case and then nervously wait until, a week before the oral argument, you find out who's on your panel. And it's Judges Reinhardt, Dorothy Nelson, and Thomas.

You let out a huge sigh of relief. Not your dream panel, but close enough. You throw a party. And the State gets ready to file a petition for rehearing en banc.

So it's not all that surprising that the Ninth Circuit in this case holds that the petitioner is entitled to at least an evidentiary hearing. Not that the panel is necessarily wrong: far from it. But who's on the panel clearly makes a difference. As it does here.