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Predictable Grants

Writing at the Volokh Conspiracy back in October, I had the following post about the future of the Ninth Circuit’s decision in Musladin v. Lamarque:

CALLING ONE FIRST STREET: If you’re wondering what kind of case gets granted by the Supreme Court these days, one strong candidate to watch is the Ninth Circuit’s decision in Musladin v. Lamarque, initially decided in April and amended today. It’s an opinion from the Ninth Circuit by Judge Stephen Reinhardt (check); it granted federal habeas relief to a murder defendant on the ground that the victim’s family wore buttons with pictures of the deceased during the trial, relying on Ninth Circuit precedent despite the text of AEDPA (check); the initial panel was divided, with Judge Berzon joining Reinhardt and Judge Thompson dissenting (check); and it drew a dissent from the denial of rehearing en banc authored by Judge Kleinfeld (and another by Judge Bea), joined by Judges Kozinski, O’Scannlain, Tallmann, Bybee, Callahan, and Bea, that starts as follows:

I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully reviewed state court criminal convictions. And we have sharpened a serious circuit split.

(check check check) You can never be entirely sure, of course, but this one looks like a grant to me.

Indeed, the Supreme Court granted cert in the case as announced in today’s order list.

The Court also granted cert in another criminal case from the Ninth Circuit case, United States v. Resendiz-Ponce, to determine the standard of review for indictment defects. You can read the SG’s petition for certiorari in that case here.

UPDATE: Via Howard, I see that the Court also issued a unanimous per curiam summary reversal of the en banc Ninth Circuit in Gonzales v. Thomas.