A reader brought to my attention that, on Monday, the Supreme Court denied a cert. petition in the Besser case. Besser is the case in which the Second Circuit held that the persistent felony offender statute was unconstitutional under Blakely.* However, the conviction for the Besser petitioner became final before Blakely, so Besser actually lost. And now the Supreme Court has denied Besser's cert. petition.
*As mentioned around here before, the Second Circuit decided to rehear the case involving the remaining petitioners** en banc. When decided, that opinion will probably have the name Phillips v. Artus.
**Save one, who died while the appeal was pending.
But there is definitely something a little off about the cert. denial. In the order list, it says the following:
10-5760 BESSER, JAMES V. WALSH, SUPT., SULLIVAN
The petitions for writs of certiorari are denied. Justice Sotomayor took no part in the consideration or decision of these petitions.
It says "petitions". That suggests that (at least) two petitions were filed. And since there are only two parties, that would also suggest that both the habeas petitioner and the State filed petitions.
But I checked the docket sheet and it says that only one petition had been filed -- by the habeas petitioner. In fact, the State waived its opportunity to respond. So I think that has to be a typo in the order list, unless someone can offer a better explanation.
Otherwise, I guess Sotomayor recused herself since she was one of the judges in the second Brown case* and that second Brown case controls the outcome of pre-Blakely cases.
*In a case called Brown v. Greiner, the Second Circuit rejected a claim that the persistent felony statute was unconstitutional in light of Apprendi. In a case called Brown v. Miller, the court once again rejected the claim after the Supreme Court's decision in Ring. Sotomayor was on the panel of the Brown v. Miller case.
But it does raise a bigger question -- if the Court should grant cert. from the en banc decision, would Sotomayor recuse herself? I don't see a reason why she would have to, assuming she recused herself for the reason mentioned above. But maybe there is a different reason why she recused herself in Besser. Maybe that reason would also force her to recuse herself in the en banc case? I guess all of this is way too premature and speculative at this point.