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July 10, 2012

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I will respectfully disagree that the Supreme Court's summary reversals caused the Second Circuit to flip in Rivera. If you recall, the same thing happened in Policano -- a panel found in favor of the petitioner, the state moved for rehearing en banc, the panel decided to vacate its opinion and certify a question of law to the NY Court of Appeals, and even so, five judges believed that the case should have been reheard en banc anyway. This was well before the wave of summary reversals, during a period when the prevailing interpretation of AEDPA was considerably more lenient than it is today.

My read on the Rivera flip is much simpler -- a majority of the Second Circuit hates these depraved indifference cases, it thinks that the petitioners are scumbags seeking an undeserved windfall, and wants to interpret the law in such a way as to deny as many petitions as possible. My guess is that in both Policano and Rivera, a majority of the court was aghast at the precedent a "rogue" panel was setting, and when the en banc petition was filed, the other judges went to the panel and said "what are you, crazy?"

I certainly have no direct proof of this thesis, but in both the Epps panel opinion and the dissent from the denial of rehearing in Policano, you can practically feel the judges' dislike of this issue oozing from the page. Not to mention the way the same series of cases was treated as a change in the law in Henry v. Ricks and as fact-specific applications of Register in Epps -- whatever it takes to deny the damn petition.

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