I wish I had caught this before it happened, but the Ninth Circuit reheard the capital habeas case of Detrich v. Ryan en banc on Tuesday (12/11). I discussed Detrich a little bit in this post. The issues in the case, according to the rehearing petition, are:
1. Did the panel err by substituting its judgment for that of the state post-conviction court and concluding that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984)?
2. Did the panel err by considering evidence that was not presented in state court notwithstanding the United States Supreme Court’s directive in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that federal review of a claim addressed on the merits in state court is limited to the evidence presented in state court?
Obviously, I care more about the second question than the first. I am guessing the en banc court will focus more on it as well.
To note, here's the panel: Kozinski, Pregerson, Reinhardt, Graber, W Fletcher, Gould, Bea, Murguia, Christen, Nguyen, Watford. As I have discussed before, there is no guarantee that any of the original panel members sit on the en banc panel. And, indeed, only one of the original members, Pregerson, is sitting on the en banc panel. He was in the majority, which granted the habeas petition.
Here is the 55-minute video of the en banc argument. Haven't watched it yet, but I will. And here's the audio if you just want to listen to it. Gotta love the Ninth Circuit for making these available (yes, I am looking right at you, Second Circuit).