Habeas Corpus - Summary Order w/o Sotomayor

[UPDATED]

Habeas grant in a summary order today.

Smith v. Rock, available here, Aug. 27, 2009, Newman, Wesley, Rakoff, DJ

• Affirming Grant of Habeas
• Issue: whether petitioner due process rights were violated where the trial court neglected to sua sponte order a competency hearing

One thing to note, Sotomayor was originally on the panel.  I have previously noted that in many of the recent decisions, the case was decided by a two judge panel with Sotomayor being mentioned in a footnote.  When the remaining two judges agree on the outcome, then the two judges are enough.   However, unlike those cases, a third judge was randomly designated to the case.  On the surface, it's a little odd since this was a unanimous decision.

So I checked the pertinent local rule.  Here's what it says:

Unless directed otherwise, a panel of the court shall consist of three judges. If a judge of a panel of the court shall cease to continue with the consideration of any matter by reason of recusal, death, illness, resignation, incapacity, or other reason, the two remaining judges will determine the matter if they reach agreement and neither requests the designation of a third judge. If they do not reach agreement or either requests such a designation, another circuit judge will be designated by the Clerk to sit in place of the judge who has been relieved. The parties shall be advised of such designation, but no additional argument will be had or briefs received unless otherwise ordered.

Since the other two judges were in agreement, it appears that one of them asked for a third judge to be designated.  The reason for this is kind of hard to tell, so let me engage in some speculation.  Maybe they felt uncomfortable with a panel of two where one was a district judge.  Maybe they wanted a third judge to make them feel more certain about the outcome since it was a habeas grant.  Really can't say. 

UPDATE: After this post, I received an e-mail from Andy Fine at Legal Aid concerning the summary order.  He had an interesting theory about Wesley's designation.  His take: Sotomayor may have disagreed with the other two judges in the original panel and was potentially drafting a dissent.  Here's what he wrote:

Procedurally, it seems likely that Sotomayor, who was on the original panel, had preliminarily dissented from the decision to affirm.  In all other cases handed down since her elevation in which she was on the original panel,  the decision has been released with the remaining two judges in agreement, with the 2d Circuit dropping the following footnote, in each instance:  "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

Here, however, the footnote reads: "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The Clerk has designated, by random selection, the Honorable Richard C. Wesley to replace her." 

 

This is impossible to prove, but logically, it seems likely that Sotomayor and her two fellow panelists, Rakoff (sitting by designation) and Newman, were split, and that after her departure, the court deemed it necessary to vouch in a third judge(Wesley), either to break a tie or to create the impression of unanimity.  Since Rakoff and Newman both voted to affirm, Wesley probably may not have been vouched in to break a tie, but Sotomayor may have written a dissent and the court thought that was sufficient to exercise their discretion to substitute another judge.  Of course, if either Newman or Rakoff changed his mind during the pendency of the decision, Sotomayor originally dissented and Wesley was supposed to be the tie-breaker. 

This theory makes a lot of sense.  More sense than the two theories I proposed.  Nevertheless, it is a troubling theory as it does provide evidence that Sotomayor leans to the right on habeas issues. 

On the other hand, Andy does point out in his e-mail that Wesley seems to be getting better in criminal cases:  "He recently wrote a decision reversing a conviction on Miranda grounds, over the dissent of another panelist, and now, here, he took a position apparently to the left of Sotomayor's."  For those of us who had to appear before Wesley back when he was a judge on the New York Court of Appeals, it really is quite stunning and unexpected.

Comments

[Risa Gerson]

Andy's theory makes sense. I was the attorney who briefed and argued Smith v. Rock and Sotomayor did give me a very hard time at oral argument (despite Judge Jones' long and well-reasoned opinion below). I was wondering if she was going to dissent, and was pleased that after Wesley was designated to join the panel the decision was unanimous.