Habeas Corpus Blog

Habeas Corpus - En Banc Entertainment

By JK

Hello again internet universe.

The Ninth Circuit’s fascinating work in its recent en banc cases has inspired me to jump back into the blogosphere and share some news/thoughts about those recent cases.

Let’s start with some news.  Last year, I wrote about the en banc decision in Sessoms.  Briefly, in a close 6-5 en banc opinion, the Ninth Circuit granted habeas relief on the ground that the petitioner had invoked his right to counsel at the beginning of an interrogation.  The Supreme Court GVR’d it based on Salinas v. Texas.  I found that surprising as Salinas really had nothing to do with the issue in Sessoms.  The biggest wrinkle for Sessoms after the remand was that the author of the 6-5 opinion, the legendary Betty Fletcher, has passed away.  She has been replaced with McKeown. 

The case has now been scheduled for a new en banc argument.  This is going to happen next Tuesday, March 18 at 10:00 a.m. in San Francisco.  You can watch it live through the Ninth Circuit’s website.*

*A long, long time ago, I spent a great deal of time comparing the different websites of the circuit courts (I had done it for all of the New York federal district courts).  It was actually sort of related to work (at least that’s what I told myself), but mostly I just enjoy wasting time on the internet.  The Ninth Circuit had far-and-away-not-even-close the best website.  I am not just saying that because I practice in that court now.  It’s just really well done – easy to navigate, well-organized, nice to look at, has a ton of great info.  It makes me happy to visit it on a daily basis.  A nice perk of this job as now I actually get to say it’s work related!

Speaking of Sessoms, I was recently told about a supremely entertaining article about the case called “Sherlock Holmes and the Mystery of the Pointless Remand,” written by Professor James Duane.  Click the following link to read it: Download Duane article.  Totally worth the time.  The entire article is written as a conversation between Holmes and Watson.  The premise is that the “pointless” GVR in Sessoms points to a larger truth – the Supreme Court intends to summarily reverse Sessoms once it gets back in front of them. 

Sessoms is far from the only en banc habeas action in the Ninth Circuit.  Late last year and earlier this year, the Ninth Circuit issued two, count ‘em two, en banc opinions interpreting Martinez v. Ryan.  And each one, like Sessoms, has a really unique wrinkle.

The first was Detrich v. Ryan.  Detrich was a highly splintered opinion with no true majority opinion.  There was a main opinion, two concurring opinions, and a dissenting opinion.  What was called the main opinion was written by Judge William Fletcher.  Judge Fletcher broke down Martinez and explained what the standard of review should be when reviewing a Martinez claim.  Essentially, what does cause and prejudice mean when a petitioner relies upon ineffective assistance of post-conviction counsel to overcome a procedural default?  Even for a habeas-lover like me, it’s a pretty gnarly opinion.  There’s multiple layers of deficient performance analysis stacked on top of “but for” causations, that it’s a real challenge to follow.  And what makes it even harder to follow is that it was not really presented in a true majority opinion.  So the wrinkled question after Detrich was, does Judge Fletcher’s opinion, which was not joined by a majority of the en banc panel, now set forth the proper analysis for Martinez claims in the Ninth Circuit? 

The Ninth Circuit answered that question last week in a case called Claibourne v. Ryan.  Using a novel approach for the Ninth Circuit (which it adopted from other circuits), the court simply counted votes on the relevant issues, including the dissent votes, to see what conclusion got the most number of votes. 

It came out like this.  Two good results for habeas petitioners, one bad one: 

(1) where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it to conduct such a review in the first instance, if the result is uncertain.   Good result.

(2) to demonstrate “cause” – the first part of the showing of “cause and prejudice” required in order to excuse a procedural default under Coleman – the petitioner must show that his post-conviction relief counsel was ineffective under Strickland.  This is the bad one and is different from what Fletcher wrote in the main opinion in Detrich.  What this one means is that a petitioner must show that post-conviction's counsel was defective and that the outcome of the post-conviction proceedings would have been different.

(3) “prejudice” for purposes of the Coleman “cause and prejudice” analysis in the Martinez context requires only a showing that the trial-level ineffective assistance of counsel claim was “substantial.”  Good result.

The other Martinez en banc opinion was Dickens v. Ryan.  That case didn’t spend too much time on the Martinez standard, but instead focused on when a petitioner can use Martinez to overcome a procedural default.  It boiled down to this: if a petitioner presents new evidence to a federal court to improve a claim that had been previously presented to the state court, does that make the claim in the federal petition an unexhausted “new” claim such that a petitioner can rely upon Martinez to overcome the procedural default that he would inevitably face in state court if he attempted to raise the new claim?  The Dickens opinion says yes.  It's a great opinion for habeas petitioners.

My favorite part about the opinion was its language about Martinez vs. Pinholster.  Long-time readers will know that this has been a favorite issue of mine for awhile.  It’s also something that Alex has written about on here.  The Ninth Circuit makes quick work of it. And the winner is . . . Martinez!  Here’s the relevant discussion:

We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's “new” IAC claim. The state argues that the district court cannot consider new allegations or evidence proffered for the first time to the district court. In Pinholster, the Supreme Court made clear that a federal habeas court may not consider evidence of a claim that was not presented to the state court. 131 S.Ct. at 1398. However, this prohibition applies only to claims previously “adjudicated on the merits in State court proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

Pinholster does not bar Dickens from presenting evidence of his “new” IAC claim, because the claim was not “adjudicated on the merits” by the Arizona courts. While the Arizona courts did previously adjudicate a similar IAC claim, the new allegations and evidence “fundamentally altered” that claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883. Pinholster says nothing about whether a court may consider a “new” claim, based on “new” evidence not previously presented to the state courts. See 131 S.Ct. at 1401 n.10. Indeed, the Pinholster court expressly declined to “decide where to draw the line between new claims and claims adjudicated on the merits.” Id. Thus, Pinholster does not affect earlier cases like Vasquez, Aiken, and Nevius, or a federal habeas court's ability to consider new evidence where the petitioner successfully shows cause to overcome the procedural default. 

Short and sweet. And patently logical.

What’s the wrinkle in this case?  Well, soon after the opinion was issued, the petitioner died.  En banc opinions are beginning to look cursed, huh?  As a result of the death, the State moved to vacate the opinion.  Earlier this week, the Ninth Circuit denied the motion stating:

[J]udicial precedents “are not merely the property of private litigants,” but are “valuable to the legal community as a whole.”  . . . The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III.

So Dickens remains good law.  And good law it is for habeas petitioners.

The en banc machine got kicked back into gear again this week.  The Ninth Circuit agreed to rehear en banc a capital case, McKinney v. Ryan, that raised the following issue: is an Eddings error structural or is it subject to harmless error?  An Eddings error occurs when a state court refuses to allow  certain mitigating evidence during the penalty phase because that evidence was not causally connected to the crime.  Eddings stated that all mitigating evidence must be considered (I hope I am getting this right, I am a non-capital habeas person).  For years, Arizona had violated this clearly established law.  For years, the Ninth Circuit found the error structural.  But recently, a panel found that an Eddings error was harmless.  The dissent in McKinney indicated that there was now an intra-circuit split on the issue and it should be heard en banc.  Ask and ye shall receive.

Finally, there is one other pending en banc case called Frost v. Van Boenning.  It was argued last June. Reviewing the en banc petition, it appears that the issues are very standard-of-review heavy that only a true devotee of habeas will appreciate. Here's the main issue from the petition: "The New 'Super AEDPA Requirement' of Factual Identity with Supreme Court Precedent Conflicts with Supreme Court and Ninth Circuit Decisions and Presents an Issue of Exceptional Importance."  That's an issue I have also complained about on here for years (I called it the "troubling trend").  And it's something that one of my former colleague's at Brooklyn Law School, Ursula Bentele, wrote about in depth. Frost is still pending.  More info on Frost here.

Habeas Corpus - Checking In on Sessoms

By JK

Hello again, internets.  Been a long while since I posted something.  Too long.  Let's just blame the sequester.  I hope to start posting more regularly.  Fortunately, Matt has been putting up a lot of good stuff over the past few months so the group blog remained active as I adjusted to life under sequestration.  Which looks like it will painfully continue for the foreseeable future. And don't even get me started about the likely shutdown.  Grrrr. 

Back in August 2012, the legendary Betty Fletcher wrote the 6-5 en banc decision in Sessoms v. Runnels, granting habeas relief based on the police obtaining a statement from a defendant after he had invoked his right to counsel.  

Petitioner, a 19-year-old, was taken into custody and, before he was given his Miranda rights, the following exchange occurred: 

Sessoms: There wouldn't be any possible way that I could have a — a lawyer present while we do this?

[Detective]: Well, uh, what I'll do is, um —

Sessoms: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.

The California courts rejected his right to counsel claim because, in their view, he had not made an unambiguous request for an attorney.  Judge B. Fletcher* concluded that California unreasonably extended this standard to this situation.  According to Judge Fletcher, the "unambiguous" request test applies after Miranda has been given.  But before the rights are read, a request such as the one here is sufficient to assert the right to counsel under clearly established Supreme Court law that focus on pre-Miranda invocation of the right to counsel.  Beautifully reasoned opinion.

*I use "B. Fletcher" here since her son William Fletcher is also a judge on the Ninth Circuit.  So saying Judge Fletcher used to be imprecise.  At this point, if you write Judge Fletcher, you should probably be referring to W. Fletcher.

But, come on.  Let's have some real talk (NSFW due to language, I believe). In the real world, this was obviously a request for an attorney.  Breaking out, as I typically do, my uncommon sense meter, who in their right mind would not believe that this kid was asking for an attorney?  Even the police officers in this case believed that he was, as they responded to his request by convincing this young guy that having an attorney present was not in his best interest.  Feels like irony lives somewhere in there.  It rates pretty high on the meter.

Sadly, this great decision was Judge B. Fletcher's last habeas opinion.  She passed away in October 2012.

The warden sought cert. in the Supreme Court and it sat up there for the second half of the Court's term.  Then at the end of June 2013, the Supreme Court GVR'd the case based on Salinas v. Texas -- the uncommon sense case that says that you have to speak in order to remain silent.  To note, Sessoms had a different name up in the high court due to a new warden: Grounds v. Sessoms.  

Sadly again as a result of the GVR, Judge Fletcher's opinion is no longer on the books. My sense is that the GVR was a compromise among the liberal and conservative judges to avoid having to deal with a case that is not an ideal candidate for a summary reversal.  On a cynical and grisly level, it's possible that the conservative judges may also have decided to take a gamble and send it back down knowing that the lineup in a close 6 to 5 opinion was going to change now that Judge B. Fletcher could no longer participate.  But no judges would actually think that way, would they?

On remand, the Ninth Circuit ordered further briefing on whether Salinas is relevant to Sessoms. Obviously, it isn't.  And I think that's probably why the court framed the question as whether that case is "relevant" as opposed to what "impact" it had on the case.

I checked the lineup for the new en banc panel (you have to scroll down a ways on the Ninth Circuit's en banc page to find it).  The lineup remains the same, except Judge M. Margaret McKeown has now replaced B. Fletcher.  She is a Clinton appointee and has been around for awhile.  I have been told that it's a pretty good draw for the habeas petitioner.

Going be interesting to see what happens here.

 

Habeas Corpus - En Banc Watch!

By JK

This week coming up is En Banc Week at the Ninth Circuit!  On Monday through Thursday in the court's Seattle courtroom, a panel of eleven judges will be hearing a case en banc, one in the morning and one in the afternoon.  Please read the court's en banc announcement.

Two of the cases are habeas cases (the links are to the petitions for rehearing):

Dickens v. Ryan* - June at at 10:00 a.m. (the first one of the week, actually)

Frost v. Van Boening - June 26 at 9:30

*Well, the link is to the habeas petitioner's petition.  The State sought rehearing as well and its petition was granted.  The State's petition is what brought in the Martinez issue.

You can watch live videos of the en banc arguments at the courthouses in Pasadena, Portland, and San Francisco (first come first serve).  You can eventually watch and listen to the arguments in the court's audio and video archives.

Just to note, the title of this post is meant to be stated in the way that Brian Fantana said Panda Watch.  The preview for the sequel is below (Brian Fantana's hair is amazing; he looks a lot like Juan Epstein), but I can't say that I am not worried that this is going to be disappointing.  All I can say is that the preview was better the second time I watched it.

 

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

Has the Ninth Circuit found another way around Pinholster?  Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence?  Boy, these pathways around Pinholster really are a hot topic in these parts.  

On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.  

In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim.  Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase.  In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts.  While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.*  This failure was the basis of the Martinez argument.

* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse.  The new mitigating evidence in federal court was evidence of his mental illness as an adult.

This made these conservative judges angry.  In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts.  To them, this was not a "new" IAC claim.  In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.

I find the dissenting judges' analysis a little hard to accept.  In my mind, these judges are simply unhappy with the logical consequences of Martinez.  I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim.  Those are words quoted out of the first paragraph of Martinez.  

So Martinez has the upper hand in this round.  But the scorecard could change considerably after the en banc argument in Dickens.  Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well.  Looks like there are going to be many battles up ahead over the reach of Martinez.

Habeas Corpus - En Banc'ed - Updated/Edited

In January 2013, the Ninth Circuit granted a petition for rehearing en banc in a capital habeas case called Dickens v. Ryan.  According to the Ninth Circuit's en banc page, the en banc argument will be calendared the week of June 24 in Seattle, Washington.

This case poses a really interesting situation.  Petitioner lost on his main claim, that the death penalty could not be imposed on him because he was not a major participant in the murder, but obtained a remand to the district court for that court to consider a Martinez cause argument based on a procedurally-defaulted IAC claim.

Petitioner was the one who sought and obtained rehearing en banc. (ed. - see below) Petitioner's petition sought rehearing on the "major participant" issue.  The Martinez issue was not mentioned at all in the petition or even in the State's opposition (ed. - but see below).

The order granting the petition states: 

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

It's standard.  But what now happens to the Martinez issue?  (ed. - see below) Is that part of the panel decision no longer binding?  (ed. - yes - see below) Is everything now up for grabs on rehearing?  (ed. - yes - see below) Can the State ask the en banc court to revisit the Martinez claim? (ed. - yes - see below) 

I don't know the answer to these questions. (ed. - Well, the update gives answers to these questions, see below)  It would be a shame for a petitioner to get rehearing on an issue on which he lost, and then have the en banc court take away the relief on the issue on which he won.  (ed. - that would be a shame, but not applicable here) Particularly where the State did not even seek rehearing on that issue.  Is this a risk that a petitioner takes when he seeks en banc review?  I am really curious about this.

UPDATE/EDIT:  I did not have all of the information about the en banc rehearing when I wrote the post.  I guess that I should not have relied exclusively on the Ninth Circuit's en banc page which only linked to the habeas petitioner's en banc petition.  

It turns out that the State separately sought rehearing on the Martinez issue.  Although the order granting en banc doesn't specify, it would appear that both petitions were granted.  So the whole thing is getting reviewed.  I guess that answers most of the questions I had above.  One question does remain unanswered (does a petitioner face the risk of giving up a partial win when seeking en banc review on the parts on which he lost). But that only applies to the hypothetical situation where both sides don't seek rehearing en banc in a "split" decision.  I am still curious about that, but it's just not relevant here.

Habeas Corpus - En Banc Rehearing Granted

By JK

On February 25, 2013, the Ninth Circuit granted a habeas petitioner's request to rehear his case en banc in a case called Frost v. Van Boening.  

Over dissent, the Ninth Circuit had originally affirmed the denial of habeas relief based on petitioner's claim that the restrictions placed on his attorney's arguments during summation violated his right to counsel.  Here's how the dissenting judge characterized what happened:

"Ladies and Gentlemen of the jury, there are two separate and distinct reasons why you should find my client not guilty. Unfortunately, I may explain only one reason to you. (And a silent p.s.: I wish I could argue reasonable doubt to you, but I can't!)." This hypothetical summation mimics the extraordinary circumstances of Frost's closing argument, the legal equivalent of counsel having one hand tied behind his back. Due to a misunderstanding of state law, the trial judge forced Frost to "opt for one or the other" legitimate defense— arguing duress or putting the government to its burden of proof. This undisputed denial of the constitutional right to present proper argument on alternative defense theories created a Hobson's choice that violated Frost's Sixth Amendment Right to Counsel and his Fourteenth Amendment Due Process rights.

Should be a really fascinating en banc argument.

Habeas Corpus - Detrich En Banc Argument

By JK

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).

 

Habeas Corpus - En Banc Reheard

By JK

After my post last week about the en banc decision in Carrera, Alex sent me an e-mail in which he pointed out a couple of interesting things about the decision that I didn't mention.  First, the breakdown of judges was 10 to 1.  He opined that, with that type of breakdown, it’s hard to see why the case went en banc in the first place.  Especially because there was not really an important legal issue.  

Alex also pointed out that, over the past couple of years, the Ninth Circuit judges have been more closely split in their en banc decisions.  He mentioned big cases such as Doody v. Ryan, Pinholster v. Ayers (aka Cullen v. Pinholster), Richter v. Hickman (aka Harrington v. Richter).  Recognize any of those?  There was also Sessoms v. Runnels from this past summer.  Interestingly, all of them were habeas grants.  Of course, not all of the cases were (as Alex put it to me) bitterly split.  There was Lee v. Lampert from earlier this year that was actually a unanimous, 11-0 decision.* 

            *With a concurring opinion from CJ Kozinski.

All of these en banc decisions got me thinking.  Empirical research shows that the Ninth Circuit takes far more habeas cases en banc than I saw in the Second Circuit.  I think I could count on one hand the number of habeas cases that went en banc in the Second Circuit over the past 15 to 20 years.  I have mentioned six in the Ninth Circuit in the past three years.  And I think that’s true across the board for all types of cases.  The Ninth Circuit takes a lot more cases en banc generally than the Second Circuit.  See this link for more info on current en banc cases.  To note, there is one habeas case currently pending en banc, Detrich v. Ryan.

Why the disparity in en banc habeas cases?  It could simply be that the Ninth Circuit sees that many more habeas petitions, which results in many more likely candidates for en banc review.  That’s probably the most likely reason.  It’s also probably true that it is more likely for a death penalty case to go en banc and the Second Circuit does not see many habeas death penalty cases while the Ninth Circuit sees a lot of them.

But another contributing factor may be the different en banc processes in each court.  The Ninth Circuit’s process is actually different from not just the Second Circuitm but every other circuit.  In every circuit, I believe that the voting process is the same.  A judge must call for a vote of all of the active judges on whether to take the case en banc.  FRAP 35(f).  The rule itself does not indicate whether that judge has to be an active judge.  The case will go en banc if a majority of the active judges vote to have it go that way.  FRAP35(a).

Here’s where the Second and Ninth Circuits differ.  In the Second Circuit, the en banc panel will consist of all of the active judges on the court plus any senior judges who were on the original panel.  Currently, the Second Circuit has thirteen active judges.  And I believe it is at full capacity. 

But that’s not a workable process for the Ninth Circuit.  There are 28 active judges.  If all active judges plus the senior judges on the panel had to sit, it would be completely burdensome.  So the local rules of the Ninth Circuit limit the number of judges to sit on any en banc to 11.  It’s local rule 35-3, appropriately titled “Limited En Banc Court.”  The eleven are the chief judge and 10 of the active judges.*

*Actually, Congress passed a statute that says that any circuit with more than 15 active judges can institute this type of process.  I believe that the only other circuit that qualifies is the Fifth with 17 active judical positions.  But that court has not instituted this procedure.

I think that the limitation on the number of judges makes it easier for the court to vote a case en banc.  Outside of the CJ, there is less than a 50% chance that a judge who votes for an en banc hearing will have to sit on the panel.  I would think that this would have an impact on voting patterns – a yes vote would not automatically mean more work for the individual judge. 

Another interesting aspect is that the 10 judges beyond the CJ are selected at random.  This means that the judges who sat on the original panel may not end up sitting on the en banc panel.

That’s precisely what happened in Carrera.  None of the three judges on the original panel sat on the en banc panel.  Two were active and one was a senior judge.  I don’t see any rules that excludes the original panel from sitting en banc.  In fact, I went and looked at the en banc in Pinholster and two of the judges in the original panel sat in the en banc panel (one was CJK, who had to sit on the en banc).  It really is a random selection of the active judges.

The fact that the original panel members may not end up on the en banc panel may weigh in favor of more cases going en banc.  I think that the Second Circuit judges limit the number of en banc cases in order to prevent the proverbial stepping on each other toes.  They want to remain collegial and respectful to each other. Not sure if that’s the best motivation, but that seems to be one main reason why so few go en banc. 

However, in the Ninth, because the original panel may not show up on the en banc panel, that does provide a level of buffer.  The judges on the en banc panel could potentially reverse the original panel without having to face any members of the original panel.  Because there is no guarantee that the original panel will be there, a voting judge may not feel it necessary to be deferential.  It makes it easier to say that those judges got it wrong.

On the other hand, I guess it could be the opposite.  It isn’t really too fair to the members of the original panel that they don’t automatically get to sit on the en banc panel.  With this in mind, a voting judge may think it is more respectful to be deferential to the original panel because the original members may not be there to defend their positions.

In any event, whatever the reasons why, the Ninth Circuit takes a lot more cases en banc than the Second Circuit.  That is definitely true for habeas cases.

One last thing to note, the local rules do say that all 28 judges of the Ninth Circuit can rehear an en banc case en banc.  The literal en banc².  The idea of that is pretty awesome. 

Unfortunately, it has never happened.  But, in the words of the immortal Wooderson, it would be a lot cooler if it did.