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Sunday, March 23, 2003
No. 01-10873 Nguyen v. United States

No. 02-5034 Phan v. United States


What am I missing? In these cases, petitioners complain that the appellate panel that heard their appeal contained a judge that was not appointed under Article III of the Constitution. The government’s brief agrees that the relevant statutory provisions do not allow such a designation, but disagrees that it raises some huge constitutional problem. First of all, the petitioners knew before oral argument (or in one case decision without oral argument) that there was a non-Article III judge on the panel, but they did not object; nor did they seek rehearing, and since when is the makeup of an appellate panel a constitutional right anyway? Although I only read the government’s brief, and may be prejudiced by that, I still predict that the Court will AFFIRM.


No. 02-311 Wiggins v. Smith


Here is a death penalty habeas corpus case. I predict the Court will AFFIRM. In this case, the petitioner’s counsel failed, at the sentencing phase of his murder trial, to present evidence about the severe mental and physical abuse suffered by petitioner, and the fact that he is borderline retarded. Instead, the defense argued that Wiggins may not have been the killer and so didn’t deserve the death penalty.


The question in these cases, I believe, is whether that was a reasonable strategy and if not, whether the result would have been different but for the ineffective assistance of counsel. Let’s also not forget that because this is a habeas corpus case, the petitioner must show that the lower court violated clearly established federal law. So my prediction is based on the odds. Even if this was ineffective assistance of counsel, I doubt that it meets the high bar required to obtain habeas corpus.