Comments on: Padilla urges Court to wait on transfer

By: rodgerlodger

rodgerlodger — Mon, 02 Jan 2006 15:30:30 +0000

I’ll just emphasize one point I made above: Padilla could have filed a second concurrent petition after his transfer. In civil procedure one strategem smart lawyers use is the filing of a “protective action”. Federal district court diversity jurisdiction can be unpredictable, so often one wisely files the same claim in state court, just in case the federal case is dismissed for want of jurisdiction after the statute of limitations runs. Just because Padilla is a highly sexy constitutional case doesn’t mean one should abandon usual mundane lawyerly prudence. And that four justices dissented in Padilla’s favor just proves my point that habeas is complex, not that it was reasonable to assume the petition was in the right district.

By: Spencer Ervin

Spencer Ervin — Mon, 02 Jan 2006 14:28:52 +0000

I bow to the habeas corpus expertise of Rodegerlodger, BUT, four memmbers of the Supreme Court read a different hornbook and said that there was jurisdiction. If cert. had been denied then, Padilla would be free; and if cert. had been denied after a loss in the fourth circuit two years ago, Padilla would probably be in a worse position than he is in today.

By: rodgerlodger

rodgerlodger — Mon, 02 Jan 2006 13:46:43 +0000

Spencer: habeas corpus, the most complex of all laws (excepting tax), had one hornbook rule: you petition against the custodian where the custodian is. Why fight that rule because you think one circuit is more favorable on the merits than the other? In fact, why not petition in both districts and let respondent take a position on jurisdiction? No, I’m not being wise after the event; I’m being lawyerlike.

By: Spencer Ervin

Spencer Ervin — Mon, 02 Jan 2006 13:11:58 +0000

Concerning Padilla’s “mistake” in originally suing in SDNY, it is easly to be wise after the event. At that time it was by no means certain that the Supreme Court would take the Padilla case. In the meantime, it appeared likely that the second circuit would be more sympathetic than the fourth, as, indeed, has been demonstrated.

Now Padilla’s lawyers have the difficult job of trying to keep their client out of the clutches of the military forever. It made be a hard sell, but they have nothing to lose in trying.

By: Richard

Richard — Sun, 01 Jan 2006 22:33:16 +0000

Padilla’s attorneys would have a more persuasive argument if they recognized the possibility that transferring Padilla to the custody of the DOJ might moot their habeus case.

It appears that three 4th Circuit Judges think that the transfer might have that effect as does the Solicitor General. Under the circumstances, I would emphasize the “manipulation” theme more than Padilla’s attorneys appear to have done.

By: rodgerlodger

rodgerlodger — Sun, 01 Jan 2006 01:13:41 +0000

I really have to wonder about the advice Padilla is getting.
Sup Ct case #1: his attorney finds out he has been moved from the district she filed her habeas petition in. Instead of withdrawing it and refiling in the correct district, she litigates jurisdiction (as well as merits) up to the Sup Ct, and loses on jurisdiction. As Padilla was the only citizen arrested in America of the 3 cases the Ct decided that day, who knows but that he could’ve won on the merits a year or so ago. Instead, he had to start all over again years after the initial filing.
Sup Ct case #2: Padilla’s attorney says he’d like to be released into civilian criminal justice custody, but not for a few weeks — until the Sup Ct possibly decides whether to grant cert. Why wait? Well, the story goes his committment to DoD custody issue may not be moot. I say is this really a reason to stay locked up in DoD custody? The story goes he might be reimprisoned there should he win his criminal case, but how likely is that? Could the lawyer be litigating on behalf of others now or in the future in Padilla’s situation? And how sure is it that Padilla’s case isn’t moot even after cert (i.e., should he be released from Dod custody, as his lawyer now asks, after cert granting.) I wonder what Padilla can make of all this. Admittedly the issues are complex, subtle, and unprecedented, but is there a good reason for voluntarily dragging out his military custody and not get cracking on trying to beat the indictment?