Your view as to whether a COA depends on the issue being settled nationally as opposed to within the circuit is a possible one, but not the only one. The Court of Appeals established the contrary rule for the Eleventh Circuit, and that will remain the rule until it or the Supreme Court decides otherwise. Far from a “gratuitous shot,” that is what a Court of Appeals is supposed to do, establish a precedent for the District Courts to observe in the future.

Whatever the ultimate outcome of this case, the cert grant is, contrary to Kent’s view, total vindication of the district judge’s decision to grant the COA. A COA should be granted if judges could reasonably differ as to the outcome. The fact that there was a clear circuit split at the time the judge granted the COA should have been more than enough to satisfy the COA standard and should have led the 11th Circuit to avoid taking a gratuitous shot at the district judge. The cert grant is really icing on the cake.

Regarding the district court staying its proceedings while the Supreme Court considers a certiorari petition from another circuit, the language is stronger: abuse of discretion. I think it is warranted, though. If a petition should be denied or dismissed under circuit precedent, there is no reason for a district court to hold it up. The inmate is not going to be executed the next day. In the time it takes to schedule and carry out an execution, the reviewing courts can reconsider their precedent and issue their own stay, if that is what they are going to do.

Too many federal judges, it seems, are completely unaware that every day a stay remains in effect is a fresh denial of justice. The Eleventh Circuit opinion has a very good quote from an earlier opinion. “Each delay, for its span, is a commutation of a death sentence to one of imprisonment.” Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983). I would like to see this recognized more often.

I do not see the grant of certiorari as being a vindication of the district judge’s actions or a rebuke of the panel. In a properly functioning judiciary, district courts and court of appeals panels follow circuit precedents, the court of appeals en banc reconsiders them as necessary, and the Supreme Court resolves splits among the circuits. The fact that the Supreme Court is going to resolve a circuit split does not justify a district court in failing to promptly dispose of a case governed by on-point circuit precedent.

Here, via Findlaw, is the contrary Sixth Circuit opinion.

In affirming, the panel really went out of its way to blast the district judge for: (1) waiting on his decision while a cert petition from the 6th Circuit case presenting the same issue was pending; and (2) granting a Certificate of Appealability. Perhaps it’s just me, but doesn’t it seem entirely reasonable for a judge to wait and see whether the Supreme Court takes a case presenting the exact same issue as the the case before him, particularly when there’s a circuit split on that issue? And doesn’t it seem entirely reasonable for a district judge to grant a COA on an issue, even though his circuit has already ruled on that issue, when a circuit split has since developed?

If I were the district judge, I’d find it really hard to resist sending a copy of the order granting cert to the judges on the 11th Circuit panel.