Comments on: Tomorrow’s Argument in Hill v. McDonough http://www.scotusblog.com/wp/tomorrow%e2%80%99s-argument-in-hill-v-mcdonough/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Kent Scheidegger http://www.scotusblog.com/wp/tomorrow%e2%80%99s-argument-in-hill-v-mcdonough/comment-page-1/#comment-9458 Kent Scheidegger Tue, 25 Apr 2006 22:55:18 +0000 http://www.scotusblog.com/wp/uncategorized/tomorrow%e2%80%99s-argument-in-hill-v-mcdonough/#comment-9458 In <i>Nelson</i> v. <i>Campbell</i>, 541 U.S. 637 (2004), the Court emphasized the narrowness of its holding and declared that it was not opening the floodgates. Today, standing waist-deep in dirty floodwater, it is time to reconsider. The claim that only one specific method is being enjoined and that the state could quickly carry out its judgment by switching was accepted by the Court in <i>Nelson</i>. That judgment has not been carried out to this day, as explained in the amicus brief of Alabama, et al. As explained in the <a href="http://www.cjlf.org/briefs/Hill.pdf" rel="nofollow">CJLF amicus brief</a>, I think petitioner has a good argument that the successive petition rule should not bar a habeas petition in this case, where the state switched methods after the first federal habeas case was over. In this I part company with the other amici supporting the state. The Court need not extend <i>Stewart</i> v. <i>Martinez-Villareal</i>, 523 U.S. 637 (1998) very far to avoid such a Catch-22. On the other hand, the statute of limitation bar is solid. Florida changed its method in early 2000, and Hill waited until late 2005 to challenge it. That is exactly what Congress intended to prohibit when it added a statute of limitations to habeas law. The Court refused to allow the Civil Rights Act to be used to evade habeas limits in <i>Gomez</i> v. <i>U.S. District Court (Harris)</i>, 503 U.S. 653 (1992), and it should refuse again in this case. In Nelson v. Campbell, 541 U.S. 637 (2004), the Court emphasized the narrowness of its holding and declared that it was not opening the floodgates. Today, standing waist-deep in dirty floodwater, it is time to reconsider. The claim that only one specific method is being enjoined and that the state could quickly carry out its judgment by switching was accepted by the Court in Nelson. That judgment has not been carried out to this day, as explained in the amicus brief of Alabama, et al.

As explained in the CJLF amicus brief, I think petitioner has a good argument that the successive petition rule should not bar a habeas petition in this case, where the state switched methods after the first federal habeas case was over. In this I part company with the other amici supporting the state. The Court need not extend Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) very far to avoid such a Catch-22.

On the other hand, the statute of limitation bar is solid. Florida changed its method in early 2000, and Hill waited until late 2005 to challenge it. That is exactly what Congress intended to prohibit when it added a statute of limitations to habeas law. The Court refused to allow the Civil Rights Act to be used to evade habeas limits in Gomez v. U.S. District Court (Harris), 503 U.S. 653 (1992), and it should refuse again in this case.

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