wfulaw wrote:

Well, I'm back.  I have followed the case for many years and have posted on other boards with the same unsername.  I have read the court's recent opinion.  Here are my thoughts on the request for rehearing en banc

First, here is a part of Rule 35 of the Federal Rules of Appellate Procedure, which govern when an en banc hearing might be appropriate:
.(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

This is out of 10th Circuit local rules:
En banc consideration is often requested but seldom granted.  Ordinarily the court will grant en banc review only when necessary to secure or maintain uniformity of the circuit’s decisions, to comply with a U.S. Supreme Court ruling in conflict, or to consider an issue of exceptional importance
I don't think Mac's case will warrant reconsideration under these standards.  There is no conflict with Supreme Court case law and this case does not involve important legal issues.  The court's opinion was mostly a conclusion that Mac's slant on the facts is incorrect.

As for the timeliness of the en banc request, 2255 motions are a hybrid of civil and criminal processes.  The motion 2255 process has its own set of procedrual rules that say both Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure may apply.  Generally, the civil rules apply to timeliness in 2255 motions.  If filed on the 45th day, then it is timely.  However, unlikely to be granted, especially consideration it seems to be nothing but rambling non-sense that questions no "important" issue

 
 

 
Hi Wflaw glad you came back to the boards!  Thanks for the explanation!  Do we think inmate  is going to file to be heard before the USSC?

If Brendan Dassey’s case wasn’t even heard by the USSC
There is no way they are going to hear MacMurderer....
That may sound like an over simplification.  But really I think it says it all.

The en banc request read to me as if they were telling court that they didn't consider the exculpatory evidence, which I thought was pretty ballsy given that the decision did indeed review his evidentiary claims, and discussed that just because you say something is exculpatory - no matter what adjectives you use to try and make it more so - doesn't make it exculpatory. 

Welcome to the board WFULAW - I recall you from a prior board.  Oh gosh, it just occurred to me what WFULAW could stand for other than Wake Forrest University Law.

I do believe that a habeas corpus petition is considered a civil matter under 28 USC 2442.  Therefore, I do think Mac had 45 days to request the hearing en banc.  I don't think he will be granted the en banc hearing, but I believe his filing is timely.

kma367 wrote:

Denied:

"The petition for rehearing en banc was circulated to the full court.  No judge requested a poll under Fed. R. App. P. 35.  The court denies the petition for rehearing en banc."

S/Clerk

I am betting that they will now try to request that the U.S. Supreme Court hear the case.  The good thing about that is that the U.S.S.C. dockets are now on line, including appendices.

kma367
 

Am I reading this correctly; the Petition for Rehearing was denied already?