This is probably the most important cert petition filed this term and ranks close to the top of all cert petitions ever filed.
The Second Amendment is meaningless if the government can prosecute you but the judge won’t allow you to claim you acted in self-defense.
The question presented is: Whether the failure to give a self-defense jury instruction contradicts, or is an unreasonable application of, clearly established federal law regarding a defendant’s due process and jury trial rights when self-defense was the crux of the defendant’s case and the defendant introduced evidence to support the defense?
The cert petition was filed on March 16th.
The warden had filed a waiver to respond on April 6th.
If a waiver to respond is filed and no justice requests a response then the cert petition is dead on arrival.
It will be put on the dead list and appear as denied on the Orders List published after the SCOTUS conference where the justices vote on which cert petitions to grant, deny or postpone to a future conference.
Fortunately, a justice asked for a response on April 12th.
We do not know who the justice was who requested the response. That is one of the many things SCOTUS won’t tell us.
As difficult as it is to believe, the justices do not think that it is their job to correct mistakes of law or fact made by the lower courts. The justices view their primary job as to resolve Federal circuit splits and splits created on Federal questions of law by state courts of last resort.
The cert petition argues that there are circuit splits.
That’s a good thing given that most cert petitions don’t argue that there is a split for the justices to resolve, and the justices very rarely grant a cert petition for any other reason.
The Warden, unsurprisingly, argues in his brief in opposition that there is no circuit split so the petition should be denied.
Unfortunately, even if there is not only a circuit split, but multiple, intractable circuit splits, the justices are more than happy to leave the splits unresolved by denying the petition.
If this cert petition is denied then it will not be because of a poorly written cert petition.
I have long since lost track of the number of cert petitions I have read these past ten years or so. Nearly all of them have been poorly written documents that don’t even comply with SCOTUS Rule 10 governing the granting of cert petitions.
This is not one of those petitions. Keahey’s cert petition is well written.
Of course, a well-written cert petition that complies with SCOTUS Rule 10 does not mean that the petition will be granted.
We will have to wait for the Orders List to be issued from the long conference of 9/27. The Orders List will be issued the following Monday, October 4th.
That’s all for this article.
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