CRATER v. GALAZA
The Ninth Circuit Court of Appeals today released an order in CRATER v. GALAZA, No. 05-17027, a habeas corpus appeal. The panel consisted of Melvin Brunetti, Diarmuid F. O’Scannlain, and Stephen S. Trott, Circuit Judges.
The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petitions for rehearing and rehearing en banc are denied. 15995 . . .
REINHARDT, Circuit Judge, with whom Circuit Judges PREGERSON, GOULD, PAEZ, and BERZON join, dissenting from the denial of rehearing en banc:
I would hold that section 104 of the Antiterrorism and Effective Death Penalty Act (”AEDPA”), Pub. L. No. 104132, 110 Stat. 1214 (codified in relevant part at 28 U.S.C. ยง 2254(d)(1)), violates the separation of powers doctrine and is unconstitutional. Section 2254(d)(1) constitutes a severe congressional incursion on the federal “judicial power,” which Article III of the Constitution vests wholly and exclusively in the federal courts. It does so in two principal ways: first, by prohibiting the federal courts from applying the ordinary principles of stare decisis in deciding habeas cases involving prisoners held in state custody, thereby interfering with the federal courts’ normal adjudicatory process; and second, by requiring federal courts to give effect to incorrect state rulings that, in the federal courts’ independent judgment, violate the Constitution. Such a congressional breach of the federal judiciary’s integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court. For this reason, and because I believe that this is the type of case an en banc court should hear, I dissent from. . .