The Third Circuit today granted en banc rehearing in Dennis v. Secretary, an important capital habeas case decided by the panel in February. The panel ruled for the state, reversing a district court grant of habeas relief.
Here was my write-up of the panel opinion:
In an important capital habeas corpus opinion, today the court reversed a district court’s grant of relief in a Pennsylvania case.
The unanimous panel reversed the district court’s grant of relief under Brady v. Maryland for the prosecution’s failure to disclose 3 pieces of exculpatory evidence. The panel held that it was not unreasonable for the state court to limit Brady to evidence that was admissible and evidence not obtainable by the defense through reasonable diligence. The court also ruled that it was reasonable to find immaterial an exculpatory police report that impeached a key prosecution eyewitness because that witness was cross-examined about her identification at trial. All three are important holdings on recurring issues, and I expect Dennis to make an impact.
Judge Fisher wrote the opinion, and he was joined by Smith and Chagares. Arguing counsel were Thomas Dolgenos for the Philadelphia DA and Stu Lev of the Philadelphia CHU for the death-row inmate. Lev was joined on the brief by five lawyers from Arnold & Porter plus a lawyer from the federal defender in Nevada.
Given the conservative panel and its aggressive reasoning, I’d bet the farm that the inmate will seek rehearing en banc.
Guess I get to keep the farm.