A Third Circuit panel this week granted panel rehearing—for a second time—in Workman v. Superintendent, a case in which the panel originally granted relief for ineffective assistance of counsel, but did so by presuming that counsel’s error prejudiced the defendant instead of requiring a prejudice showing (in habeas-speak, by applying Cronic not Strickland). I explained matters in this post after the second opinion. As I noted there, the second opinion was perplexing in light of the first rehearing petition, so the panel’s decision to grant rehearing again is not as surprising as it might seem.
[I’ll disclose again that I’ve done some minor consulting for counsel for the petitioner.]
There may be an impulse to view panel-rehearing grants in a negative light, but, as I’ve written here before, that’s not how I see them. I believe the panel rehearing serves a valuable function and I applaud the court’s willingness to take a second (or third!) look where needed to be confident of getting it right.