Yesterday the court issued an amended opinion in Mathias v. Superintendent and an order explaining what changed. The changes themselves, which the court described as “minor,” are of interest mainly to habeas nerds like me (the court removed language that applied double deference to habeas review of IAC prejudice). But two practice points are worth noting.
First, the court explained in footnote 4 of the amended opinion that the language it was removing from its original opinion involved a disputed legal point “not specifically briefed by the parties in this case.” This happens, and alert counsel can use this case when it does.
Second, the court explained that the changes were made to address points raised by Mathias in his rehearing petition. Counsel for Mathias, Maria Pulzetti of the Federal Community Defender in Philadelphia (and a former colleague of mine), is a first-rate appellate lawyer, and it made a difference here. Many lawyers arguing for rehearing would just assert that the panel got it wrong, cite the relevant Supreme Court case, and call it a day. Many more would look no further once they found prior Third Circuit rulings that arguably conflicted. But Pulzetti evidently kept digging, because she figured out that the circuits were split on this issue. The court referred to this circuit split and cited the case Mathias cited in the amended opinion. Although rehearing was denied, Pulzetti’s diligence improved the opinion and benefited the Court.