Bench Memos

Law & the Courts

Justice Delayed

I’m inured to the massive delays in our criminal-justice system, especially in death-penalty cases, but every now and then a case still manages to surprise me. So it is with today’s Ninth Circuit ruling in Bolin v. Baker.

Gregory Bolin was sentenced to death in 1996 for brutally raping, torturing, and murdering a video-store clerk in Las Vegas in 1995. His crimes came just 15 days after a Colorado parole board released him from imprisonment for two rapes that he committed in 1975.

Bolin filed a habeas petition in Nevada state court in 1999. The state court took six years to deny Bolin’s petition, and the Nevada supreme court affirmed the denial in 2007.

Bolin then filed a habeas petition in federal court in 2007. The petition raised 55 claims, including 29 which Bolin had, in whole or in part, failed to exhaust in state court. At some point before 2014 (I can’t tell when), the district court ruled that Bolin either had to abandon his unexhausted claims or have his entire habeas petition dismissed. He abandoned his unexhausted claims, and in 2015 the district court denied habeas relief on his exhausted claims.

Today, some six years after the district court denied habeas relief to Bolin, the Ninth Circuit panel ruled that a Ninth Circuit decision in 2014 means that the district court applied the wrong standard when it first ruled (pre-2014) that Bolin either had to abandon his unexhausted claims or have his petition dismissed. So the Ninth Circuit has remanded the matter to the district court to apply the correct standard. If I’m understanding things correctly, the district court might then hold its case in abeyance while Bolin goes back to state court to pursue one or more of his unexhausted claims. So we might easily be looking at another decade of litigation.

From the face of today’s opinion, you might think that the Ninth Circuit acted expeditiously: the case was submitted and argued just five weeks ago. Why it took five or six years for the Ninth Circuit to have the case set for argument is a mystery to me.

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