Two weeks ago, in Berryman v. Huffman, a divided panel of the Fifth Circuit ruled that a habeas petitioner, Brian Scott Berryman, was entitled to have his entire indictment dismissed. Berryman had been indicted on two counts. The state court determined that he had been denied his constitutional right to a jury trial as to one count but not the other, and it dismissed only the one count. The Fifth Circuit majority, undertaking to apply the deferential habeas standard set forth in the law known as AEDPA, ruled that “clearly established Federal law, as determined by the Supreme Court,” entitled Berryman to dismissal of the entire indictment.
In dissent, Judge Irma Carrillo Ramirez argues that the Supreme Court “has never considered whether dismissal of the entire indictment is the only remedy for a speedy trial violation as to only one count of a multi-count indictment.” Therefore, there was no “clearly established Federal law, as determined by the Supreme Court,” that entitled Berryman to dismissal of the entire indictment.
The panel split is interesting. Judge Dana Douglas, a Biden appointee, wrote the majority opinion, and Judge Jacques Wiener, who was appointed to the court by George H.W. Bush in 1990 (and who is 91 years old), joined it. Judge Ramirez, who served as a magistrate for more than 20 years, was also appointed by Biden.
The state of Mississippi has today filed a petition for rehearing en banc. Mississippi says the panel ruling “may be the most flawed grant of habeas relief in this Court’s history,” is “manifestly wrong” for the reasons that Judge Ramirez gives, “effects a miscarriage of justice,” and “risks profound negative ramifications for this Court’s AEDPA caselaw.”
Look for the Fifth Circuit to take this one en banc and adopt Ramirez’s position.