When I saw that Ninth Circuit judge William Fletcher had issued a habeas ruling today (in Ford v. Peery) over the partial dissent of Judge Ryan Nelson, I thought uh oh, here we go again. But it turns out that Fletcher granted rehearing of his previous panel decision that had awarded habeas relief, reversed course, and ended up denying habeas relief.
While criticizing “much of [Fletcher’s] convoluted reasoning,” Nelson concurs in the denial of habeas relief. He dissents on the threshold matter whether the habeas petitioner should have been given permission to appeal the district court’s adverse judgment (i.e., a “certificate of appealability”) in the first place.
As Nelson points out, Fletcher deserves credit for having the “healthy dose of judicial humility” needed “to publicly recognize and correct [his] error.” But Nelson finds Fletcher’s reversal “only half noble,” as he faults him for conducting a “make-believe, hypothetical de novo review” rather than applying the deference that the federal statute known as AEDPA requires.