Back in October, I called attention to the state of Mississippi’s petition for rehearing en banc of a divided Fifth Circuit panel’s grant of habeas relief (in Berryman v. Huffman). Mississippi argued in its petition that 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 Irma Carrillo Ramirez (a Biden appointee) gave in her dissent, “effects a miscarriage of justice,” and “risks profound negative ramifications for this Court’s AEDPA caselaw.”
I’m pleased to report that the Fifth Circuit panel reversed course yesterday, withdrew its previous ruling, and summarily affirmed the district court’s denial of habeas relief. And when I say summarily, I mean it. The entire per curiam opinion reads: “AFFIRMED. See 5th Cir. R. 47.6.” (The cited Fifth Circuit rule allows a panel to affirm without opinion “when the court determines that an opinion would have no precedential value and that … no reversible error of law appears.”)
Judge Dana Douglas, the Biden appointee who wrote the initial majority opinion, turned her opinion into a dissent. My only regret about the summary affirmance is that Douglas’s dissent goes unanswered within the four corners of yesterday’s ruling. (For now at least, Judge Ramirez’s rebuttal of Douglas’s original opinion remains available.)
Special credit to Judge Jacques Wiener (a George H.W. Bush appointee) for having the humility to recognize his error in joining Douglas in October and to reverse course.