Tuesday, November 28, 2006

New cert petition (pun intended)

Michael New, he of the refusal to wear the UN blue beret fame, has filed a cert petition at the Supreme Court. No. 06-691. The petition seeks review of the D.C. Circuit's denial of his collateral attack on his court-martial conviction. The questions presented are prepared in Garnerian deep issue style and raise four distinct issues. The one with the most widespread significance is issue 2:

2. Should this Court reconsider and modify, or even overrule, the “full and fair consideration” standard of review governing collateral attacks on court-martial convictions established in Burns v. Wilson, 346 U.S. 137 (1953)?

This issue could have enormous impact on Article III courts' collateral review of court-martial convictions. It could be especially significant in capital cases.

The National Institute of Military Justice (NIMJ) has weighed in with an amicus brief in support of certiorari, available here:

http://www.nimj.org/documents/FinalAmicusBriefreCert.pdf [Hey, No Man -- how do I make that a hypertext link?]

"[R]esearch on the impact of amicus briefs in the Supreme Court has indicated that the presence of amicus briefs increases the likelihood of a grant of certiorari . . . ." Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc'y Rev. 807, 807 (2004).

This cert petition is one to watch. We will have to see if it shows up on SCOTUSblog's list of cert petitions with a reasonable chance of being granted.

CAAF's opinion in the case is United States v. New, 55 M.J. 95 (C.A.A.F.), cert. denied, 534 U.S. 955 (2001). The D.C. Circuit's opinion that New asks the Supreme Court to review is United States ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006).

--Dwight Sullivan

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