Thursday, August 18, 2005
Retroactivity: Split Confirmed
The Ninth Circuit has denied rehearing en banc, 2005 WL 1906932 (Aug. 11, 2005), of the 2-1 panel holding in Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), that Crawford applies retroactively in a habeas case; see my prior post, Retroactivity:Issue Joined? There were nine dissenters to the denial of rehearing. This does not count Senior Judge Wallace, the panel dissenter, who recommended granting the rehearing but was not eligible to vote in the full court. There seems little doubt now that the Supreme Court will resolve the issue, because the Ninth Circuit stands in conflict with four others.