The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning the Supreme Court granted certiorari in Brown v. Davenport, in which Michigan sought review of the U.S. Court of Appeals for the Sixth Circuit's decision to grant a writ of habeas corpus to Ervine Lee Davenport. Grants in cases like this are often an indication that a majority of the Court plans to reverse, and that is particularly so when the Court grants certiorari to a habeas decision from the Sixth Circuit.
A divided panel granted Davenport's habeas petition because he was visibly (and unconstitutionally) shackled during his trial for first-degree murder, rejecting the state's arguments that the shackling was not prejudicial and a habeas grant was not authorized under AEDPA. Michigan sought en banc review, and the court split 8-7, with two judges (Sutton and Kethledge) writing that the panel decision was wrong, but not en banc worthy. In other words, a clear majority of the Sixth Circuit concluded the panel was wrong as a matter of law, but only seven sought en banc review.
As I have noted before (most recently last week), the Roberts Court has reversed the Sixth Circuit in habeas cases with some frequency--often unanimously--and with most of those reversals coming in cases (like this one) in which the Sixth Circuit granted the petition. Given this history, and the details of this case, do not be surprised if Brown v. Davenport produces another Sixth Circuit reversal.