The world of Fourth Circuit en banc review has provided much fodder for my postings on this blog (See, e.g., here, here, here, here). On Monday, the Court released another blog-worthy en banc opinion when it affirmed per curiam the district court’s grant of habeas relief to a criminal defendant who had been sentenced to death for killing a police officer during a traffic stop. What makes the opinion notable is that the affirmance came in a most unusual way: an equally divided full court.
In Bryant v. Stephan, (panel decision here, en banc ruling here), the defendant had sought habeas relief in the District of South Carolina after he was sentenced to death in the state courts of South Carolina and the South Carolina appellate courts affirmed his conviction and sentence. The federal district court vacated his death sentence, concluding that the state post-conviction court “(1) unreasonably determined that a juror who was hearing impaired was competent to sit on the jury and unreasonably applied clearly established federal law in so concluding; and (2) unreasonably concluded that [defendant’s] state trial counsel was not ineffective in allowing the hearing-impaired juror to sit on the jury.”
The State appealed to the Fourth Circuit, and a panel majority of Judge Niemeyer and Judge Wynn reversed the lower court’s decision, holding that the district court had not used the proper standard in overruling the state post-conviction court’s affirmance of the death sentence. The panel remanded with instructions that the district court deny with prejudice the defendants application for habeas relief. Judge Thacker dissented.
The defendant petitioned for rehearing en banc, and it was granted (one of seven cases the full Court has taken for review in the last 12 months; by contrast, there were only 10 en banc cases heard by the Court between 2004-2010). However, because of Judge Keenan’s move to senior status, and Judge Heytens not yet confirmed and seated on the Court, the full Court that heard the case had only 14 judges, as opposed to the usual 15 for an en banc review.
The result was an equally divided court, with seven siding with the district court and Judge Thacker’s dissent, and seven siding with the panel majority. In such a situation, the lower court’s decision is affirmed. And in this case, the published ruling of the en banc Court explicitly vacated the panel’s decision.
Interestingly, this was the second time in the last six months that the Fourth Circuit had an equally divided en banc Court. In May, the Court split six-six in United States v. Loughry, after three active judges did not participate in the en banc panel. Loughry also involved a juror–a high profile case in which a juror’s twitter usage before and during trial raised questions about whether the defendant (a former West Virginia Supreme Court Justice) had received a fair trial. (Panel decision here, en banc decision here). In that case, a split Fourth Circuit panel affirmed the district court, and, as in Bryant, the subsequent equally divided en banc Court also meant that the district court was affirmed.
So now for the questions. What is the precedential value of a case in a situation like this? As Beth has previously noted on the blog, in North Carolina state courts an equally divided Supreme Court expressly means that the lower court decision is affirmed, but without any precedential value. (See here). In both recent instances of the equally divided Fourth Circuit, the lower court was affirmed through a published per curiam opinion. In Monday’s case, the opinion explicitly stated that the panel opinion (which had reversed the lower court) was vacated. So what is the precedential value of the trial court’s opinion in that case? Is there any? After all, conventionally a federal district court opinion is certainly persuasive, but never precedential. (This also brings to mind the situation we currently face in North Carolina when the direct appeals from the North Carolina Business Court to the Supreme Court of North Carolina result in per curiam affirmances attaching the NCBC’s opinion. Is that Business Court opinion now the law of the state? Kip has addressed that here.)
In May’s equal en banc division, there was no indication in the per curiam published opinion as to what happened to the panel decision (which had affirmed the lower court). The opinion simply stated, ” The judgment of the district court is affirmed by an equally divided court.” Is that panel decision arguably binding law? Or does the mere grant of en banc review effectively vacate the panel decision even though the Court did not explicitly say so in its opinion? And what then, is the authority of the district court’s opinion, which was affirmed by the panel and then affirmed per curiam, but by an equally divided court? The Court’s use of the term “judgment” in identifying what was being affirmed may suggests that the reasoning that the district court applied to get to that judgment is not being explicitly affirmed. Finally, is there a difference with respect to precedential value when the panel had affirmed versus when the panel had reversed?
All of these questions might be academic and short-lived, as the Loughry case is awaiting decision on a petition for certiorari at the Supreme Court. And, given that Bryant is a death penalty habeas case, it may also find its way up to the Supreme Court.
Feel free to weigh in with your thoughts in the comments!