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The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent. But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004. After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely. The U.S. Court of Appeals for the 6th Circuit — and now the Supreme Court — ruled that filing deadlines are jurisdictional, which means they have no ability to give Bowles a break, even though he filed within the deadline the judge gave him. “This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr. In dissent, Justice David Souter was blunt and unforgiving. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer. “This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.” The Court has traditionally viewed matters like deadlines as jurisdictional, and therefore beyond its reach to change. But in recent years, as Souter wrote in his dissent, the Court has “tried to clean up our language” to not overuse the term “jurisdictional” in cases including some that involved deadlines. Souter said it was “puzzling” for the Court to return now to a broader interpretation of the term. Thomas in his majority refers to those recent rulings, but says “none of them calls into question” the long-standing view that filing deadlines are jurisdictional. The majority also partly overturned a 1962 decision that allowed exceptions to jurisdictional rules in “unique circumstances” such as an excusable error by a lawyer. Souter protested, “We have the authority to recognize an equitable exception to the 14-day limit, and we should do that here, as it certainly seems reasonable to rely on an order from a federal judge.” Cleveland lawyer Paul Mancino Jr., who represents Bowles, said Thursday that Souter’s dissent “says it all,” adding that the Court “went for form over substance.” Bowles, who is in his 10th year of a 15-year-to-life sentence, no longer has any avenue for habeas appeal. He may come up for parole next year. Mancino, who tried the case in 1999, said “the way the judge made it out, I didn’t bother to check” the deadline that Nugent gave him for filing the habeas appeal. And why did the judge give him the wrong deadline? “I asked him once,” Mancino says. “I think he said he was allowed to add three-day extensions in other kinds of cases, so he did it here.”
Tony Mauro can be contacted at [email protected].

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