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The U.S. Supreme Court feasted on another helping of certiorari petitions from the 9th U.S. Circuit Court of Appeals on Monday, loading its plate with two more cases that should make late-term headlines when the decisions are released. But the justices denied cert in Silveira v. Lockyer, a ruling by Judge Stephen Reinhardt holding that the Constitution doesn’t give individuals the right to bear arms. In doing so, the high court declined — once again — to wade into a debate on the meaning of the Second Amendment. “The case never really had a genuine prospect of being granted,” said Thomas Goldstein, a close follower of the Supreme Court at Washington, D.C.’s Goldstein & Howe. “The members of the court have no idea what each other thinks about the Second Amendment. They’re going to have to back into [the issue].” Monday’s two cert grants are Schriro v. Summerlin, 03-526, and United States v. Alvarez-Machain, 03-485. The latter deals with a Mexican doctor kidnapped abroad by the U.S. government and brought here to answer for his alleged role in the death of an agent with the Drug Enforcement Agency. The former deals with the retroactivity of Ring v. Arizona and could affect hundreds of death row inmates. Ring held that a jury, not a judge, must decide the factors leading to a criminal punishment — including the death penalty. Goldstein said he expected both cert grants, particularly Summerlin. “If a circuit creates a circuit split, en banc, in a habeas case and rules against the state, it’s just automatic that the court is going to take it,” he said. In fact, both grants came from cases the 9th Circuit decided en banc. The Supreme Court affirmed two of the circuit’s en banc rulings last term. The 9th Circuit’s record at the high court has improved in recent years, falling more in line with its sister circuits. But the nation’s largest circuit is increasingly dominating the high court’s calendar. So far, 20 of the 58 cert grants in cases originating in federal appeals courts this term have come from the 9th Circuit. That’s more than a third of the docket, similar to last year’s portion. According to figures provided by 9th Circuit expert Arthur Hellman, the number of cert petitions filed in 2002 from the 5th Circuit rivaled the number filed from the 9th. But so far this year, the Supreme Court has granted only seven 5th Circuit petitions, compared with the 9th Circuit’s 20. Hellman, a law professor at the University of Pittsburgh, has also noticed another trend. “What’s striking when you look at the list is that they’re overwhelmingly government petitions,” he said. “There are very few that are filed by private parties.” Alvarez-Machain and Summerlin join Elk Grove Unified School District v. Newdow — the Pledge of Allegiance case — on a list of high-profile cases originating in the 9th Circuit. On Monday, the Supreme Court granted Sacramento atheist Michael Newdow the right to argue the case himself. Newdow said he isn’t nervous — yet. “I know this stuff pretty well. I’ve been arguing it my whole life,” he said Monday. Of the three, Summerlin may be the closest call, observers said. The 9th Circuit decided to make Ring retroactive, giving hope to more than a hundred death row inmates seeking a respite. But the case turns on a procedural question: whether Ring announced a substantive change or was merely procedural. The 9th Circuit decided the former, and Judge Reinhardt wrote separately to point out that the seemingly arcane question was actually a matter of life or death. “To put it differently, may the state now deliberately execute persons knowing that their death sentences were arrived at in a manner that violated their constitutional rights?” Reinhardt wrote earlier this year. “Is it possible that prisoners will now be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late — on a wholly arbitrary date, rather than when it should have?”

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