One issue in Coleman v. Dretke (a per curiam denial of rehearing en banc on a nine-to-seven vote) is whether appellate judges are allowed to notice of the world wide web....
Of greater interest to those attempting to understand the AEDPA’s requirement that a rule have been clearly established before it can be the basis for habeas relief, the majority opinion rejects an argument that, because courts have found the applicable law not clearly established for purposes of qualified immunity, it is not clearly established for AEDPA purposes.
The case is a reversal of a denial of habeas corpus where the issue was a due process claim involving release conditioned upon sex offender registration and therapy where the defendant had never been convicted of a sex crime. Judge Reavley had written the prior opinion, which drew no dissent. Judge Edith Jones, joined by Jolly, Smith, Barksdale, Garza, DeMoss, and Clement dissented from the denial of en banc rehearing. The majority and dissent’s intense disagreement ranges from elemental facts—whether Coleman had stipulated to sex offender status on release—to standard of review and the nature of the controlling law.
The majority and the dissent also take issue about whether a Fifth Circuit panel opinion was entitled to rely on a state’s website describing its sex offender treatment program in ruling whether imposition of such treatment without a prior hearing was a due process violation—thus the judicial notice issue alluded to above. Perversely, the dissent disagrees with the majority’s use of the website, yet itself relies on the state website to argue that a part of Coleman’s claim should fail—the state attempted at rehearing to argue that it had dropped the requirement that Coleman register as a sex offender, and the dissent notes that as of April 28th, he had not registered on the state website.
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