This is clearly judicial activism by these conservative Judges. Instead of doing their duties; they're are finding ways not to handle justice.
Lee v. Lambert, No. 09-35276 (7-6-10) (O'Scannlain joined by Wolle, D.J.; concurrence by N. Smith). AEDPA does not have an innocence exception to its statute of limitations. That was the decision by the 9th, where the panel reversed and remanded a granting of relief by a district court. The petitioner had been convicted of various counts of child molestation in Oregon, but his challenge, with a compelling innocence claim, was outside AEDPA's statute. The 9th chose this case to quash any assumption that there was an exception for innocence, stating that it was basically a waste of time and judicial resources and that district courts are deciding cases differently (see pp. 9533 & 9534). The decision by the 9th boils down to the plain language of the statute and that Congress was aware of such a possible judicial created exception, but did not fashion such an exception in the final legislation. The decision by the 9th creates a circuit conflict with the 1st, 5th, 7th, 8th, and now 9th, aligned against the 6th. N. Smith concurred, focusing on the lack of AEDPA deference given to the state courts by the district court under AEDPA.
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