Sixth Circuit going en banc in Montgomery

In a post available here, I noted some prudential considerations that might lead active members of the Sixth Circuit to let the Montgomery decision stand (background here), even though the bold and opaque ruling likely does not represent the views of a majority of active judges on the court. But Howard Bashman at How Appealing has the official word and details here that the Sixth Circuit issued an order “granting the request of a member of the Court for rehearing of this case en banc.” Consequently, the “previous decision and judgment of this Court is vacated, the mandate is stayed. Supplemental briefs are due from both sides on July 28. As I suggested here right after Montgomery was handed down, the decision to take Montgomery en banc is not surprising given the peculiar factual setting for a big Blakely ruling and the not wholly representative judges on the panel.

As noted in my earlier post, by granting en banc review and vacating the original panel decision, sentencing rules within the Sixth Circuit are returned to uncertainly (and potential disparity from district to district) until a decision is rendered by the en banc court. In addition, because of the peculiarities of the Montgomery case as a setting for addressing Blakely, I think courts and litigants in the Sixth Circuit might have occasion to wonder whether the en banc court will (or even should) address Blakely at all when the issue might be altogether avoided.

In short, the chaos continues. A few posts soon will discuss the status and prospects of developing clean-up efforts.