March 30, 2015

Willkie partner asked to argue on federal Habeas review standards. 

In a rare appointment, the United States Supreme Court has appointed Willkie partner Richard Bernstein to argue as an amicus curiae in Montgomery v. Louisiana. Mr. Bernstein, who is a former law clerk for U.S. Supreme Court Justice Antonin Scalia and Judge Amalya Kearse of the Second Circuit Court of Appeals,  and who has previously argued before the U.S. Supreme Court, has been asked by the Court to argue against the Court’s jurisdiction in this case where both parties agree the Court has jurisdiction. In rare instances, the Supreme Court will appoint an amicus to brief and argue an issue that is not disputed by the parties, so that the issue is fully developed.  Mr. Bernstein is the first lawyer appointed by the U.S. Supreme Court since 1996 to argue solely against jurisdiction.

In Montgomery v. Louisiana, the issue disputed by the parties is whether an earlier decision by the U.S. Supreme Court applies retroactively. But in Montgomery, the defendant has not presented that issue in a federal habeas proceeding but so far only in state court collateral review proceedings. Mr. Bernstein has been asked to address whether state courts must follow federal habeas retroactivity requirements in state collateral review proceedings. 

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