In Kendrick v. Dist. Attorney of the County of Philadelphia, 02-3158 (opinion here), the 3rd Circuit vacated and remanded the denial of habeas when a the statute which petitioner was convicted under was subsequently held inapplicable by the Pennsylvania Supreme Court. The 3rd Circuit, before issuing the opinion, also sought a certified question from the Pennsylvania Supreme Court, regarding the nature of the rule announced in the relevant case. That court held that the rule was an "old rule" and therefore applicable to the petitioner. That led to the 3rd Circuit granting the petition:
Because Kendrick was convicted of a violation of the PCOA that the Pennsylvania Supreme Court has held was inapplicable, and therefore his conviction was “constitutionally invalid,” see Bousley v. United States, 523 U.S. 614, 619 (1998), we will direct the District Court to grant the writ of habeas corpus to vacate Kendrick’s conviction on that count.
Elsewhere, in Nenno v. Quarterman, 06-7001 (opinion here), the 5th Circuit denied a COA on two claims. The latter claim, that "the Constitution requires that the states provide condemned prisoners with counsel who provide effective assistance in state habeas proceedings," led the court to write the following:
Counsel ably states the case for requiring the state to provide counsel in state habeas review of death sentences. That the primary battle in collateral attack of capital sentences is now in the state courts, located there both by the jurisprudence of the Court and the Congress cannot be denied. Nor do we question the importance of competent representation for defendants traversing this terrain. We say only that we do not make light of the argument, saying no more because this inferior court could not grant the requested relief if it were persuaded to do so. The argument must be made to the Congress or perhaps the Supreme Court.
This statement is particular interesting given the recent publication of DOJ's opt-in regulations requiring the states to provide counsel for collateral attack on capital sentences.
