Lawrence L. Simmons v. Howard L. Beyer and the Attorney General of the State of New Jersey, W. Cary Edwards

I respectfully dissent from the order denying rehearing in banc. The panel opinion points out that “[h]ad Simmons received a timely review, his conviction would have become final before 1986,” when Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided. Maj. op. at 1165. This observation unquestionably is true as Simmons was sentenced in 1977. Thus, the panel acknowledges that Simmons is a “chance beneficiary” of Batson, for without the delay Batson could not have applied in this case. Id. The panel, however, justifies its result by pointing out that Simmons “was…