FILED

FOR PUBLICATION MAY 18 2005

CATHY A. CATTERSON, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL MERTON IRONS, II, No. 05-15275

Petitioner - Appellee, D.C. No. CV-04-00220-LKK Eastern District of California, v. Sacramento

TOM L. CAREY, Warden,

ORDER

Respondent - Appellant.

Before: REINHARDT, NOONAN, and FERNANDEZ, Circuit Judges.

The parties are ordered to file supplemental briefs, not to exceed 25 pages,

within 28 days from the date of this order. The supplemental briefs shall discuss

the constitutionality of the standards that Congress has set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §

2254(d)(1). Specifically, the parties should discuss, in light of Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803), and City of Boerne v. Flores, 521 U.S.

507, 536 (1997), whether AEDPA unconstitutionally prescribes the sources of

law that the Judicial Branch must use in exercising its jurisdiction or

unconstitutionally prescribes the substantive rules of decision by which the federal

courts must decide constitutional questions that arise in state habeas cases. The parties should consider whether, under the separation of powers doctrine or for

any other reason involving the constitutionality of 28 U.S.C. § 2254(d)(1), this

court should decline to apply the AEDPA standards in this case.

This court also certifies the above question to the Attorney General of the

United States pursuant to 28 U.S.C. § 2403(a). The Attorney General is permitted

to intervene and file a brief, not to exceed 25 pages, within 28 days from the date

of this order. If the panel determines that further oral argument would be of

assistance, it will schedule such argument and inform the parties, the Attorney

General, and any amici at that time. This court also invites interested parties to

request leave, within 14 days from the day of this order, to file amicus curiae

briefs. Should leave be granted, such parties shall have 21 days from the date

thereof to file briefs of not more than 20 pages.

Judge Fernandez does not join in this order.

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