1 Cite as: 54 7 U

. S. ____ (2006)

K ENNEDY , J ., c o ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES
JOSE PADILLA v. C. T

. HAN FT, UNITE D STATE S NAVY COMMANDE R , CONSOLIDAT ED NA VALBRIG

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE S COU R T OF APPEALS FOR THE FOURTH CIRCUIT
No. 05–5 33. D e c i ded Apr il 3, 2006 The petition for a writof certiorari is denied. J U S TICE S OUTER , J US T I C E G IN SB U R G , and J USTICE B RE YE Rwould grant the p e tition for a writ of cert iorari. J USTICE K E NNEDY , wit hwhom T HE C HIEF J US T I C E an d J USTICE S TEVEN Sjoin, concurring in the denial of certiorari. The Court’s decision to de ny th e petition for writ o f certiorari is, in my view, a proper exercise of its discretion in light of the circumstances of the case. T h e history of petitioner Jose Padilla’ s detention, however, does require this brief explanatory s t atement. Padilla is a United Sta t es citizen. Acting pursuant to a material witness warr ant issued by the U n ited State s District Court for the Southe rn District of New York, federal agents appreh ended Padilla at Chicago’s O’Ha re International Airport on May 8, 20 02. He was transported to New Yor k , and on May 22 he moved to v a cate the w a r
rant. On June 9, w h ile that motion was pending, the President issued an order to the Secreta ryof Defense designating Padilla an enemy combatant and ordering his military detention. T h e Distri ct Court, notified of thi s action by the Government’s ex partemotion, vacated t h e material witness warra nt. Padilla was taken to the Consolidated Naval Brig in Charleston, South Carolina. On Ju ne 11, Padil l a’s counsel filed a habeas corpus petition in the Southern Distric tof2 PADILLA v. HANFT

K ENNEDY , J ., c o ncu rrin g New York challenging the militar y detention. The District Court denie dthe peti tion, but the Court of Ap peals for th e Second Circuit reversed and ordere d the issuance of a wri t directing Padilla’s release. This Court gran ted certiora r i and ordered dismissalof the habeas corpus petition with

out prejudice, holdingthat the District Co urt for the Southern D i strict of New York w a s not the appropriate court to consider it. See Rum s feld v. Pa di lla, 5 42 U. S. 4 2 6 (2 00 4)

. The present case aris es from Pa dilla’s subsequent ha

beas corpus petition, filed in the United S t ates Distric t Court for the District of South Carolina on July 2, 200 4. Padilla requested that he be relea s ed immedi ately or else charged with a crime. The District Court granted th e petition on February 2 8 , 2005, but the Court of Appeals for the Fourth Circuit rev e rsed that judgment on Septembe r 9, 2005. Padilla then filed the instant petiti on for writ of certiorari. After Padil l a sought certiorari in this Court, the Gov

ernment obtained an indictment charging hi m with var i

ous federal crimes. Th e Presidentordered that Padilla b e released from military custody and transferred to the control of the Attorne yGeneral t oface criminal charges. The Government filed a motion for approvalof Padilla’s transfer inthe Cour tof Ap peals for the Fourth Circui t

. The Court of Appeals denied the motion, but this Court granted the Government’s subs equent application respect

ing the tra nsfer. Hanf tv. Padilla , 546 U. S. ___ (2006)

. The Govern ment also f iled a br ief in opposition to certio

rari, arguin g, among other things , that Padil l a’s petition should be d e nied as moot. The Government’s mootness argument is based on the premise that Padilla, now having been charged with crimes and released from milit ary custody, has received the principal relief he sought. Padilla responds that his

case was n o t mooted by the Go v e rnment’s voluntary a c
-3 Cite as: 54 7 U

. S. ____ (2006)

K ENNEDY , J ., c o ncu rrin g tions becau s e there remains a possibility that he will be redesignated and redetained as an enemy combatant. Whatever the ultimate merits of the parties’ mootness arguments, there are strong prudential considerations disfavoringthe exerci se of the Court’s cer t iorari pow e r. Even if the Court were to rule in Padilla’s favor, his pre

sent custody status wo uld be unaffected. Padilla is sched

uled to b et r ied on cri minal charges. Any consideration of what righ ts he might be able to assert if he were returned to military custody wo uld be hy pothetical, and to no effec t , at this stage of the pro c eedings. In light of the previou s changes i nhis custo dy sta t us and the fact that nearly four years have passed since h e first was de tained, Padilla, it mustbe acknowl e dged, has a continuing concern that his status might be a l tered again. That concern, however, can bea ddressed if the necessi ty arises. Padilla is nowbeing held pursuant to the control and supervi s ion of the United Sta t es District Court for th e Southern D i strict of Florida, pending trial of the criminal

case. In th e course of its supervi s ion over Padilla’s cus

tody and trial the District Cou rt will be obli ged to affor d him the pr otection, including the rightto a speedy tria l , guaranteed to allfederal criminal defendants. See, e.g. , U. S. Const., Amdt. 6; 18 U. S. C. §3161. Were the Go v
ernment to seek to change th e status or conditions of Padilla’s custody, that court would be in a position to rule quickly on any responsive filings s ubmitted by Padilla. In such an event, the Dist rict Cour t, as well as other courts of competent j u risdiction, should act promptly to ensure tha t the office and purposes of the writ of habeas corpus are not compromised. Padilla , moreover, retains the option of seeking a writ of hab eas corpus in this Court. See thi s Court’s Rul e20; 28 U. S. C. §§1651(a), 2241. That Pa dilla’s claims raise fundamental issues respect

ing the sep a ration of powers, inc l uding consideration of the role and function of the courts, also coun sels agains t4 PADILLA v. HANFT

K ENNEDY , J ., c o ncu rrin g addressing those claim s when the course of le gal proceed

ings has made them, at least fornow, hypothetical. Th is is especiall ytrue give n that Padilla’s current custody is part of the relief he sought, and that its lawfulness is uncontested. These are the reasons for my vote t o deny certiorari.