Cite as: 547 U. S. ____ (2006) 1 

KENNEDY, J., concurring 

SUPREME COURT OF THE UNITED STATES 

JOSE PADILLA v. C. T. HANFT, UNITED STATES

NAVY COMMANDER, CONSOLIDATED 

NAVAL BRIG

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05–533. Decided April 3, 2006 

The petition for a writ of certiorari is denied. JUSTICE 

SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER would 

grant the petition for a writ of certiorari. 

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and 

JUSTICE STEVENS join, concurring in the denial of 

certiorari. 

The Court’s decision to deny the petition for writ of

certiorari is, in my view, a proper exercise of its discretion 

in light of the circumstances of the case. The history of 

petitioner Jose Padilla’s detention, however, does require 

this brief explanatory statement. 

Padilla is a United States citizen. Acting pursuant to a

material witness warrant issued by the United States

District Court for the Southern District of New York, 

federal agents apprehended Padilla at Chicago’s O’Hare 

International Airport on May 8, 2002. He was transported 

to New York, and on May 22 he moved to vacate the warrant. On June 9, while that motion was pending, the 

President issued an order to the Secretary of Defense

designating Padilla an enemy combatant and ordering his

military detention. The District Court, notified of this 

action by the Government’s ex parte motion, vacated the 

material witness warrant. 

Padilla was taken to the Consolidated Naval Brig in

Charleston, South Carolina. On June 11, Padilla’s counsel 

filed a habeas corpus petition in the Southern District of 
2 PADILLA v. HANFT 

KENNEDY, J., concurring 

New York challenging the military detention. The District 

Court denied the petition, but the Court of Appeals for the 

Second Circuit reversed and ordered the issuance of a writ 

directing Padilla’s release. This Court granted certiorari 

and ordered dismissal of the habeas corpus petition without prejudice, holding that the District Court for the

Southern District of New York was not the appropriate

court to consider it. See Rumsfeld v. Padilla, 542 U. S. 426 

(2004).

The present case arises from Padilla’s subsequent habeas corpus petition, filed in the United States District

Court for the District of South Carolina on July 2, 2004. 

Padilla requested that he be released immediately or else 

charged with a crime. The District Court granted the

petition on February 28, 2005, but the Court of Appeals for 

the Fourth Circuit reversed that judgment on September

9, 2005. Padilla then filed the instant petition for writ of 

certiorari. 

After Padilla sought certiorari in this Court, the Government obtained an indictment charging him with various federal crimes. The President ordered that Padilla be 

released from military custody and transferred to the 

control of the Attorney General to face criminal charges.

The Government filed a motion for approval of Padilla’s 

transfer in the Court of Appeals for the Fourth Circuit. 

The Court of Appeals denied the motion, but this Court

granted the Government’s subsequent application respecting the transfer. Hanft v. Padilla, 546 U. S. ___ (2006).

The Government also filed a brief in opposition to certiorari, arguing, among other things, that Padilla’s petition 

should be denied as moot. 

The Government’s mootness argument is based on the

premise that Padilla, now having been charged with

crimes and released from military custody, has received 

the principal relief he sought. Padilla responds that his

case was not mooted by the Government’s voluntary ac-
Cite as: 547 U. S. ____ (2006) 3 

KENNEDY, J., concurring 

tions because 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

disfavoring the exercise of the Court’s certiorari power. 

Even if the Court were to rule in Padilla’s favor, his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of

what rights he might be able to assert if he were returned

to military custody would be hypothetical, and to no effect, 

at this stage of the proceedings. 

In light of the previous changes in his custody status 

and the fact that nearly four years have passed since he

first was detained, Padilla, it must be acknowledged, has a

continuing concern that his status might be altered again. 

That concern, however, can be addressed if the necessity 

arises. Padilla is now being held pursuant to the control 

and supervision of the United States District Court for the 

Southern District of Florida, pending trial of the criminal 

case. In the course of its supervision over Padilla’s custody and trial the District Court will be obliged to afford

him the protection, including the right to a speedy trial, 

guaranteed to all federal criminal defendants. See, e.g., 

U. S. Const., Amdt. 6; 18 U. S. C. §3161. Were the Government to seek to change the status or conditions of 

Padilla’s custody, that court would be in a position to rule 

quickly on any responsive filings submitted by Padilla. In 

such an event, the District Court, as well as other courts of 

competent jurisdiction, should act promptly to ensure that

the office and purposes of the writ of habeas corpus are not

compromised. Padilla, moreover, retains the option of 

seeking a writ of habeas corpus in this Court. See this 

Court’s Rule 20; 28 U. S. C. §§1651(a), 2241. 

That Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of 

the role and function of the courts, also counsels against 
4 PADILLA v. HANFT 

KENNEDY, J., concurring 

addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This 

is especially true given 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 to deny certiorari.