When the case of Ex parte LaRoyce Smith was decided earlier this year we noted Jordan Steikers words that it appears to be "a form of defiance and civil disobedience." We noted it appeared likely to be headed for cert. Today cert was granted. Akin Gump's SCOTUSBlog notes this:

The Supreme Court had overturned LaRoyce L. Smith's death sentence in November 2004, but the sentence was reimposed by Texas state courts. (The earlier Supreme Court ruling, a summary decision, came in docket 04-5323, and can be found here.) The new case appears to be the latest episode in a continuing test of wills between the Supreme Court and Texas state courts over the standards to be used in capital sentencing proceedings.

Four former federal judges, supporting Smith's appeal, urged the Court to hear the case "to reaffirm that lower courts, on remand, must comply with this Court's mandates and must not invent new procedural obstacles to avoid compliance." This amici brief said that the Smith case involves resistance to the Supreme Court's earlier mandate. UPDATE: Thanks to Professor Erwin Chemerinsky, counsel to the judges, the amici brief can now be found here. The Texas court, on remand, created and applied "a harmless error analysis that had never before been applied in this case or context....What the state court has done in this case is flout this Court's interpretation of [constitutional] guarantees. Such an action should not be permitted to stand, for it undermines the Constitution, our federal system, and this Court's role in the enforcement of limits imposed by both."

The new appeal presents two questions: "1. Is it consistent with this Court's remand in this case for the Texas Court of Criminal Appeals to deem the error in petitioner's case harmless based on its view that jurors were in fact able to give adequate consideration and effect to petitioner's mitigating evidence notwithstanding this Court's conclusion to the contrary? "2. Can the Texas Court of Criminal Appeals, based on a procedural determination that it declined to adopt in its original decision that this Court then summarily reversed, impose on remand a daunting standard of harm ('egregious harm') to the constitutional violation found by this Court?"

I would note that the Court seems to be carving out, considering the number of cert grants from the "death belt" (the courts, both state and federal, in the Fourth, Fifth & Eleventh Circuit) and Ninth Circuit in recent terms, a "third way" akin to that approach taken overwhelmingly in the Third, Sixth, Eighth and Tenth Circuits, that is petitioners get a fair shot of reversing their sentence and/or conviction, one that is not overly easy or impossibly difficult one.