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6) ENERGY LAW: Public Power Council, Inc. v. Bonneville Power Administration, 04-73240 (9th Cir. Apr. 4, 2006). The Public Power Council, and others (collectively "PPC") petitioned for a review of a decision of the Bonneville Power Administration ("BPA") to trigger the Safety-Net Cost Recovery Adjustment Clause ("SN CRAC") portion of its General Rate Schedule Provisions ("GRSPs"), as a result of which a rate setting proceeding took place. The Canby Utility Board petitioned for a review on the basis that because it had a special contract with BPA, its rates could not be changed. The USCA denied the petitions. When the BPA adopted its WP-02 Rates (wholesale power rates for the period of Oct. 1, 2001 to Sept. 30, 2006), which included three CRACs, it did so in a time of great uncertainty. Although everyone undoubtedly hoped it would never have to be used, the SN CRAC, which allowed for an upward adjustment of rates, was made a part of the GRSPs. But, the BPA fell on hard times and decided to trigger the SN CRAC in order to share its pain with its customers. PPC asserted that the BPA improperly triggered the SN CRAC. The USCA said it was constrained to hold that BPA did not act in a manner that was either arbitrary or capricious when it did so. Nor had BPA disabled itself from sharing its pain with Canby Utility Board. Fernandez (author), Tashima, and Paez, Circuit Judges. N. Baker of Portland, OR, for Public Power Council; P. Murphy of Portland, OR, for Canby Utility Board; W. Walters of Portland, OR, for Alcoa Incorporated; M. Davison of Portland, OR, for Industrial Customers of Northwest Utilities; AUSA K. Casad of Portland, OR, for the BPA.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) LABOR LAW: International Chemical Workers Union Council of the Untied Food & Commercial Workers International v. NLRB, 04-72270 (9th Cir. Apr. 28, 2006). This case arose out of events that took place while the Union and the American Polystyrene Corporation ("APC") were in negotiations for a successor collective bargaining agreement. Applying the rule announced by NLRB v. Truitt Mfg. Co., 351 US 149 (1956), the National Labor Relations Board ("NLRB") held that APC bargained in good faith, even though it refused a request by the Union to turn over its financial documents. The Union sought a review of that decision. The USCA held that substantial evidence did not support the NLRB's conclusion that APC bargained in good faith. APC clearly asserted an inability to pay which, under Truitt, required it to disclose corroborative documents to the Union. Moreover, APC never effectively retracted its claim that it could not afford to pay for the union's proposals. The USCA thus granted the petition for review. Pregerson (author), Cowen, and Thomas, Circuit Judges. R. Vehar of Akron, OH, for the petitioner; A. Armstrong of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) WORKERS' COMPENSATION: Healy Tibbitts Builders, Inc. v. Director, Office of Workers' Compensation Programs, 04-70575 (9th Cir. Apr. 14, 2006). The decedent in this case was killed near the water's edge while excavating a utility line trench, a job that was part of a project to renovate three submarine berths at Pearl Harbor. The USCA held that the Benefits Review Board reasonably concluded that the decedent was a "harbor worker" covered by the Longshore and Harbor Workers' Compensation Act even though his specific job was not uniquely maritime in nature. Hall, Silverman (author), and Graber, Circuit Judges. P. Schraff of Honolulu, HI, for the petitioners; H. Radzely of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) SEX DISCRIMINATION: Jespersen v. Harrah's Operating Co., 03-15045 (9th Cir. Apr. 14, 2006). The USCA took this case en banc in order to reaffirm Circuit law concerning appearance and grooming standards, and to clarify evolving Circuit law of sex stereotyping claims. Affirming the district court, the USCA found the record devoid of any basis for permitting this particular claim to go forward, as it was limited to the subjective reaction of a single employee, and there was no evidence of a stereotypical motivation on the part of the employer. This case was essentially a challenge to one small part of what is an overall apparel, appearance, and grooming policy that applies largely the same requirements to both men and women. The touchstone is reasonableness. A makeup requirement must be seen in the context of the overall standards imposed on employees in a given workplace. Dissenting, Judge Pregerson joined by Judges Kozinski, Graber, and W. Fletcher, agreed with the majority that appearance standards and grooming policies may be subject to Title VII claims and that Jespersen failed to introduce sufficient evidence to establish that Harrah's "Personal Best" program created an undue burden on Harrah's female bartenders. But, Judge Pregerson departed from the majority inasmuch as he thought that the "Per-sonal Best" program was part of a policy motivated by sex stereotyping and that Jespersen's termination for failing to comply with the program's requirements was "because of" her sex. Dissenting, Judge Kozinski, joined by Judges Graber and W. Fletcher, agreed with Judge Pregerson's dissent-subject to one caveat: Judge Kozinski thought that Jespersen presented a triable issue of fact on the issue of disparate burden. He thought it clear that Harrah's overall grooming policy was substantially more burdensome for women than for men. The requirement that women spend time and money applying full facial makeup, including face powder, blush, mascara and lipstick, had no corresponding requirement for men. Schroeder (author), Pregerson (dissenting), Kozinski (dissenting), Rymer, Silverman, Graber, W. Fletcher, Tallman, Clifton, Callahan, and Bea, Circuit Judges. J. Pizer of Los Angeles, CA, from the plaintiff-appellee. K. McKenna of Reno, NV, for the plaintiff-appellant; P. Hicks of Las Vegas, NV, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) FALSE CLAIMS ACT: USA v. Catholic Healthcare West, 03-16937 (9th Cir. Apr. 19, 2006). Haight and an organization called "In Defense of Animals" (collectively "Relators") brought this qui tam action under the False Claims Act against Catholic Healthcare West and Dr. Berens. They alleged that Berens submitted a fraudulent grant application to the National Institutes of Health. Based on that application, he was awarded over $700,000 in grant money. The Relators appealed the dismissal of their complaint for lack of subject matter jurisdiction under the Act. The district court determined that the allegations underlying their claim were publicly disclosed because the alleged fraud occurred in a grant application obtain by the Relators pursuant to a FOIA request, and the Relators' claims were disclosed in press releases and news articles. The USCA reversed. The district court incorrectly held that the response to the FOIA request was a "public disclosure" via an enumerated source within the meaning of 31 USC Sec. 3730(e)(4)(A). A response to a FOIA request is not necessarily a report or investigation, although it can be, if it is from one of the sources enumerated in the statute. Since the documents obtained here via a FOIA request was not from one of the sources enumerated in the statute, the FOIA response did not trigger the jurisdictional bar. B. Fletcher (author), Gibson, and Berzon, Circuit Judges. J. Friedman of Oakland, CA, for the appellants; L. Kasten of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) CIVIL PROCEDURE: Durham v. Lockheed Martin Corp., 04-15243 (9th Cir. Apr. 26, 2006). A defendant has 30 days to remove a case on diversity or federal question grounds. At issue here was whether the 30-day clock is reset if the defendant later discovers the case is also removable on federal officer grounds. The district court remanded the case to state court and awarded Durham $9,113.99 in costs and attorneys' fees because Lockheed's removal was untimely. It did not reach the question of whether Lockheed's federal contractor immunity defense met the substantive requirements of 28 USC Sec. 1442. The USCA likewise expressed no opinion on the merits of Lockheed's removal. But, it held that Lockheed's removal petition was timely and that Lockheed had an objectively reasonable basis for filing the removal petition. The USCA thus reversed the district courts award of fees and costs to Durham. Kozinski (author) and Fernandez, Circuit Judges, and Hatter, District Judge. R. Loewen of Irvine, CA, for the defendant-appellant; G. Purcell of Novato, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) DISABILITIES EDUCATION ACT: Park v. Anaheim Union High School District, 04-55569 (9th Cir. Apr. 17, 2006). Park and his mother brought this action against the Anaheim Union High School District and the Greater Anaheim Special Education Local Plan area. They alleged that the defendants failed to comply with procedural and substantive requirements of the Individuals with Disabilities Education Act. They expressly challenged the award of compensatory services and the denial of attorney's fees. The district court affirmed the decisions of the Hearing Officer of the California Special Education Hearing Office in part and modified details in part. The USCA affirmed. The district court did not abuse its discretion by finding that the School District prevailed on "all significant issues" and the Parks prevailed only "on some minor issues." Though the Parks obtained some relief (a finding of denial of a free and appropriate public education for one extended school year and one period of less than three months, limited compensatory services awarded directly to the teachers, supplemented self-help goals and requiring the School District to conduct a new functional behavior assessment and implement a behavior intervention plan), the School District prevailed on all procedural violations issues and the larger substantive free and appropriate public education issues. The district court also did not abuse its discretion in determining that the Parks' relief was de minimis. Though the district court might have been within its discretion to award the appellants attorneys' fees, the USCA could not say the district court abused its discretion in not awarding fees. Judge Wardlaw dissented from the majority's conclusions that the Parks prevailed only on "minor" issues, and that the district court did not abuse its discretion in denying the Parks' attorneys' fees. Judge Wardlaw thought that the district court abused its discretion determining that the Parks were not the prevailing party. Given the narrow discretion a district court has to deny fees in claims brought under the Act, the majority ignored not only the letter of the law, but the spirit and purpose of allowing attorneys' fees in cases where parents have been forced to litigate for years against a school district to get all or part of what the Act requires in the first place. Beezer (author), Hall, and Wardlaw (dissenting in part), Circuit Judges. B. Kim of Torrance, CA, for the plaintiffs-appellants; J. Mott of Tustin, CA, for the defendants-appellants.(Download the full text of this decision at www.ce9.uscourts.gov/) 13) FIRST AMENDMENT / BILLBOARDS: Valley Outdoor, Inc. v. City of Riverside, 04-55029 (9th Cir. Apr. 27, 2006). At issue in this challenge to a municipal billboard ordinance was whether Valley Outdoor, a billboard company, had standing to assert various claims under the First and Fourteenth Amendments of the U.S. Constitution. The USCA affirmed in part and reversed in part and remanded for trial proceedings consistent with its opinion. The district court properly held that Valley Outdoor lacked standing to challenge the substantive provisions of the billboard ordinance. However, Valley Outdoor's commencement of construction on the billboard before applying for the required permits did not constitute disqualifying "self-help," as the district court concluded. That actually gave rise to the very case or controversy here. The district court thus erred in ruling that Valley Outdoor lacked standing to assert constitutional claims related to the City's conduct in refusing to process the late-filed permit applications. Finally, the district court abused its discretion in granting a motion in limine because its exclusion of the evidence was predicated upon an inaccurate application of standing doctrine. Evidence of the manner in which the City handled or refused to accept or process permit applications is clearly relevant to a claim challenging precisely that conduct. Concurring in the result, Judge Friedman noted that the City required that before beginning the construction of a billboard, one must apply for and receive a permit. Valley Outdoor did not do so. Instead, it began construction and laid concrete foundations for five billboards. After that work had been completed without a permit, Valley Outdoor sought a permit from the City, which denied the request. Judge Friedman said that if that were all the case involved, the outcome would be clear and simply. However, the City's permit procedure included detailed provisions by which it may grant a permit after construction has begun or even completed. Valley Outdoor attempted to invoke that procedure, but the City rejected its belated attempt to obtain a permit on grounds that at least suggests the City had already decided not to authorize retroactively Valley Outdoor's billboards. The City's stated reason for returning the second permit application, after construction of the billboards had been completed, was that Valley Outdoor had improperly identified the color and material used for the uprights and had not given precise street addresses for two of the billboards. As the majority suggested, these deficiencies seem more appropriate to be dealt with through a correction letter than by re-jecting the application. Judge Friedman thought that the further explication and development of the facts that the majority apparently contemplates would facilitate the ultimate final disposition of this case. Friedman (concurring), O'Scannlain (author), and Paez, Circuit Judges. E. Disney of Santa Monica, CA, for the plaintiff-appellant; T. Coates of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) FIRST AMENDMENT: Harper v. Poway Unified School District, 04-57037 (9th Cir. Apr. 20, 2006). At issue here was whether a high school may prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? The school had ordered Harper not to wear a T-shirt to school that read "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality is Shameful." Harper appealed the district court's order denying his motion for a preliminary injunction. The USCA affirmed, holding that the district court did not abuse its discretion in denying the preliminary injunction. Harper failed to demonstrate that he would likely prevail on the merits of his free speech, free exercise of religion, or establishment of religion claims. It added that future success on Harper's part was highly unlikely. The Free Speech Clause permits public schools to restrict student speech that intrudes upon the rights of other students. Injurious speech that may be restricted is not immune from regulation simply because it reflects the speaker's religious views. The USCA thus affirmed the district court's denial of Harper's motion for a preliminary injunction. Dissenting, Judge Kozinski said he could not agree with the majority's rationale or conclusion. He noted that on the record to date, school authorities have offered no lawful justification for banning Harper's T-shirt and the district court should thus have enjoined them from doing to pending the outcome of this case. Moreover, Judge Kozinski thought that Harper raised a valid facial challenge to the school's harassment policy and the district court should have enjoined the policy as well. Reinhardt (author), Kozinski (dissenting), and Thomas, Circuit Judges. R. Tyler of Murrieta, CA, for the plaintiff-appellant; D. Shinoff of San Diego, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 15) EIGHTH AMENDMENT: Jones v. City of Los Angeles, 04-55324 (9th Cir. Apr. 14, 2006). Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance criminalizing sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within City limits. They sought limited injunctive relief from enforcement of the ordinance between 9:00 pm and 6:30 am, and at any time against the temporarily infirm or permanently disabled. At issue on appeal was whether the Eighth Amendment right to be free from cruel and unusual punishment prohibited enforcement of the ordinance as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles. The USCA reversed the award of summary judgment to the City and granted summary judgment to the appellants and remanded to the district court for a determination of injunctive relief consistent with its opinion. Undisputed evidence in the record established that at the time they were cited or arrested, the appellants had no choice other than to be on the streets. Even if their past volitional acts contributed to their current need to sit, lie, and sleep on public sidewalks at night, those acts were not sufficiently proximate to the conduct at issue for the imposition of penal sanctions to be permissible. Dissenting, Judge Rymer noted that there is no question that homelessness is a serious problem and the plight of the homeless, a cause for serious concern. But, she thought that did not give the Court license to expand the narrow limits that, in a "rare type of case," the Cruel and Unusual Punishment Clause of the Eighth Amendment places on substantive criminal law. Rymer (dissenting) and Wardlaw (author), Circuit Judges, and. Reed, District Judge. B. Wizner of Los Angeles, CA, for the plaintiffs-appellants; DCA A. Field of Los Angeles, CA for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 16) ELECTION LAW / STANDING: Gest v. Bradbury, 04-36034 (9th Cir. Apr. 17, 2006). At issue here was whether signature collectors had standing to seek declaratory and injunctive relief arising out of a state official's application of rules governing Oregon's initiative petition process. The USCA affirmed the district court's dismissal of the action. The signature collectors conceded that the stan-dards the Elections Division uses to evaluate circulator certifications are now codified into administrative law. Accordingly, the possi-bility that the Secretary of State will, in the future, apply unwritten rules to reject petition signature sheets for circulator certifications is hypothetical and too speculative to confer standing. D.W. Nelson and O'Scannlain (author), Circuit Judges, and Burns, District Judge. D. Meek of Portland, OR, for the appellants; R. Wasserman of Salem, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) CIVIL RIGHTS: Tatum v. City & County of San Francisco, 04-15055 (9th Cir. Apr. 3, 2006). Tatum, the decedent's mother, appealed the district court's order granting the defendant police officers summary judgment and dismissing her 42 USC Sec. 1983 claims. The USCA affirmed. First, the decedent died of cocaine toxicity during or after his arrest. His behavior and appearance created a "fair probability" that he had committed a crime. He was kicking the door to a police station for no apparent reason; he disobeyed commands to stop; he was verbally unresponsive, except by incomprehensible mumbling; he was perspiring heavily; and his eyes were bloodshot. There was a fair probability that he was under the influence of a controlled substance, a crime under California law. Second, the arresting officer did not use excessive force during the arrest; his use of a control hold while handcuffing the deceased was objectively reasonable under the circumstances of the arrest. Noonan, Rymer, and Gould (author), Circuit Judges. G. Haynes of Daly City, CA, for the plaintiff-appellant; R. Bonta of San Francisco, CA, for the defendant-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) IMMIGRATION: Afridi v. Gonzales, 04-76600 (9th Cir. Apr. 4, 2006). Afridi petitioned for review of a Board of Immigration Appeals' decision dismissing his appeal and ordering him removed to Afghanistan. He maintained that the BIA erred in finding him re-movable pursuant to 8 USC Sec. 1227(a)(2)(iii) for having committed an aggravated felony and in denying him withholding of removal pursuant to 8 USC 1227(b)(3) and protection under Art. 3 of the Convention Against Torture ("CAT"). He also argued that the BIA violated his right to due process by failing to apply proper legal standards. The USCA concluded that Afridi was removable for having committed an aggravated felony. It also held that the BIA applied the proper legal standard in determining that Afridi did not qualify for relief under the CAT. Nevertheless, the USCA granted the petition in part because the BIA failed to apply the proper legal standard in determining Afridi's eligibility for withholding of removal. Hug, Alarcon (author), and McKeown, Circuit Judges. K. Knutson of Sacramento, CA, for the petitioner; P. Fiorino of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) IMMIGRATION: Rivas-Gomez v. Gonzales, 03-72087 (9th Cir. Apr. 3, 2006). This petition for review raised the issue of whether a conviction under Oregon Revised Statues Sec. 163.355 (rape in the third degree), which criminalizes as a felony "sexual intercourse with another person under 16 years of age." Constitutes an aggravated felony within the meaning of 8 USC Sec. 101(a)(43)(A). The USCA concluded, as did the Immigration Judge, that it does. However, because the IJ erroneously applied a heightened standard when deciding whether to grant a waiver under 8 USC Sec. 1159(c), the USCA granted the petition in part and remanded. Leavy and Trott (author), Circuit Judges, and Pollak (dissenting), District Judge. .P. Smith of Portland, OR, for the petitioner; L. McKay of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 20) IMMIGRATION: Mendez-Gutierrez v. Gonzales, 04-72525 (9th Cir. Apr. 17, 2006). Mendez-Gutierrez petitioned for review of the Board of Immigration Appeals' denial of his motion to reinstate his asylum application. The BIA found that Mendez-Gutierrez had not established a prima facie case for asylum based on a well-founded fear of future persecution. The USCA denied the petition for review. It held that the BIA was bound by the scope of the USCA's remand to resolve only one issue: whether Mendez-Gutierrez established a prima facie case of eligibility for asylum. Wallace (author), Hawkins, and Thomas, Circuit Judges. J. Kaufman of San Francisco, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) IMMIGRATION: Freeman v. Gonzales, 04-35797 (9th Cir. Apr. 21, 2006). This appeal concerns the fate of an alien widow who sought to remain in the United States notwithstanding that her citizen husband, to whom she was married for only a short time, died in a car accident and, according to the government, thereby "stripped" her of her status as his "spouse." Complicating the widow's ap-peal was the fact that although she (along with her citizen spouse) had petitioned to adjust her status to that of lawful permanent resi-dent, she had entered the U.S. under the terms of a special visa waiver program that limited her to a 90-day visitor's stay in the U.S. and required her to waive her rights to contest the government's decision to remove her. She asked the USCA to determine whether she remained a "spouse" who can qualify for lawful permanent resident status. The USCA held that the government's attempt to apply the "no-contest" clause of the Visa Waiver Program ("VWP") to the widow's adjustment of status proceeding and its contention that her spousal status was stripped by her husband's death were "contrary to congressional intent and frustrate congressional policy." First, the adjustment of status regime makes clear that a VWP entrant is assimilated into the procedural world of adjustment of status appli-cants once an immediate relative petition is properly filed, and not relegated to lesser rights by virtue of the VWP's "no-contest" clause. Second, given the text, structure and context of Sec. 1151(b)(2)(A)(i)-further illuminated by Department of Homeland Security's willingness to grant Lawful Permanent Resident applications regardless of the duration of a marriage-deference to the government's interpretation of "spouse" was not warranted. The widow remains an immediate relative (spouse) of a U.S. citizen and her adjustment of status application should be adjudicated accordingly. The USCA thus granted her petition for review and remanded to the district director for further consideration consistent with this opinion. The removal order entered against her was vacated. Fisher (author), Gould, and Bea, Circuit Judges. B. Renison of Portland, OR, for the petitioner; AUSA K. Bauman of Portland, OR, for the re-spondent-appellee. ((Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: USA v. Salazar-Gonzalez, 04-50411 (9th Cir. Apr. 21, 2006). Salazar-Gonzales appealed his conviction for being found in the United States without the consent of the Attorney General in violation of 8 USC Sec. 1326. At trial, the district court refused to give Salazar-Gonzalez's proposed jury instruction requiring the government to prove beyond a reasonable doubt that he "vol-untarily reentered" and "knew he was in" the United States. The district court concluded that Salazar-Gonzales presented no evidence to support a voluntariness instruction, but did not separately address the knowledge instruction. Although this was error, the USCA affirmed the district court because it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent that error. B. Fletcher (author), Rymer (concurring), and Fisher, Circuit Judges. V. Brunkow of San Diego, CA, for the defen-dant-appellant; AUSA S. Dougherty of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 23) QUALIFIED IMMUNITY / STRIP SEARCHES: Way v. County of Ventura, 04-55457 (9th Cir. Apr. 20, 2006). At issue here was whether Ventura County Sheriff Brooks and Deputy Hanson were entitled to qualified immunity for conducting a strip search with a visual cavity inspection of Way during the booking process at a pretrial detention facility on a misdemeanor charge of being under the influence of cocaine or methamphetamine in violation of California Health & Safety Code Sec. 11550(a). The issue required the USCA to decide whether a strip search with a visual cavity inspection can be justified based on Ventura County's blanket strip-search policy allowing such a search for arrestees charged with any controlled substance offense before placement in the general jail population. The district court held that the search was unconstitutional. The USCA agreed, but it was not clearly established at the time of Way's booking that strip searching persons arrested on drug charges was unreasonable. As the district court thought otherwise on this issue, the USCA reversed. A reasonable official in the position of Brooks and Hanson would not have understood that following the jail's policy violated Way's rights because the unconstitutionality of the search they conducted was not clearly established at the time. While concurring in most of the majority's opinion, Judge Wardlaw thought that at the time of Way's body cavity search, the Fourth Amendment principles governing blanket searches prohibited strip and body cavity blanket searches and required individualized rea-sonable suspicion based on specific and articulable facts before such a search could be conducted on a misdemeanor arrestee. Ventura County had an unconstitutional blanket strip search policy which permitted such searches based upon no specific, articulable facts at all-a policy the Ninth Circuit has repeatedly found unconstitutional. Rymer (author) and Wardlaw (concurring), Circuit Judges, and Reed, District Judge. A. Wisotsky of Oxnard, CA, for the appellants; E. Bell of Ventura, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) CONFLICT OF INTERESTS: USA v. Elliot, 04-10571 (9th Cir. Apr. 18, 2006). Elliott was charged with cocaine offenses. At his jury trial, during the cross-examination of a defense witness, an apparent conflict of interest arose involving Elliot's lead counsel, who appeared to have previously represented one of Elliot's key witnesses in connection with relevant matters. Elliott and his counsel refused to acknowledge whether or not a conflict existed and generally declined to assist the court in its effort to untangle the surprising and unusual situation. At the same time, Elliot insisted upon continuing with the same lawyer and objected to the ordering of a mistrial, while refusing to waive his right to conflict-free representation. After thorough consideration, the district court concluded that the performance of Elliot's counsel was hindered by conflict, and that, if Elliot was convicted, this conflict would make reversal on appeal almost certain. Over Elliot's objection, the district court ordered a mistrial based on manifest necessity. On appeal, Elliot maintained that there was no conflict of interest, and he moved to dismiss, arguing that the Double Jeopardy Clause barred his further prosecution because there was no manifest necessity justifying the mistrial. The USCA disagreed and affirmed the district court's denial of Elliot's motion to dismiss. Faced with an evident conflict of interest and a defendant apparently attempting to manufacture an issue for appeal, the district court did not err in finding manifest necessity for a mistrial. In order to preserve Elliot's right to conflict-free representation, to save valuable time and resources of the court and the jurors, and to serve the ends of public justice, the district court was justified in declaring a mistrial. Elliot's motion to dismiss was properly denied, and he could be tried on the pending charges. Bright, McKeown, and Clifton (author), Circuit Judges. J. Vodnoy of Las Angeles, CA, for the defendant-appellant; AUSA B. Sameshima of Honolulu, HI, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) PLEA AGREEMENTS: USA v. Transfiguracion, 04-10457 (9th Cir. Apr. 5, 2006). In this consolidated proceeding, the USCA was called upon to interpret and give effect to a less-than-precise plea agreement between the United States and two criminal defendants. The U.S. appealed from two decisions of the district court, which dismissed an indictment against both defendants on the grounds that the terms of their plea agreements prohibited the government from prosecuting them for the offenses covered by the indictment. The USCA affirmed. The plea agreements insulated the defendants from prosecution on the charges contained in the indictment. The bargain the government struck barred the prosecution of the defendants for the conspiracy offenses. The district court's interpretation of the plea agreements was correct and, thus, its decision to dismiss the indictment against the defendants, thereby precluding prosecution on the charges contained therein, was not an abuse of discretion. Dissenting, Judge Gibson thought that the plain language of the plea agreement permitted the government to prosecute the defendants on the counts not pleaded to. He noted that USA v. Barron, 172 F.3d 1153 (9th Cir. 1999) (en banc), held the government to the terms of a plea-bargain that failed to provide for the event that the conduct pleaded to would later turn out to be legal. The government learned its lesson and drafted a plea agreement providing that in such an event, the government could prosecute the defendant on the remaining counts. The defendants signed such an agreement. B. Fletcher, Gibson (dissenting), and Berzon (author), Circuit Judges. AUSA M. David of Hagatna, GU, for the plaintiff-appellant; W. Gavras of Hagatna, GU, for the defendant-appellee; J. Arriola of Hagatna, GU, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) CONTROLLED SUBSTANCES: USA v. Kim, 05-50112 (9th Cir. Apr. 10, 2006). This case concerns the conviction of the owner of a pharmacy, Kim, for selling cold remedies containing pseudoephedrine. He was convicted of violating 21 USC Sec. 841(c)(2), which prohibits the distribution of listed chemicals, including pseudoephedrine, "knowing, or having reasonable cause to believe, that [the pseudoephedrine] will be used to manufacture a controlled substance"-in this case methamphetamine. Kim argued that, because drugs containing pseudoephedrine can be legally sold over the counter and there is no bright line in the law demarcating the legal sale from an illegal sale, the law allowing conviction upon "reasonable cause to believe" is unconstitutionally vague. The Circuit has held that Sec. 841(c)(2) contains a mens rea requirement. The USCA now held that with that mens rea standard, the statute is not unconsti-tutionally vague and affirmed Kim's conviction. McKeown and Berzon (author), Circuit Judges, and King, District Judge. W. Genego of Santa Monica, CA, for the appellant; AUSA G. Lesser of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 27) CONTROLLED SUBSTANCES: USA v. Arreola, 04-10504 (9th Cir. Apr. 26, 2006). At issue here was whether in using the phrases "possesses" and "uses or carries," 18 USC Sec. 924(c)(1)(A) defines two offenses or two means of committing a single offense. The USCA concluded that the statute defines one offense, and affirmed the judgment of the district court. Wallace, Hawkins, and Thomas (author), Circuit Judges. M. Zilversmit of San Francisco, CA, for the appellant; AUSA D. Douglas of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) CONTROLLED SUBSTANCES: USA v. Rosenthal, 03-10307 (9th Cir. Apr. 26, 2006). Rosenthal appealed a three-count conviction for violation of the Controlled Substance Act, asserting an "as-applied" Commerce Clause challenge, a claim of immunity pursuant to 21 USC Sec. 885(d), erroneous evidentiary rulings and instructions by the district court, prosecutorial misconduct, juror misconduct, and the improper denial of a hearing under Franks v. Delaware, 438 US 154 (1978). The government cross-appealed, claiming that the district court erroneously found Rosenthal eligible for the "safety valve" and erroneously departed downward to impose a single day of confinement. The USCA reversed the conviction solely on the issue of jury misconduct and remanded for a new trial. It affirmed on all other grounds and dismissed the government's sentencing claims as moot. B. Fletcher (author), Gibson, and Berzon, Circuit Judges. D. Riordan of San Francisco, CA, for the appellant; A. Rosen of San Jose, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 29) SEX CRIMES: USA v. Curtin, 04-10632 (9th Cir. Apr. 4, 2006). Curtin appealed from his conviction and sentence for traveling across state lines with intent to engage in a sexual act with a minor in violation of 18 USC Sec. 2423(b), and use of an interstate facility to attempt to persuade a minor to engage in sex in violation of 18 USC Sec. 2422(b). The USCA affirmed in part, reversed in part, and remanded for a new trial. Dissenting, Judge Trott thought this case illustrated that the law of relevancy is more concerned with protect-ing a sexual predator's obscene manuals on what to do to children than with protecting the children upon whom they practice their perversions. Curtin's explanation to the jury for his Internet behavior with "christy13" (an undercover police officer posing as a 14-year old girl on the Internet) and his trip to Las Vegas to meet her was that he intended to act out an incestuous sexual fantasy with her, but that he expected her to be an adult who would pretend to be his innocent unspoiled daughter. Although he called his sexual fantasy "daddy daughter," he denied that the "daughter" would be a minor. If believed, this intend would defeat the prosecution's case, which required proof of an intent to engage a minor in unlawful sexual activity. However, Curtin had on his person at the time of his anticipated encounter with "christy13" obscene literature tending without ambiguity to prove that the object of his incest fantasy was a child, not an adult. The majority concluded that the district court erred in admitting this inculpatory literature because, as a matter of law, it was not relevant. Judge Trott disagreed. Wallace (author), Trott (dissenting), and Rymer, Circuit Judges. C. Potter of Las Vegas, NV, for the appellant; AUSA N. Koppe of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) PRETRIAL FINGERPRINT EXEMPLARS: USA v. Garcia-Beltran, 05-30434 (9th Cir. Apr. 6, 2006). The defendant appealed the district court's grant of the government's motion to require him to provide a pretrial fingerprint exemplar. The district court granted this motion after having first suppressed the defendant's fingerprint exemplars taken while he was in custody after an arrest lacking probable cause. The decision to suppress his fingerprints followed from the district court's finding that the fingerprints had been taken for both investigative and identification purposes. The district court's finding came at the direction of the USCA to hold an evidentiary hearing to determine the government's purpose in taking the fingerprints. The defendant maintained that the law of the case doctrine and the rule of mandate precluded the district court from granting the motion to compel a new set of fingerprint exemplars. In addition, the defendant asserted that, without an independent basis for fingerprinting, the evidence was subject to the exclusionary rule and, hence, could not be used by the government at trial. The USCA rejected both arguments and affirmed the district court's ruling on the government's motion to require the defendant to provide a pretrial fingerprint exemplar. Graber and Rawlinson, Circuit Judges, and Otero (author), District Judge. S. Sady of Portland, OR, for the appellant; AUSA K. Robinson of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) EVIDENCE: USA v. Bahamonde, 04-50618 (9th Cir. Apr. 25, 2006). Bahamonde appealed his jury conviction for knowingly importing marijuana and possession of marijuana with intent to distribute. He maintained that the district court erred by excluding the testimony of the government's case agent, called by the defense, on the sole ground that Bahamonde failed to comply with the Department of Homeland Security's regulations governing testimony by its employees. The USCA reversed for two reasons: 1) the regulations, which required disclosure by Bahamonde without reciprocal disclosure by the government, violated his due process rights, and 2) the district court abridged his Sixth Amendment rights by imposing the severe sanction of exclusion of the agent's entire testimony with-out weighing countervailing interests, such as Bahamonde's constitutional rights, prejudice to his defense, or the availability of alter-native sanctions. Dissenting, Judge Rawlinson said his primary disagreement with the majority lay in its characterization of the pivotal issue as one of reciprocal discovery. Rather, he saw the case as involving the agency's right to control the disclosure of information within its custody. Canby (author), Kozinski, and Rawlinson (dissenting), Circuit Judges. K. Hermansen of San Diego, CA, for the ap-pellant; AUSA S. Cook of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 32) EVIDENCE: USA v. Miranda-Guerena, 05-10198 (9th Cir. Apr. 25, 2006). The defendant appealed from a district court's order denying his motion to suppress evidence following his conditional guilty plea for violation of 21 USC Secs. 846 and 841(b)(A), conspiracy to possess with intent to distribute cocaine base. He maintained that the traffic stop that precipitated the government's search and seizure was not supported by reasonable suspicion that a traffic code violation had occurred; and that the traffic stop was not supported by reasonable suspicion that a drug trafficking crime had occurred. The USCA affirmed, concluding that the traffic stop was supported by reasonable suspicion that a traffic violation had occurred. Judge McKeown concurred but wrote separately to underscore that federal law, not Arizona law, was determinative of the admissibility of evidence in this case. Alarcon (author) and McKeown (concurring), Circuit Judges, and Holland, District Judge. R. Murray of Tucson, AZ, for the defendant-appellant; AUSA R. Miscall of Tucson, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) EVIDENCE / SENTENCING: USA v. Kilby, 05-30112 (9th Cir. Apr. 7, 2006). Kilby was convicted of conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 USC Secs. 841 and 846. On appeal, he argued that the evidence was insufficient to sustain his conviction. He also appealed his sentence on three grounds, arguing that the district court erred in calculating the amount of 5-MEO-DIPT ("Foxy") attributable to him, in deciding the amount of MDMA ("Estasy") attributable to him, and in imposing an unreasonable sentence. The USCA affirmed Kilby's conviction but vacated his sentence and remanded for resentencing without out reaching the question of whether the sentence as a whole was reasonable. The district court clearly erred in its Guidelines calculation by using an insufficiently reliable method of approximating the amount of Foxy attributable to Kilby. This error was not harmless because, had the district court found the tablets to each weigh 10 milligrams instead of 100 milligrams, Kilby's base offense level would have been 20 instead of 24, the level assigned by the district court. Fernandez, Tashima (author), and Paez, Circuit Judges. J. Ball of Boise, ID, for the defendant-appellant; AUSA A. Burrow of Boise, ID, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING: USA v. Ferryman, 05-30081 (9th Cir. Apr. 18, 2006). Ferryman appealed the district court's finding that he was ineligible for "safety valve" relief from a mandatory minimum sentence for manufacturing marijuana. At issue on appeal was whether the district court clearly erred in finding that Ferryman possessed eleven firearms in connection with his drug offense, after Ferryman ar-gued that he possessed the firearms primarily for the protection of his family. The USCA concluded that the district court did not clearly err and affirmed. Rawlinson and Clifton (author), Circuit Judges, and Burns, District Judge. S. Elliott of Seattle, WA, for the appellant; AUSA W. Redkey of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 35) SENTENCING: USA v. Thornton, 04-50226 (9th Cir. Apr. 17, 2006). This case required the USCA to decide whether a conviction under California Vehicle Code Sec. 23152(b) for driving with a blood alcohol level of 0.08 or higher is a conviction for an offense "similar" to driving under the influence, such that it must be included in a defendant's criminal history calculation pursuant to Sentencing Guideline Sec. 4A1.2 cmt. N.5. The USCA held that is it. Hall, O'Scannlain, and Paez (author), Circuit Judges. J. Sies of Los Angeles, CA, for the appellant; B. Walker of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING / HEARSAY TESTIMONY: USA v. Littlesun, 04-30300 (9th Cir. Apr. 21, 2006). At issue here was whether, after Crawford v. Washington, 541 US 36 (2004), it is appropriate to use hearsay testimony during sentencing. The USCA joined other circuits who have considered the issue in holding that it is. Browning, Alarcon, and Kleinfeld (author), Circuit Judges. L. Jent of Bozeman, MT, for the appellant; AUSA M. Hurd of Boise, ID, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 37) SENTENCING: USA v. Casey, 04-30525 (9th Cir. Apr. 10, 2006). At issue here was whether the United States is entitled to a money judgment forfeiture order against a criminal defendant who was convicted of a drug crime but had no assets at the time of sentencing. The district court rejected the government's request for a sentencing jury but, at the sentencing hearing, found that Casey had accepted responsibility for a specific quantify of ecstasy during his plea colloquy and thereupon sentenced him to two 70-month terms as provided by the Sentencing Guidelines, to be severed concurrently. The court declined to impose a forfeiture money judgment, explain-ing that it was not within her authority because Casey had no asserts to forfeit. The USCA vacated Casey's sentence and remanded for full resentencing. In addition, it reversed the denial of imposition of a money judgment for $7,000 and remanded for further proceedings consistent with this opinion. Browning, D.W. Nelson, and O'Scannlain (author), Circuit Judges. AFPD N. Bergeson of Portland, OR, for the petitioner; AUSA J. Martin of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) SENTENCING: USA v. Johnson, 02-50618 (9th Cir. Apr. 13, 2006). For his role as the getaway driver in a bank robbery, Johnson was convicted of one count of conspiracy to commit unarmed bank robbery and one count of the lesser included offense of unarmed bank robbery. He was sentenced to 165 months in prison, well within the 240 months statutory maximum for the crimes of conviction. Johnson appealed both the conviction and sentence. The USCA affirmed the conviction. However, the jury had returned no findings of fact with respect to three factors stemming from the reasonably foreseeable conduct of his accomplices which the court used on the basis of clear and convincing evidence to enhance his sentence: 1) use of a weapon, 2) the infliction of bodily injury upon a victim, and 3) the physical restraint of the victims. The USCA said it would ordinarily simply remand the sentence for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the Sentencing Guidelines were advisory. Here, however, the sentencing judge had retired. Accordingly, the USCA vacated the sentence and remanded for a full resentencing hearing before a new judge and for the imposition of a new sentence. Trott (author), Rymer, and Thomas, Circuit Judges. DFPD M. Kelly of Los Angeles, CA, for the defendant-appellant; AUSA C. O'Connor of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 39) SENTENCING / IMMIGRATION: USA v. Lopez-Torres, 05-10392 (9th Cir. Apr. 25, 2006). This appeal involved the unlawful reentry of a deported alien whose sentence was enhanced due to a prior conviction for shooting at an occupied motor vehicle in violation of California Penal Code Sec. 246. The USCA held that a conviction under Sec. 245 is categorically a crime of violence under Sentencing Guidelines Sec. 2L1.2. Goodwin (author), B. Fletcher, and Fisher, Circuit Judges. AFPD A. Allen of Las Vegas, NV, for the appellant; AUSA R. Bork of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SENTENCING / IMMIGRATION: In re Vasquez-Ramirez, 04-75715 (9th Cir. Apr. 6, 2006). At issue here was whether a district judge may reject a guilty plea that satisfies all the requirements of Fed. R. Crim. Proc. 11(b). The petitioner was deported after having been convicted of an aggravated felony. He then reentered the U.S. in violation of 8 USC Sec. 1326, a crime carrying a maximum sentence of 20 years. As is the practice in the Southern District of California, the government offered the petitioner a "fast-track" disposition: If he agreed to plead guilty within 60 days, waived his right to an indictment, waived all rights of appeal and collateral attack, and agreed to depart the U.S. following imprisonment, the government would allow him to plead guilty to one felony count and one misdemeanor count of violating 8 USC Sec. 1325 ("Improper entry by alien"), for a combined maximum prison sentence of 30 months. The petitioner agreed to the deal, signed a plea agreement, and was arraigned on an information charging two counts of violating 8 USC Sec. 1325. But the district court rejected the deal. The government then obtained, apparently as a result of a "mix-up," an indictment charging the petitioner with violating Sec. 1326, but also renewed its fast-track offer. The petitioner again accepted the offer. Pursuant to the renewed agreement, the petitioner would plead guilty to the two counts of violating Sec. 1325 and both parties would recommend that the judge impose the statutory maximum sentence of 30 months. The agreement together with the petitioner's criminal history report were submitted to the district court. This time, a different district judge rejected not only the plea agreement, but the petitioner's guilty plea itself. The petitioner moved for reconsideration but the district judge declined. When pressed for his reasons, the judge stated that he didn't want to get "mousetrapped" into losing his discretion to impose a sentence longer than 30 months. The petitioner then sought to compel the district judge to accept his guilty plea via a mandamus petition. He did not challenge the judge's rejection of the plea agreement. The USCA granted the petition for mandamus instructing that the case be transferred to another district judge and that the new judge conduct further proceedings consistent with the USCA's opinion. Canby, Kozinski (author), and Siler, Circuit Judges. S. Hubachek of San Diego, CA, for the petitioner; M. Dowd of San Diego, CA, for the respondent; AUSA R. Haines of San Diego, CA, for the U.S., real party in interest. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) SENTENCING: USA v. Miqbel, 05-10033 (9th Cir. Apr. 17, 2006). Miqbel appealed the sentence imposed by the district court on the grounds that the court failed to set forth sufficient reasons for its imposition of a sentence outside the recommended range, in violation of 18 USC Sec. 3553(c), and that the sentence was unreasonable because it was imposed to provide "just punishment," a factor he alleged to be impermissible in revocation sentencing. The USCA vacated the sentence and remanded for resentencing because the district court failed to state specific reason for the particular sentence imposed. Reinhardt (author) and Thomas, Circuit Judges, and Restani, Judge of the U.S. Court of Intl. Trade. FPD Q. Denvir of Sacramento, CA, for the defendant-appellant; AUSA S. Spangler of Sac-ramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) SENTENCING: USA v. Piccolo, 04-10577 (9th Cir. Apr. 3, 2006). Piccolo appealed the district court's determination that his conviction for "walk-away" escape from a halfway house is a "crime of violence" under Sentencing Guideline Sec. 4B1.1 and thus that he is a "career offender" under that provision. Because it held that the district court erred in determining that any escape is a crime of vio-lence, the USCA reversed and remanded for resentencing. A conviction for escape under 18 USC Sec. 751 does not necessarily involve conduct that presents a serious potential risk of physical injury to another, Guideline Sec. 4B1.2(a)(2), and is thus not a crime of violence under the Guidelines. B. Fletcher (author), Gibson, and Berzon, Circuit Judges. F. Forsman of Las Vegas, NV, for the appellant; D. Bogden of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) SENTENCING: USA v. Romero-Martinez, 05-10153 (9th Cir. Apr. 25, 2006). The defendant appealed from his sentence of 54 months imprisonment and three years supervised release. He challenged the imposition of a two-level sentencing enhancement under Guideline Sec. 2K2.1(b)(4) for possessing a firearm with an altered or obliterated serial number. The district court recognized that the Guidelines were advisory but stated it would "look very hard at the Guidelines because there is the congressional goal of uniformity in sentencing, among others." It then applied the two-level enhancement of Sec. 2K2.1(b)(4). The resulting Guideline calculation gener-ated a sentencing range of 51-63 months. The district court sentenced the defendant at the low end of the range to 54 months impris-onment followed by three years of supervised release. The USCA affirmed, holding that under 18 USC Sec. 921(a)(3), both fully assembled guns, as well as major components of guns (e.g., the frame or receiver), qualify as "firearms." As such, altering or obliterating serial numbers on these components, at lease when assembled as a functional weapon, qualifies for an enhancement under Sec. 2K2.1(b)(4). Wallace (author), Hawkins, and Thomas, Circuit Judges. FPD A. Ruiz of San Jose, CA, for the defendant-appellant; AUSA M. Chan of Oakland, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) SENTENCING: USA v. Zavala, 05-30120 (9th Cir. Apr. 11, 2006). Zavala appealed the sentence imposed upon him after he was convicted of conspiracy to distribute or to possess with intent to distribute methamphetamine and of distribution of methamphetamine. He sole claim on appeal was that the district court violated USA v. Booker, 543 US 220 (2005) when it "presumed" that the advisory Sentencing Guideline calculation set forth the proper range for sentencing. The USCA noted that, post-Booker, district courts have an obligation to consult the Sentencing Guideline. But a Guideline calculation is simply one factor to be considered when selecting the most appropriate sentence for a particular defendant. Nothing in 18 USC Sec. 3553, as it stands after Booker, indicates that the Guidelines are to be given any greater weight than other sentencing factors. Here, the district court gave the Guideline calculation exaggerated weight, treating it as a presumptive sentence from which the court was "free to depart." That was error. Because the USCA was not satisfied that the error was harmless, it vacated Zavala's sentence and remanded to the district court for resentencing. Fernandez (dissenting), Tashima, and Paez, Circuit Judges. Per Curiam. D. Charney of Eagle, ID, for the appellant; AUSA M. Stiles of Boise, ID, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 45) HABEAS CORPUS: Davis v. Grigas, 05-15211 (9th Cir. Apr. 10, 2006). Davis appealed the district court's denial of his 28 USC Sec. 2254 habeas petition. He plead guilty to attempted murder with the use of a deadly weapon and was sentenced to two consecutive 15-year prison terms. He maintained that his trial counsel's failure to investigate and present mitigating evidence at his sentencing hearing was constitutionally ineffective assistance of counsel. The Nevada state courts and the federal district court denied his petition. The USCA found that Davis did not qualify for habeas relief under Sec. 2254(d)(1) because there is no clearly established Supreme Court precedent governing ineffective assistance of counsel claims in the non-capital sentencing context. However, he may be entitled to relief under Sec. 2254(d)(2) because the Nevada Supreme Court based its decision on an erroneous understanding that Davis stipulated to the sentence he received. The USCA thus reversed the district court's denial of Davis's petition and remanded to the district court for an evidentiary hearing to allow Davis to present the mitigating evidence that his attorney failed to present at sentencing. Concur-ring Judge Graber wrote separately only to question whether Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir), cert. denied, 126 S.Ct. 442 (2005), was correct in holding broadly that the Supreme Court has failed to explain what standard applies to claims of ineffective assistance of counsel in the context of a non-capital sentence. Hall (author), Silverman, and Graber (concurring), Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the appellant; DAG V. Schulze of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) HABEAS CORPUS: Raley v. Ylst, 04-99008 (9th Cir. Apr. 14, 2006). Raley was convicted in California state court and sentenced to death for the kidnap and first-degree murder of one victim and the kidnap, oral copulation by force, and attempted murder of a second victim. In this habeas action, brought under 28 USC Sec. 2253, Raley challenged his conviction on the grounds that he received ineffective assistance of counsel both at the trial and penalty phases and that the jury committed prejudicial misconduct by considering extrinsic evidence during sentencing. In addition, he asserted that the district court erred in denying his request for an evidentiary hearing on his claim that the prosecutor failed to produce jail medical records to the defense as required under Brady v. Maryland, 373 US 83 (1963). Because the petitioner received constitutionally sufficient assistance of counsel, because deliberations that are intrinsic to the jury process are not grounds for reversal, and because the records in question were not Brady material, the USCA affirmed. Silverman, Graber (author), and Cliford, Circuit Judges. R. Bacon of Oakland, CA, for the petitioner; DAG V. Lee of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 47) HABEAS CORPUS: Davis v. Woodford, 05-55164 (9th Cir. Apr. 27, 2006). In 2000, a state court jury convicted Davis of being a felon in possession of a firearm and of evading a peace officer. The court sentenced him to 25 years to life in prison under California's Three Strikes Law, counting as eight "strikes" a 1986 California conviction that involved eight robberies. After unsuccessful state appeals and state habeas petitions, Davis filed this federal habeas petition. He appealed the district court's denial of habeas relief, arguing that the use of his 1986 conviction as eight separate "strikes" breached the 1986 plea agreement. The USCA agreed. In 1986 the state expressly agreed to treat the robbery conviction as only one "strike" for purposes of later recidivist sentencing. Thus, counting that conviction as eight "strikes" violated the terms of Davis's plea agreement. The USCA reversed and remanded with instructions to grant the writ of habeas corpus in this respect, subject to the state's resentencing Davis within a reasonable time. Graber (author), Wardlaw, and Rawlinson, Circuit Judges. K. Stern of Woodland Hills, CA, for the petitioner; DAG S. Taylor of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3
2) BANKRUPTCY: Hale v. U.S. Trustee,
05-35460 (9th Cir. Apr. 17, 2006) (unpublished). Hawkins, McKeown, and
Paez, 3)
COPYRIGHTS / ATTORNEYS' FEES: Invision Media Services, Inc. v. Lerner,
04-16206 (9th Cir. Apr. 13, 2006) (unpublished). Thompson , Berzon, and
Callahan, Circuit Judges. 4)
SECURITIES: Hakakha v. Peregrine Financial & Securities, 04-55395
(9th Cir. Apr. 17, 2006) (unpublished). Leavy and Rawlinson, Circuit Judges,
and Mahan, District Judges. 5) WHISTLEBLOWING
/ TORTIOUS DISCHARGE: Bielser v. Professional Systems Corp., 04-16344
(9th Cir. Apr. 18, 2006) (unpublished). Schroeder and Trott, Circuit Judges,
and Rhoades, District Judge. 6)
AMERICANS WITH DISABILITIES ACT: Pickern v. Pier 1 Imports, 04-17118
(9th Cir. Apr. 14, 2006) (unpublished). Hug, Alarcon, and McKeown Circuit
Judges. 7)
IMMIGRATION: Abdulnour v. Gonzales, 04-76022 (9th Cir. Apr. 17, 2006)
(unpublished). Hawkins, McKeown, and Paez, Circuit Judges. 8) IMMIGRATION: Tehrani v. Gonzales,
04-73470 (9th Cir. Apr. 27, 2006) (unpublished). Hawkins, McKeown, and
Paez, Circuit Judges. 9) IMMIGRATION: Ali
v. Gonzales, 03-71211 (9th Cir. Apr. 27, 2006) (unpublished).
Hug, Alarcon, and McKeown, Circuit Judges. |
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