US v. Weaver, No. 04-50608 (1-10-06). This is a car search case arising under Belton. The defendant was driving and subsequently stopped when a police officer recognized a passenger as having outstanding warrants. The passenger was arrested. The defendant (the driver) refused to grant consent. The officer informed her that he would search incident to arrest, and summoned a third officer for security and under procedure. This wait took 15 minutes, during which, according the defendant, "time froze." The 9th however said that objectively, the 15 minutes still fell within the "contemporaneous" scope of the car search. It fell between the 5 minute delay approved in McLaughlin and the 30 to 45 minute delay in Vasey. The 9th stresses, though, that time by itself is never dispositive, but is a factor (see note 1). The 9th (Pregerson) ends the opinion by reiterating that the Belton rule (search of car incident to arrest for officer safety) is broader than its stated rationale. The arrestee was handcuffed and the others secured before the search was conducted. The 9th joins other courts in "respectfully suggest[ing] that the Supreme Court may wish to re-examine this issue." Take this as a hint for certs on the Belton issue.

Hanson v. Mahoney, No. 02-35795 (1-10-06). Can a Magistrate Judge issue a COA? The 9th said "yes." The judge has authority under the Magistrate's Act and although there is plenty of ambiguity in the COA authorizing statute (references to "circuit justices and judges"), nonetheless, prior precedent in the 9th and other circuits (e.g. the 7th) find the power. On the merits, the petitioner, who has a claim for actual innocence, nonetheless defaulted on a Weaver (jury unanimity) claim in Montana, and so is procedurally barred from consideration. The cases occurred before his direct appeal, and he should have raised them Moreover, strong evidence of innocence (this was a sex abuse case, and the victim's mother had left vitriolic messages on the phone vowing that she would do anything to get the petitioner) were either procedurally defaulted or unexhausted, and could not now be considered. Judge B. Fletcher wrote the opinion, and then added a special concurrence, in which she lamented the procedural hurdles that prevented the 9th from considering this compelling evidence, and ruing the fact that because the petitioner still professed his innocence, he would not be paroled. It is in a Gordian knot of procedure that courts have entangled the merits of a claim. Judge Fletcher also suggested to the state that may consider some alternative, but, as she wrote, "The State's stringent and unbending approach, however unfortunate, is unremediable."