US v. Staten, No. 05-30055 (6-7-06). This is an interesting sentencing case. It involves a meth lab in a motel (a new selection in the mini-bar?), and an enhancement for substantial risk (+15 levels). The offense occurred pre-Booker/post-Blakely. The 9th holds again that Dupas, 419 F.3d at 919, forecloses the argument as Dupas stated that application of Booker's remedy does not violate retroactive due process concerns. The 9th does remand, though, because the district court, in deciding the evidentiary issue, used a general approach (i.e. all meth labs = substantial risk) rather than the specific facts in this particular case, where is contested that a risk was present. The 9th also reiterated that a clear and convincing standard of proof is used when the adjustment is a cross-reference, relevant conduct, or is a significant adjustment (DeMeza and Hooper used 4 levels). The 9th avoids the reasonable doubt issue (both for the "window" and because if we go to clear and convincing, why not reasonable doubt) but it is one that will be back.

Stanley (Leavitt) v. Woodford, No. 04-16255 (6-7-06). This is an unusual habeas interlocutory appeal, where the district court imposed a fine upon Jack Leavitt, who sought to represent the petitioner. The petitioner had vacillated with counsel ove r the years, and finally was represented by the FPD office of the E.D. Ca (Sacramento). The court would not entertain another counsel change. the petitioner sought to change lawyers again,back to Leavit. This was denied. Subsequently, Leavitt continued representing petitioner in the pleadings. This violated the court's clear instructions to Leavitt not to hold himself out as representing petitioner. The court ordered the fine, which is the amount the FPD spent in responding. Leavitt sought review, and here, the 9th held that it lacked jurisdiction to hear an interlocutory appeal on sanctions pursuant to the Supremes in Cunningham.

Congrats (I think) to Tim Schardl, AFPD of the ED Ca,and Mark Olive for the result.

Mendoza v. Carey, No. 04-56733 (6-7-06). The 9th found a possible equitable tolling of AEDPA when the law library in prison lacked Spanish lawbooks and the petitioner alleges that he is Spanish speaking and lacks English ability. Dissenting, Kleinfeld focuses on the lateness of the petition and would deny relief..