Raj v. Daniels, No. 07-35090 (2-20-08). The BOP strikes out again in its efforts to restrict early release to certain prisoners who completed a special inmate drug abuse program. The program was for prisoners convicted of non-violent offenses. For 12 years, the BOP tried to exclude inmates who had used or possessed a firearm as being violent. The first time, BOP adopted an impermissible definition of "crime of violence;" the second attempt was struck on notice and comment grounds (procedural). This last attempt fails under the APA. The 9th (Reinhardt joined by Hall and Smith) strikes down the BOP regulation for failing to set forth a rational rule. The BOP tried to justify the rule under the rationale that felons who had used guns are more likely to be a danger in the community. This rationale however was post hoc, and was not presented to the agency while the rule was being formulated. The second rationale, that exclusion was necessary to create uniformity amongst the different laws and definitions across the circuits was arbitrary and capricious. The agency could just as well have included such inmates. The reason that BOP chose one over the other (mean spiritedness?) was never explained or justified. Thus, it violated the APA.

Congratulations to AFPD Steve Sady of D. Oregon, who has litigated this issue over the 12 years.

Cook v. Schriro, No. 06-99005 (2-20-08). The 9th affirms the denial of a petition in a capital case. The petitioner represented himself, and the Faretta waiver was knowingly and proper. Bad things flowed as a result, such as preserving most trial and sentencing issues. The petitioner's attempt to raise IAC in the appellate context was also denied. The 9th held that the prosecutor's rebuttal was proper, and did not comment on silence. Lastly, there was no evidence to support the giving of a second degree jury instruction.

U.S. v. Murphy, No. 06-30582 (2-20-08). The 9th (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect. The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep. The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception. The 9th held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.