U.S. v. Caruto, No. 07-50041 (5-12-08). The Supremes in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not. The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version. In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility. The 9th's holding is an extension of Doyle and finds support in precedent. A very good case for buttressing Miranda and Doyle.

Woods v. Carey, No. 05-55302 (5-12-08). The petitioner had a pending petition when he filed, pro se, another petition raising more issues. The court treated this as a successor petition, when the court should have treated it as a motion to amend the pending petition.

Miller v. Blackletter, No. 06-36090 (5-12-08). The 9th (O'Scannlain joined by Graber and Callahan) affirm the denial of a petition asserting that petitioner's right to counsel of choice was denied. The petitioner had committed a number of robberies, given a statement, and was looking at a lot of time. On the day of trial, he asked trial court to continue trial so that he could hire another lawyer. His father was willing to put up the money. The court inquired into the relationship between petitioner and appointed counsel, reviewed motions that counsel filed, and when faced with a 30-day continuance, denied the motion. The 9th here held that the state court did not abuse its discretion in balancing the right to counsel against concerns of fairness and scheduling as set forth by the Supremes in Gonzalez-Lopez.