Waldrip v. Hall, No. 07-55512 (11-18-08). The petitioner's petition was denied in state court. Eight months lapsed before he subsequently filed in a higher state court, which denied his petition without comment on its timeliness. The 9th, taking its lead from the Supremes in Evans v. Clark, 546 US 189 (2006), held that the time gap of in excess of six months was too long to assume blanket tolling, absent sufficient justification based on unique facts. The state supreme court (California) required a filing of a post-conviction petition seeking review of an adverse lower court decision within a reasonable time. The Supremes in Evans read the state supreme's court requirement for a reasonable time to file as not being in excess of six months. Here it was. Of note, the 9th also affirmed the allowance of the state to amend its answer to reflect Evans, and the 9th excused the state's not challenging the issue as having been fruitless.

U.S. v. Nevis, No. 06-50485 (11-20-08). The 9th does not take a conviction laying down, or asleep. The defendant here was asleep on a couch, with a gun on his lap, one leaning against the couch, and drugs, cell phone, and currency on a coffee table. The police burst in on the defendant, in this Apt. 6, while chasing another gang member in a high crime area. The door was open. The defendant was startled, put his hands up, and said something to the effect of 'they left me here.' The defendant was a felon, and so charged with being a prohibited possessor. He was convicted. The 9th reversed for insufficiency of evidence (!) (Paez joined by T. Nelson). Yes, the guns were on the defendant, but he said that he had gotten drunk at a baby shower (!), and was taken to the apartment to sleep it off (six hours earlier). The police had no tie between the contraband, or cell phone, and the defendant; he was a supposed visitor to the apartment, admittedly in a high crime area, and there was no evidence presented as to his knowledge of the weapon (as opposed to constructive or actual possession). The evidence of someone leaving weapons was every bit as viable as the possession. The 9th stresses the lack of any connection. It distinguishes those cases where guns in cars and homes could be tied to the defendant's knowledge. Bybee, dissenting, is amazed at the result, stressing that the standard is in the light most favorable to the government, and arguing that any other explanation was unbelievable. A very good case as to sufficiency and knowledge.

Congratulations to AFPD Elizabeth Newman on the FPD Office (L.A.).

Doody v. Schriro, No. 06-1716 (11-20-08). This is a petition arising from the cold-blooded murder of several Buddhist monks in their monastery outide Phoenix years ago. False confessions had been wrung out of several suspects, before the police turned to the petitioner here, a 17-year old Thai American. He was interrogated for six hours, with 45 minutes of hard questioning and demands that he answer. The 8th finds that the Miranda warnings were sufficient, BUT the 9th holds that the confession itself was involuntary. The petitioner was young, the Miranda warnings were soft-pedaled, and presented as being unimportant, and the questioning was relentless and demanding for hours and especially in the last 45 minutes, despite the petitioner's silence. The 9th (Berzon joined by B. Fletcher and Rawlison) discuss the distinction between Miranda protections, and voluntariness. The 9th finds that the state supreme court's holding as to Miranda was deserving of deference, but that its voluntariness finding was unreasonable. The 9th focuses on the factors involved, including youth, inexperience with the criminal justice system, pressure, tone, and relentlessness. A significant decision.