King v. Ryan, No. 06-55858 (5-5-09). In habeas, the 9th deals with stays-and-abeyances of unexhausted claims (the so-called Kelly procedure). The 9th (Berzon joined by Hawkins and Clifton) concludes that Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) survives Rhines v. Weber, 54 US 269 (2005). In Kelly, when a court faces a petition with exhausted and unexhausted claims, the court must notify the petitioner, the petitioner can chose to withdraw unexhausted claims and proceed back to state court, and the federal court stays and holds in abeyance the exhausted claims. Once the claims are exhausted, the petitioner returns to federal court and amends his petition. In Rhines, the Supremes allow a staying of a mixed petition and does not require the unexhausted claims to be dismissed while the petition seeks exhaustion. Rhines does require a showing of good cause for failure to exhaust. The 9th finds that the Kelly test still has applicability. In Kelly, and here, the mixed petition is not kept in federal court, but separated, and the petitioner has his unexhausted claims dismissed. In returning to state court, facing AEDPA's one year limitations bar, the petitioner risks that his now exhausted claims may not be timely. Still, he does not have to show good cause in Kelly as he would have to show in Rhines. Nonetheless, although Kelly should apply in this case, the petitioner still loses because his exhausted claims must now relate back to the pending claims in federal court, and the relate back must be to the those facts and the core of operative facts. That was not the case here.

U.S. v. Iribe, No. 07-50432 (5-6-09). Mexico not only regards the death penalty as not permissable under its constitution, but also life imprisonment. In this case, involving a treaty extradition, the defendant was suspected of kidnapping and killing an American citizen in an extortion plot. He was caught by Mexican authorities and the U.S. sought extradition. The Mexico courts permitted extradition, but not for any offense that had as a penalty life imprisonment. The defendant came here under the charge of conspiracy for maiming a person in a foreign country. Once back, he was charged in a superseding indictment with conspiracy to kidnap and attempted kidnapping. The Mexican government, by diplomatic note, agreed to such a change. The defendant plead mid-trial, and reserved this appeal. The 9th (Graber joined by Pregerson and Wardlaw) upheld the lawfulness of the new charge under the doctrine specialty. The 9th reasoned that conspiracy to kidnap came from the same facts as the conspiracy to maim; the sentence for conspiracy to kidnap was actually less than conspiracy to maim, and most important, the Mexican government did not object. The district court did not err in admitting the diplomatic note in as evidence. Finally, the two charges of conviction, conspiracy to kidnap and attempted kidnapping, were distinct. The 300-month sentence was affirmed.