Ford v. Pliler, No. 06-56092 (12-30-09). The Supreme Court in Pliler v. Ford, 542 U.S. 225 (2004) held that a court's failure to make clear the repercussion of dismissing a pro se's federal petition to return to state court for exhaustion purposes did not result in equitable tolling of the statute of limitations. In the remand, the petitioner argues that he was affirmatively misled by the court's discussion of the two options he could take. The district court agreed. On appeal, the 9th (Clifton joined by Hawkins) reverses and holds that the petitioner was not misled, and that the decision of the Supreme Court controls under the very facts presented. The panel also holds that in Brambles, 412 F.3d 1066 (9th Cir. 2005), the language of "dismiss without prejudice" was taken as accurate and not misleading even though the option was given after the AEDPA's statute had run. Dissenting, Berzon distinguishes the Supreme Court's decision. Berzon reads the Supreme Court decision as remanding to determine if the petitioner was affirmatively misled, and she would so hold. Berzon also believes that the panel in Brambles did not establish such a bright line per se rule as to the language and accuracy, and if it did, then en banc review is called for.

U.S. v. Anchrum, No. 09-30013 (12-30-09). The defendant here was convicted of trying to run down a DEA agent with his car. The jury instruction for assault on a federal officer stated that "the defendant used a motor vehicle." This was error, because it relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a dangerous weapon. The 9th, however, finds that the error was harmless. The 9th (Tallman joined by Beezer and Gould) looked at the evidence, and previous 9th decisions where a vehicle was held to be a dangerous weapon.

U.S. v. No Runner, No. 08-30449 (12-30-09). The 9th (Fisher joined by Kozinski and Paez) hold that a pretrial competency determination is a non-final order and that the collateral order doctrine does not apply. There is no jurisdiction. The pretrial order regarding competency does not completely resolve the issue, as facts may come up at trial that causes a reconsideration, and the issue can be reviewed after trial.