Ponce v. Felker, No. 08-56218 (5-24-10) (Graber joined by B. Fletcher and Pregerson). The petitioner raised a confrontation claim. The state trial court had permitted testimony under the "forfeiture by wrongdoing" exception. However, this exception was narrowed by the Supremes in Giles v. California, 128 S. Ct. 2678 (2008) to apply only if the defendant specifically intended to prevent the witness from testifying, and not simply by the act of murder of the victim. So, does the petitioner get relief? No, because Giles established a new rule that did not apply retroactively. The state's interpretation, therefore, at the time of the appeal was reasonable in not requiring specific intent, and there was no contrary federal precedent. As such, petitioner loses under AEDPA.

Lunberry v. Hornbeak, No. 08-17576 (5-25-10) (Noonan joined by M. Smith, and concurrence by Hawkins). A cold case, false confessions, and a possible "other suspect" all lead the 9th to reverse a denial of a habaes petition and grant relief. The petitioner's husband was murdered in 1992, and she was found at a mall with kids. There was evidence pointing to drugs and a drug deal, but nothing came of it. Years later (2001), the case was reopened. The police interviewed petitioner quite forcefully and, after denying shooting her husband, she eventually said "yes," she did it. She then recanted. A defense expert opined that it was a false confession. However, the defense never called the expert. The trial court precluded evidence of another suspect, including a confession. The 9th granted relief on the preclusion of the other suspect's "confession" under Chambers. This violated the established due process rights to present a defense. Hawkins concurs to state that he would find IAC because of the failure to call the defense expert on false confessions.

Taylor v. Sisto, No. 09-15341 (5-25-10) (Noonan joined by Berzon; dissent by Ikuta). The 9th grants a petition on a conviction for assaulting a peace officer. The relief was granted on a voir dire issue: the state trial court gave a pre-instruction to the prospective jurors in which he told them to take their past experiences with how people act, behave, and why, their opinions, plus biases and prejudices, and place them in a box and to not bring them into the courtroom. The image of the box came up repeatedly during voir dire, in which jurors kept saying that they had trouble not referring to their past experiences. The problem with this is that it rendered the jurors automatons. The state courts deemed the pre-instruction "odd" but found no error. The 9th did. The 9th reasoned that jurors had to bring in their life experiences, and an instruction forbidding them not to make reference to their own backgrounds was wrong. A defendant was entitled to a juror with a range of diversity of experiences. In dissent, Ikuta argues that the petitioner had not objected, and that the pre-instruction did not run afoul of Supreme Court precedent.