U.S. v. Lightfoot, No. 09-30063 (11-30-10) (Fernandez with B. Fletcher and Bybee). The 9th holds that an appeal waiver does not bar reconsideration of a reduced guideline range as a result of a retroactive application. The defendant had plead guilty to felonies, one of which was distribution of crack. The plea had the now pervasive appeal and collateral attack waiver. The 9th reasoned that the waiver was inapplicable because it was not considered, nor anticipated, and ambiguous. The 9th agreed with the 5th Circuit on this. Yet, though defendant got to appeal, he loses on the merits. The district court was within its discretion in denying a sentence reduction based on the danger that defendant presented. The district did not abuse its discretion.

Maxwell v. Roe, No. 06-56093 (11-30-10) (Paez with Pregerson and Mahan, D.J., D. Nev.). The petitioner gets relief. A spate of killings of homeless men in the later 1970's led to the killer being dubbed "the Skid Row Stabber." The petitioner was arrested and charged capitally with ten murders. The only real evidence was his palm print on a park bench close by one of the killings, although the evidence was that he frequently hung out by that bench. Other evidence was disputed or unclear (like shoe prints). The identifications were inconclusive. However, there was an infamous L.A. jailhouse snitch (Storch) who said that petitioner had confessed. The state courts later agreed that the informant was a liar, but decided that he had not lied this time. He was supposedly just beginning his career as a perjurer. The 9th first found that the petition was timely and not barred by AEDPA. Any delay was tolled because of the voluminous record and length of time of the process. The 9th then found that informant had lied, and that it was unreasonable to conclude that he did not. His lies were all over the record, and they violated due process. The lies were not harmless. The 9th also found violations of Brady by the state as to the plea deal with the informant, and these were not harmless. The petition must be granted.