Bills v. Clark, No. 08-17517 (12-8-10) (Tymkovich with Hawkins and Fisher). The 9th, in an opinion written by a 10th Circuit judge, importantly finds that mental impairment can justify equitable tolling. As the opinion states: "We conclude equitable tolling is permissible when a petitioner can show a mental impairment so severe that the petitioner was unable to personally either understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the circumstances to meet the filing requirements despite petitioner's diligence." The case arises from the state petitioner's untimely filing of his petition. Evidence presented showed an inability to read or write, neurological deficiencies, borderline to mild retardation, concurrent psychosis, and memory issues. Yet, he represented himself previously, filed some challenges, and could, in one court's reasoning, have relied on jailhouse lawyers. The 9th discusses the standard for competency, and the recognition of equitable tolling by the Supremes. It recognizes, and this is critical, that equitable tolling, like all equitable remedies, is very case- and fact-specific. The test here, as outlined above, is two-pronged. One, does the petitioner suffer from a mental impairment that caused him not to understand that he needed to file or prepare a habeas petition, and did that impairment make it impossible to meet the filing requirements under a totality of circumstances analysis? The 9th vacated and remanded for the court to reassess under this standard.

Moorman v. Schriro, No. 08-99035 (12-8-10) (Schroeder with McKeown and Rawlinson). In this capital case, the 9th affirms the district court's denial of the petition. This was a gruesome murder, in which the petitioner, on a furlough from state prison, met up with his adoptive mother, booked a motel room, and preceded to stab her, and then dismember her. Petitioner had a horrendous childhood, with allegations of sexual abuse by the adoptive mother, and he suffered from numerous mental issues. The petitioner alleged IAC in counsel's failure to raise on appeal trial counsel's decision not to ask for lesser included instructions (second degree or manslaughter), failure to argue impulsively as an alternative theory of defense, and failure to present more mitigation. The 9th found that the failure to ask for lessers was a strategic decision (factually so found by the state courts), that the alternative theory of impulse behavior was not a legal defense at the time, and that mitigation was presented, and a course would be hard pressed to find prejudice.

U.S. v. Caruto, No. 09-50309 (12-8-10) (Clifton with Bybee and Korman, Sr. D.J., ED NY). It is a rare decision that deals with the grand jury. Here is one. The defendant was convicted of drug offenses. The conviction was appealed, and reversed based on arguments made about defendant's omissions in her post-arrest statement. The defendant was retried, and convicted again. On appeal, the defendant argues that the instructions given to the grand jury were flawed. It seems that the court, in instructing the grand jury, went off script or misspoke during the instructions. In one instruction, the court stated that the grand jury must not concern itself with punishment whatsoever. The instruction earlier said "should not." The 9th found this inconsequential. The grand jury had been instructed with "should not." Another time, the court stated that the grand jury could not consider the wisdom of the laws, and made reference to the ballot box as an appropriate vehicle to do so. This was deemed harmless, and the 9th commented that the defendant, charged with importing over 34 kilos of drugs, was not exactly a sympathetic figure that the grand jury would have questioned the law's wisdom. At another time, the court stated that the grand jury was a branch of the U.S. Attorney's Office (editorial comment: true?). The court quickly corrected itself, and emphasized that the grand jury was not a part of the U.S. Attorney or a prosecutor, but independent. The 9th found that the court cleaned this up too, without prejudice. Finally, the court discussed probable cause and how a magistrate could have found it at the preliminary hearing. The 9th considered this attempt to explain a case's timeline a bit confusing, but found that it was cleared up with the court's correct admonishment that the grand jury had to determine probable cause and under what standard. The 9th also found that the grand jury voir dire was not required to be disclosed. The conviction was affirmed. The case does survey the role of the grand jury, with some horatory language about it standing between the government and malicious prosecution. It also deals with the protections given to the grand jury process and how a trial jury excuses almost all mistakes.