Stanley v. Cullen, No. 08-99026 (1-31-11) (W. Fletcher with Tallman and Bybee). In this capital habeas, the petitioner raises issues that revolve around his competency. Was he competent at the time? Should his counsel have raised competency at the guilt phase? Should the court sua sponte have delved into the competency issue? Lastly, was it proper to remand to the state court to determine whether a retrial on competency was proper given the finding of juror misconduct during the state competency trial (separate from the capital trial). The 9th denied the petitioner's claims revolving around competency. Focusing on what the court could know, the 9th concluded that the state court judge did not err in not raising competency. The petitioner, at the time, presented himself as competent. The counsel likewise at the time were not ineffective for not raising competency earlier (they raised it at penalty and not guilt). The manifestation occurred later. The procedure the district court approved -- remanding to the state court to determine if a competency retrial was feasible -- was acceptable, and the decision did not have to be made by the federal court.

U.S. v. Morris, No. 10-10009 (2-2-11) (Per curiam with Wallace, Noonan, and Silverman). The ground-hog of due process emerged, saw the shadow of Bordenkircher v. Hayes, 434 U.S. 357 (1978), retreated, and predicted a continued long winter of take-it-or-leave-it pleas. The defendant here was given a Hobson's choice: not litigate the case, plea to a 10-year mandatory minimum, and testify at an upcoming murder and drug trial of a gang leader OR the government would file a 851 drug enhancement and he would face a 20-year mandatory minimum. The time for the deal lapsed, and the enhancement was filed. The district court struck the enhancement information because the deal "offended due process." The defendant had to give up most of his rights; and this so-called deal had no give-and-take. On the government's appeal, the 9th found this case was indistinguishable from Bordenkircher. In Bordenkircher, the Supremes held that a prosecutor's decision to carry out a threat made during plea negotiations does not violate due process. In Bordenkircher, the threat was a recidivist enhancement. Here, it was the same, along with the added condition of testifying, but that did not change the analysis. The government can make its best offer, with conditions, up front, which is what happened here. Due process was not violated.