U.S. v. Reveles, No. 10-30313 (10-24-11) (Guilford, D.J., with Noonan and M. Smith).

The defendant was driving while impaired on a military base. He was given a non-judicial punishment by the Navy under the Military Code. After getting fined, reduced in rank, and other punishment, he then faced a criminal prosecution. A double jeopardy challenge was raised. The 9th held that there was no double jeopardy bar because the military punishment was non-judicial punishment, and not criminal. Looking at congressional intent, Congress did not mean to impose criminal punishment under the provision of the Military Code. The penalties do smack of punishment, but do not rise to criminal because of the limited cap or max and limited punitive intent. Since the first prosecution was not criminal, there is no bar.

Doe v. Busby, No. 08-55165 (10-24-11) (M. Smith with Pregerson and Beezer).

The 9th affirmed the district court's granting of habeas relief. The 9th rejected the State's argument against equitable tolling. The State acknowledges that counsel was incompetent, abandoned the client, and the client tried to file a petition, but argued that the petitioner should have known that counsel was incompetent. Really, that was the argument. It was given short shrift. The 9th then held that there was constitutional error because, under California's CALJIC No. 2.50.01, the state argued that murder and domestic violence could be proved by the jury finding unadjudicated prior acts of domestic violence by a preponderance of proof. Under precedent, Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004), this state instruction has been held unconstitutional for this lessening of proof beyond a reasonable doubt. A general instruction as to the State's requirement to prove each element beyond a reasonable doubt does not save the conviction.