U.S. v. Tapia, No. 09-50248 (12-8-11) (Reinhardt with Schroeder and Hudson, D.J.).

The Supremes reversed and remanded the 9th in Tapia, 131 S. Ct 2382 (2011), holding that a district court could not consider a defendant's rehabilitative needs in imposing a sentence of imprisonment. The remand was to determine whether the consideration constituted "plain error." The 9th holds that it does constitute plain error, especially as the error may have increased the sentence. The sentencing court imposed a sentence that afforded enough time to complete the BOP drug program (RDAP). In looking at plain error, the focus is on "reasonable probability" rather than the higher "more likely than not" standard (20899). The statements here by the district court as to giving her a chance to deal with substance abuse meets the "reasonable probability" standard.

Congratulations to Federal Defenders Michelle Betancourt, Doug Keller, and James Fife, Federal Defenders of San Diego.

Johnson v. Finn, No. 10-15641 (12-8-11) (Reinhardt with B. Fletcher and Tashima).

The 9th reverses a denial of a Batson claim in a habeas petition, and remands for the district court to conduct an evidentiary hearing or accept the magistrate court's credibility determinations. The petitioners raised a Batson challenge in state proceedings. When it reached federal court, the magistrate court conducted an evidentiary hearing and determined that the prosecutor had discriminated. The court made lengthy credibility conclusions. The district court rejected the conclusions and denied the petition. The 9th held this was error, because there has to be credibility determinations in jury selection, especially in a Batson challenge, and so determining credibility is a matter of constitutional due process. The 9th also finds that AEDPA deference does not apply because the state court apparently used a wrong legal standard, citing a case that equated "reasonable inference" with ""strong likelihood." This was incorrect. "Reasonable inference" is a lower standard. The 9th also stresses that if AEDPA does not apply, because , for example, of a wrong legal standard, then the Pinholster bar to new evidence also falls. See note 1.

Congratulations to AFPD David Porter and FPD Dan Broderick of the ED Calif FPD Ofc (Sacramento).