U.S. v. Onyesoh, No. 10-50480 (4-4-12) (Zouhary, D.J., with W. Fletcher and Fisher).

Under 18 USC 1029, involving access device fraud, the defendant gets an enhancement if he has a usuable access device (credit card). What if the credit card numbers were expired? The 9th holds that an expired access device is not "usable." The legislative history was bare on this issue, and the 9th looked to whether the actual card could be used. In this case, with 500 expired credit card numbers, a +12 level Guideline enhancement was at stake. The 9th vacated and remanded.

Schneider v. McDaniel, No. 09-16945 (Wallace with M. Smith; concurrence and dissent by Noonan).

In a habeas case, the 9th affirms the denial of a petition. AEDPA deference applies to the introduction of evidence and many claims did not relate back. The 9th also holds that the federal period under AEDPA was not tolled despite the petitioner's mental health issues at the time. The petitioner could have gone back to state court. Noonan, dissenting from this, argues that the petitioner was too mentally ill to have been able to pursue his claims federally or state.