Cudjo v. Ayers, No. 08-99028 (9-28-12)(N. Smith with Kozinski; dissent by O'Scannlain).

In this death penalty habeas, the 9th grants relief because the state courts wrongly and unreasonably barred the petitioner from introducing trustworthy and exculpatory testimony that his brother, and not him, committed the murder. The testimony was a jail house confession, which the state trial judge kept out on reliability grounds. Under Chambers v. Mississippi, 410 US 284 (1973), the Court held that a defendant must be given a fair opportunity to defend himself, and allowed a statement to be admitted that the state court had barred on supposed unreliable hearsay grounds. The same here. The state courts were unreasonable in barring the confession, which could be attacked for credibility, but that was a jury decision. Oh yes, the fact that the prosecutor used racial prejudice in his closing just added to the prejudice. O'Scannlain, dissenting, would find that Chambers is an exception, and not really applicable here, in light of the other evidence. Under AEDPA, deference must be given to the state.

Congratulations to AFPD John Littrell, Deputy FPD, FPD Office Calif. Central (Los Angeles).

Miles v. Martel, No. 10-15633 (9-28-12)(B. Fletcher with Hug and Paez).

The 9th grants a petition and remands for an evidentiary hearing to determine whether the petitioner received IAC in his rejecting a plea offer. The petition, a sympathetic military vet, faced a three-strike life sentence for passing a fictitious check of around $470. He claims his lawyer advised him to reject a six year plea offer because he could show that the priors could be dismissed. He was wrong, oh so wrong, and the petitioner got 25 to life. The hearing, under Lafler v. Cooper, 132 S. Ct. 1376 (2012), is to determine whether counsel advised petitioner, and whether his advice was ineffective.

U.S. v. HOS, No. 11-10115 (9-28-12)(Korman, Sr. D.J., EDNY, with Kozinski and Callahan).

The district court had found the juvenile to be a juvenile, but left open whether the court could reconsider in the interests of justice. The gov't then moved to transfer, granted by the court, and then reversed and remanded by the 9th. Once back, the district court then found that the defendant was indeed an adult based upon a Mexican birth certificate provided by the gov't, finding that it was in the interests of justice. This was not an abuse of discretion. The 9th also held that this issue was appropriate for interlocutory consideration.