Thursday, September 14, 2006

Comer v. Schiriro, No. 98-99003 (9-13-06). Petitioner wants to die. He asks to drop his petition and appeal, and to have the state execute the capital sentence. The district court found him competent after an evidentiary hearing. The 9th (Ferguson) acknowledged this competency, but held that his petition deserved a hearing given that "death is different." The 9th distinguished other cases, notably Gilmore, where petitioner had waived appeal, as standing cases. Turning to the merits, the 9th affirmed the conviction, but granted relief on the sentencing claim. Petitioner had not appeared for his trial, waiving presence, but for sentencing, he was dragged and beaten by prison guards, and appeared shackled, naked, and bleeding and exhausted. Even though it was judge sentencing (pre-Ring), the 9th acknowledged that judges are only human, and the appearance of petitioner, and the inhumanity, must have affected the process. Rymer, strongly dissenting, accused the majority of "raw imposition of judicial power." She argued that because petitioner was competent to waive his appeal, that was the end of the case. The 9th has no authority to go searching for issues, or rendering advisory opinions.

Stephens v. Herrera, No. 04-56232 (9-13-06). The 9th dismissed the petition because petitioner failed to state an "actual innocence" claim to gain the exception to the successor petition rule. Here, petitioner had filed a number of claims. each was denied. His latest attempt tried to get a jury instruction error to be an actual innocence. It didn't wash.

US v. Rowland, No. 05-10375 (9-13-06). This case (and the 292 mos. sentence) turns on whether Guam officials had reasonable suspicion to stop and question individuals that they reasonably suspect are violating Guam's importation laws, without regard to whether the flight originated domestically or in a foreign country. The 9th held that the officers were enforcing Guam's own laws against drug importation, and that importation was not confined to foreign flights. The police had enough information to stop and question based on the local laws that is read broadly as to how the drugs are brought in.

US v. Stevens, No. 05-30597 (9-13-06). The 9th (Goodwin) vacates a 30 year sentence for receipt and possession of child porn. The 9th held that that the 2004 amendment to the Guidelines that expanded the definition of "minor" from someone younger than 18 to include someone who was posing as a minor was a substantive change. Here, the defendant had online conversations and sent porn to an agent posing as a minor, and not to minors themselves. Graeber dissented, arguing that the amendment expanding the definition of minor was a clarification rather than substantive, and therefore not ex post facto it.


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