Wednesday, March 21, 2007

Comer v. Schiro, No. 98-99003 (3-15-07). The 9th (en banc and per curiam) ruled that because petitioner Comer "is competent and has voluntarily decided to waive further proceedings, we grant his pro se motions to waive further proceedings, to terminate representation by habeas counsel and for dismissal of his appeal." The dissent by Pregerson sums it up: "The due process violation occurred at the sentencing hearing held by the Arizona trial judge who imposed the penalty of death on a man who was naked, bleeding, shackled, exhausted and semiconscious." Pregerson continues: "Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson's [panel] opinion only requires that the sentence of death be pronounced to an understanding human, not a discarded piece of flesh."

US v. Layu, No. 05-10815 (3-19-07). The 9th rejects a commerce clause challenge to 922(a)(5)(alien in possession). The 9th quickly disposes of the "affecting commerce" argument (raised to perserve the issue), but spent more time on whether the defendant was here illegally, before adopting a definition from the friendly ATF that is broad in requiring nonimmigrant or legal status. The 9th remands on a sentencing issue.

US v. Nasser, No. 05-10466 (3-20-07). A 6'9" Border Patrol agent stands by a deserted road, with patrol cars pulled off to one side, lights flashing, and two other vehicles also pulled over, with individuals under arrest. A car comes up on a two-lane highway, and the agent shines a light into the windshield, and keeps it there as the car slows, goes past, and 15 feet away, stops. The agents then run up, and yank the keys away and find illegal aliens. Was this voluntary? The 9th thinks it is (Kleinfeld joined by Trott). To the 9th, the driver (an Iraqi with illegal aliens) voluntarily stopped, and was not pulled over, or seized. The 9th assumes, one guesses, that the car should have just driven on by. In dissent, Ferguson decries this finding, arguing that the car was stopped and the driver seized by these actions and the yanking of keys.


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