Monday, June 11, 2012

Thompson v. Lea, No. 09-55753 (6-7-12) (Gould with Pregerson; dissent by Tallman).
It was an open and shut case, and then it was a re-opened and shut case.  This saves the petition from being time barred.  The state petitioner raised Blakely issues before the  California Supreme Court.  It denied review, but indicated that it could reconsider in light of a pending Supreme Court case reviewing the issue (Cunningham).  After Cunningham came out, the state supreme court looked at the issue in petitioner's appeal, and again denied.  The 9th holds that this second look was a reopening, and therefore the time tolled and began running when denied.  Tallman dissented, arguing that the second look was not really a re-opening, but just a reaffirmance.

U.S. v. Jingles, No. 08-15634 (6-8-12) (Wallace with Nelson and Bea).
The petitioner is facing an aggregated term of 6240 months (quick, what will he get in "good time"?).  His 2255 challenges counts based on the distinction between variance and constructive amendment.  An interesting discussion between the two but in the end, meaningless, because the claims raised were deemed identical to the claims raised on direct appeal, and therefore foreclosed by law of the case doctrine.


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