Circuit Watcher

07-1526 Delaney v. Bartee
Before Boudin, Chief Judge. Wallace,¹ Senior Circuit Judge, and Howard, Circuit Judge.
WALLACE, Senior Circuit Judge. John Delaney appeals from the district court’s order denying his habeas corpus petition. He argues that the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest. The district court held that his claim was procedurally defaulted under the Massachusetts contemporaneous objection rule and therefore not subject to habeas review. On appeal, Delaney argues (1) that his claim was not procedurally barred, and (2) that the state court’s decision on the merits was contrary to or an unreasonable application of Supreme Court law. Delaney presents a colorable argument as to each of these claims. But the decisive issue before us is whether he has failed to demonstrate that the prosecutor’s comments “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks omitted), quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). … The district court’s denial of Delaney’s petition is AFFIRMED. Delaney v. Bartee.

1. Of the Ninth Circuit, sitting by designation. [↩]

06-35759 Whaley v. Belleque
Before: Stephen Reinhardt, Circuit Judge; Cynthia Holcomb Hall, Senior Circuit Judge; Milan D. Smith, Jr., Circuit Judge.
REINHARDT, Circuit Judge: Leslie Whaley has shuttled in and out of habeas corpus and parole proceedings since 1993. In one of the most recent iterations of this procedure, the state represented in an Oregon appellate court proceeding that his constitutional challenge to his parole conditions was moot under Oregon law because he had been removed from parole and reincarcerated. Although the parole revocation was based on the very conditions that he contends are unconstitutional, Whaley did not challenge that assertion, and the Oregon court, accordingly, dismissed the appeal. The state now argues, citing Oregon case law, that Whaley’s constitutional claims were not moot. Therefore, it asserts, he was obligated to appeal the state court’s dismissal to the Oregon Supreme Court, and his failure to do so constitutes a procedural default. We hold that under Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), the state is judicially estopped from making this argument in federal court, and remand this matter to the district court to consider the merits of Whaley’s constitutional claims. … Whaley v. Belleque.

06-8064 Yellowbear v. Wyoming Atty Gen.
Before HENRY, Chief Judge, SEYMOUR, and GORSUCH, Circuit Judges.
SEYMOUR, Circuit Judge.
Andrew John Yellowbear, Jr., appeals the district court’s denial of his habeas corpus petition filed under 28 U.S.C. § 2241. We reverse and remand for further proceedings.
. I
On July 2, 2004, Andrew John Yellowbear, Jr., an enrolled member of the Northern Arapaho Tribe, was arrested and charged in state court with first-degree murder in Riverton, Wyoming. Prior to trial, Mr. Yellowbear filed a pro se petition in federal district court seeking a writ of habeas corpus … Yellowbear v. Wyoming Atty Gen.

06-55470 Harrison v. Ollison
Before: J. Clifford Wallace, Thomas G. Nelson, and Sandra S. Ikuta, Circuit Judges.
IKUTA, Circuit Judge: A federal prisoner challenging the legality of a sentence must generally do so by a motion pursuant to 28 U.S.C. § 2255. However, when a motion under § 2255 is “inadequate or ineffective to test the legality” of a prisoner’s detention, see id., a prisoner may bring a habeas petition under 28 U.S.C. § 2241. This appeal requires us to determine whether the petitioner, Dave Harrison, was entitled to bring his habeas petition under § 2241. Before reaching that question, we must determine whether Harrison needs a certificate of appealability, see 28 U.S.C. § 2253(c), before he can appeal the district court’s dismissal of his § 2241 petition for lack of jurisdiction. … we affirm the decision of the district court dismissing Harrison’s petition for lack of jurisdiction. Harrison v. Ollison.

07-1748 Carrascosa v. McGuire
Before: FUENTES, JORDAN, Circuit Judges and O’NEILL¹, District Judge.
JORDAN, Circuit Judge. Maria José Carrascosa appeals from the District Court’s denial and dismissal with prejudice of her petition for a writ of habeas corpus, which sought to end her detention in the Bergen County, New Jersey jail for violating a civil contempt order issued by the Superior Court of New Jersey. At the heart of this sad case, which raises questions of international and federal law under the Hague Convention’s Civil Aspects of International Child Abduction, T.I.A.S. No. 11670 (Nov. 7, 1988) (the “Hague Convention”), is a custody battle over a young girl who has not seen either of her parents in years. Because we agree with the skillful analysis of the District Court, we must affirm. … Carrascosa v. McGuire.

1. Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern District of Pennsylvania, sitting by designation. [↩]

07-5258 Belbacha v. Bush
Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit Judges.
GINSBURG, Circuit Judge: In 2005 Ahmed Belbacha, an Algerian national, petitioned the district court for a writ of habeas corpus in order to challenge his detention at Guantánamo Bay, Cuba. In July 2007, with his petition still pending, he sought interim relief barring his transfer to Algeria on the ground that he is likely to be tortured by the government of Algeria and by an extremist organization that has threatened him in the past. The district court declined preliminarily to bar Belbacha’s transfer on the ground it lacked the power so to do, Belbacha v. Bush, No. 05-2349 (July 27, 2007), citing the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600, and our decision in Boumediene v. Bush, 476 F.3d 981 (2007), cert. granted, 127 S. Ct. 3078 (June 29, 2007), in which we upheld the constitutionality of the MCA provision removing the courts’ jurisdiction over detainees’ habeas petitions.
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Belbacha noticed an appeal and simultaneously asked this court to bar his transfer pending its resolution. A motions panel denied Belbacha’s request for a stay but ordered the case heard on an expedited basis. Belbacha, No. 07-5258 (Aug. 2, 2007). After hearing oral argument, this panel temporarily enjoined his transfer in order to preserve our jurisdiction over the appeal. We now remand this matter to the district court for further proceedings. …
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RANDOLPH, Circuit Judge, dissenting: Students of federal courts will be surprised to learn that district judges have jurisdiction to issue preliminary injunctions in cases in which they have no jurisdiction to issue permanent injunctions. That is the majority’s position here. … Belbacha v. Bush

07-1112 Steele v. U.S.
U.S. District Court for the Southern District of Iowa – Des Moines
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge, and Hansen, Circuit Judge]
Prisoner case – habeas. Due process does not guarantee a constitutional
right to counsel for a litigant seeking to file a certiorari petition to the
Supreme Court of the United States, and counsel’s failure to file a
petition following Steele’s direct appeal did not constitute ineffective
assistance of counsel; alleged violations of the court’s Amended Criminal
Justice Act Plan and Rule 44(a) did not deprive Steele of due process of
law and did not give rise to a claim for ineffective assistance of counsel;
even if a right to have counsel file a certiorari petition existed, Steele
failed to show that she suffered prejudice from her counsel’s failure to
file a petition.

07-55353 Habeas Manta v. Chertoff
Before: Jerome Farris and Milan D. Smith, Jr., Circuit Judges, and H. Russel Holland,¹ District Judge.
MILAN D. SMITH, JR., Circuit Judge: Petitioner-Appellant Christina Manta appeals the dismissal of her petition for a writ of habeas corpus. Since 1999, Greece has sought the extradition of Crystalla Kyriakidou pursuant to the Treaty of Extradition Between the United States of America and the Hellenic Republic (the Treaty). The United States filed a Complaint for Extradition against Kyriakidou, whom the government believes is the same person as Christina Manta. After an extradition hearing, a magistrate judge granted the request for extradition based on two foreign charges of fraud. Seeking relief from the extradition order, Manta petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2241. We affirm the district court’s dismissal of Manta’s habeas petition. … Manta v. Chertoff.

1. The Honorable H. Russel Holland, Senior United States District Judge for the District of Alaska, sitting by designation. [↩]

04-11711 Lawhorn v. Allen
BEFORE: BIRCH, BARKETT and WILSON, Circuit Judges.
BIRCH, Circuit Judge: An Alabama jury found petitioner James Charles Lawhorn (“Lawhorn”) guilty of capital murder and recommended that he be sentenced to death. The state circuit court judge adopted that recommendation and sentenced Lawhorn to death. After exhausting his state court remedies, Lawhorn filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court granted in part and denied in part Lawhorn’s habeas petition, and the state appealed.1 After a thorough review of the record, and having the benefit of oral argument and the parties’ briefs, we REVERSE the district court’s judgment granting Lawhorn habeas relief by suppressing his confession, and AFFIRM the district court’s judgment granting Lawhorn habeas relief on the issue of ineffective assistance of counsel. … Lawhorn v. Allen.

07-1014 Kilgore v. Estep
Before LUCERO, MURPHY, and HARTZ, Circuit Judges.
LUCERO, Circuit Judge. Kyle Keith Kilgore appeals the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition. The court dismissed his petition without prejudice because Kilgore failed to comply with two prior orders directing him to show that his petition was timely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See § 2244(d). We granted a Certificate of Appealability (“COA”) on one issue: whether, in light of Jones v. Bock, 127 S. Ct. 910 (2007), a district court can require a state habeas petitioner to establish in his or her § 2254 application that the application is timely. We hold that the district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we REVERSE and REMAND this case to the district court for further consideration consistent with this opinion. … Kilgore v. Estep.

06-3052 Frederick Revels v. Mary Sanders
U.S. District Court for the Western District of Missouri – Kansas City
[PUBLISHED] [Shepherd, Author, with Bright and Melloy, Circuit
Judges]
Prisoner case – habeas. State court decision affirming a trial court’s
denial of Revels’ motion for unconditional release was contrary to the
Supreme Court of the United States’ decision in Foucha v. Louisiana, 504
U.S. 71 (1992) in that it required Revels to prove both a lack of present
mental illness and dangerousness; the court’s decision further violated the
substantive protections of the Due Process Clause by also requiring
Revels to show the absence of a probability of a future mental illness and
future dangerousness; the case is reversed and remanded with instructions
that the district court order that Revels be released from state custody
unless the State of Missouri affords him a new hearing within a
reasonable time as set by the district court.