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Sechrest v. Ignacio, No. 04-99004 (12-5-08). The 9th (Pregerson joined by W. Fletcher and Berzon) finds prosecutorial misconduct by the state prosecutor. In a capital case, the prosecutor argued that the state board of parole would release the petitioner if he did not receive death. The 9th admonished the prosecutor for such misstatements and granted relief from the death sentence. The 9th also reversed itself in a prior memorandum decision in holding that certain claims were precluded; a subsequent 9th en banc opinion held that the state supreme court had not been clear and consistent in enforcing procedural waiver in this pre-AEDPA case. The previous claims, deemed waived, are reinstated. The 9th did not find Miranda violations, as the petitioner gave ambiguous responses to questions whether he wanted to talk, and the officers asked appropriate follow up questions.

Chambers v. McDaniel, No. 07-15773 (12-9-08). The 9th (Timlin joined by Graber) grant a petition from a Nevada petitioner for a due process failure in the jury instruction for first-degree murder. The petitioner was convicted of first-degree murder and use of a deadly weapon, and got two LWOPs. He had received a death sentence from the state trial court, which the state supreme court had vacated. The petitioner raised a post-conviction challenge, without this claim being raised. He did raise it later in an extraordinary writ, which the court seemed to consider on its merits in a brief denial. The 9th finds that the issue was exhausted. Turning to the merits, the state instruction fails to distinguish between premeditation and other forms of homicide, and it is aggravated by the prosecutor's argument. The 9th follows the precedent set forth in Polk. There was prejudice because there was evidence of self-defense in the stabbing. Wallace dissented, arguing that the claim was unexhausted.

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