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Lee v. Lambert, No. 09-35276 (7-6-10) (O'Scannlain joined by Wolle, D.J.; concurrence by N. Smith). AEDPA does not have an innocence exception to its statute of limitations. That was the decision by the 9th, where the panel reversed and remanded a granting of relief by a district court. The petitioner had been convicted of various counts of child molestation in Oregon, but his challenge, with a compelling innocence claim, was outside AEDPA's statute. The 9th chose this case to quash any assumption that there was an exception for innocence, stating that it was basically a waste of time and judicial resources and that district courts are deciding cases differently (see pp. 9533 & 9534). The decision by the 9th boils down to the plain language of the statute and that Congress was aware of such a possible judicial created exception, but did not fashion such an exception in the final legislation. The decision by the 9th creates a circuit conflict with the 1st, 5th, 7th, 8th, and now 9th, aligned against the 6th. N. Smith concurred, focusing on the lack of AEDPA deference given to the state courts by the district court under AEDPA.

U.S. v. Johnson, No. 08-10147 (7-6-10) (Silverman with Fisher and M. Smith). "The record clearly shows that the defendants are fools, but that is not the same as being incompetent." That pretty much sums up this Faretta / Edwards decision. The defendants ran an illegitimate debt-elimination scheme and once caught, decided to represent themselves. The district court held a Faretta hearing, begged them to have counsel, had a competency hearing, and appointed stand-by counsel. The defendants cannot now say that Indiana v. Edwards, 554 US 164 (2008) required the court to appoint counsel. Edwards allows a district court to override a Faretta request where there is a mental disorder that prevents a fair trial from occurring. Here, though, the defendants were found competent, appeared rational, if foolish, and after an extensive hearing, voluntarily and knowingly waived counsel. The defendants could not meet the threshold for an Edwards claim. The opinion does identify that the standard of review for such Edwards claims is still undecided. There is a suggestion that it is an abuse of discretion, but it may require a higher standard once a Faretta request has been granted. This issue is left for another day because the defendants were competent. The 9th also held that the district court did not abuse its discretion in refusing to recuse itself after having presided over a civil trial with the defendants on related issues.

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