ADVERTISEMENTS

David v. Silva, No. 05-16821 (1-2-08). The state cannot use a "failure to exhaust" bar in this petitioner's appeal. The petitioner was serving a 9-year sentence when a guard messed with his food. A food fight ensued, and the petitioner was docked 150 days good time. He argued that he was prevented from calling a witness. He federalized the claim, citing the Constitution, regs allowing witnesses, and precedent about the ability to call a witness (Wolff). Although the appeal to the state supreme court lacked a factual discussion, the 9th felt, and held, that under the liberal construction approach for pro se, a claim was made, supported by authorities, and clearly put the state and courts on notice that the claim derived from his allegedly being barred from calling a witness at the administrative hearing.

Hayward v. Marshall, No. 06-55392 (1-3-08). Governor Gray Davis had repeatedly denied the parole of petitioner, serving a life sentence for a murder of a victim who assaulted his girlfriend earlier. The petitioner, having served close to 30 years, had a sterling record of rehabilitation. The Governor put forward various reasons that he was a danger, that state courts affirmed and the district court upheld. The 9th though found that it was a violation of due process (Gould joined by Kozinski and Friedman). The record had none of the dangers presented to the public that would be a basis for denying parole, and the record was replete indications of the petitioner's remorse and rehabilitation. The 9th found the Governor's reasoning without merit, and that the state courts were unreasonable in their application of constitutional due process standards.

Saleh v. Fleming, No. 04-35509 (1-3-08). The petitioner, suspected of murdering his ex-wife, and serving a sentence for assault on his son-in-law, placed a collect call to the detective who had met with him previously to unburden himself. This unburdening resulted in incriminating statements that were used at trial. The 9th (O'Scannlain joined by Tashima with a concurrence by Berzon) held that these statements (other earlier ones had been suppressed) were not "custodial" because, even though petitioner was in custody, he was not in custody on this issue. Moreover, he placed the call, could have terminated it, and spoke freely. As for the "cat out of the bag" argument (petitioner had previously confessed, but those were suppressed), the time and separation, and voluntary nature, made these statements admissible. Berzon concurred, just noting that the "cat" issue was foreclosed by precedent, but that the dissent by Judge Norris in Medeiros v. Shimoda, 889 F.2d 819 (9th Cir. 1989) (Norris, J., dissenting) was well reasoned, and that the lack of a second Miranda warnings after the previous interrogation, and invocation, should have made the subsequent phone call involuntary.

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