The Ninth Circuit Court of Appeals today released an amended order in HARPER v. POWAY UNIFIED SCHOOL, No. 04-57037, a civil rights appeal. The panel consisted of Stephen Reinhardt, Alex Kozinski, and Sidney R. Thomas, Circuit Judges.

The majority opinion filed April 29, 2006, is hereby amended as follows:
1. At Slip Op. at 4676, footnote 28, at the end of the footnote, add: “We do not exclude, however, the possibility that some verbal assaults on the core characteristics of majority high school students would merit application of the Tinker “intrusion upon the rights of other students” prong. That question is not presently before us.” The dissenting opinion filed April 29, 2006, is hereby amended as follows:
1. At Slip Op. at 4710, footnote 11, between <Id. at 4667.> and <Read broadly, this would protect>, add: “The majority also does not “exclude . . . the possibility that some verbal assaults on the core characteristics of majority high school students would merit application of the Tinker `intrusion upon the rights of other students’ prong.” Id. at ___ n.28. Appellants’ petition for rehearing en banc is still pending before this court. . . .

The Ninth Circuit Court of Appeals today released an amended order in AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT SERVICES, INC., No. 05-56567, a diversity appeal. The panel consisted of Alfred T. Goodwin, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges.

The dissent from the denial of rehearing en banc, filed on May 22, 2006, is amended as follows:
5893 . . .

BYBEE, Circuit Judge, with whom Judges KOZINSKI, O’SCANNLAIN, RYMER, CALLAHAN, and BEA join, dissenting from the denial of rehearing en banc:
Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications. Section 5(a) of the Class Action Fairness Act of 2005 (”CAFA”), Pub. L. No. 109-2, § 5(a), 119 Stat. 4, 12-13, creates 28 U.S.C. § 1453(c)(1), which provides for a permissive appeal when the district court refuses to accept a class action removed from state court. See Bush v. Cheaptickets, Inc., 425 F.3d 683, 685 (9th Cir. 2005). Specifically, section 1453(c)(1) provides:
[A] court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order. 28 U.S.C. § 1453(c)(1) (emphasis added). Despite the clarity of this language, the panel announced that it would read the phrase “not less than 7 days” to mean “not more than 7 days.” Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1145-46 (9th Cir. 2006). As a result, the appellants’ application, filed 43 days after the district court’s order, was untimely. The court now follows the misguided approach of the Tenth Circuit, which has announced that it too will read the phrase “not less than 7 days” as if it had been written “not more than 7 days.” See Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005). I dissent from our refusal to rehear this case en banc because “I am convinced the parade is marching in the wrong direction.” United States v. Smith, 440 F.2d 521, 527 (7th Cir. 1971) (Stevens, J., dissenting). The Republic will certainly survive this modest, but . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MORALES-PEREZ, No. 05-10115, a criminal appeal. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:
Rodrigo Alejandro Morales-Perez (”Morales-Perez”) pled guilty to one count of unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326. He appeals his 70-month sentence, arguing that the district court erred when it concluded that his prior conviction under California Health and Safety Code section 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualified as a drug trafficking offense under the United States Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A). Morales-Perez also contends that the district court erred in sentencing him above the two-year statutory maximum for convictions under 8 U.S.C. § 1326 based on his prior conviction. We affirm the district court. The definition of drug trafficking offense contained within the Sentencing Guidelines encompasses both possession and purchase with intent to distribute. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Furthermore, the district court properly considered Morales-Perez’s prior conviction in sentencing him above the statutory maximum. See AlmendarezTorres v. United States, 523 U.S. 224 (1998). However, we order a limited remand to the district court pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). I The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. . . .

The Ninth Circuit Court of Appeals today released an amended order in CLARK v. CALDERON, No. 02-99007, a habeas corpus appeal. The panel consisted of Dorothy W. Nelson, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

W. FLETCHER, Circuit Judge: William Clark, a California death row inmate, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus . . .

This court’s opinion filed March 17, 2006, and published at Clark v. Brown, 442 F.3d 708 (9th Cir. March 17, 2006) is amended as follows:
The last two lines of slip op. 2802 and the first line of 2803, replace the sentence:
“Not only was Murtishaw a non-capital special circumstance felony-murder case in which the Court was careful to distinguish Green, as just noted.” With:
“Not only was Murtishaw a non-special circumstance felony-murder case in which the Court was careful to distinguish Green, as just noted.” With this amendment, the panel has voted to deny the petition for rehearing. Judges Fletcher and Fisher have voted to deny the petition for rehearing en banc; and Judge Nelson so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc, filed April 27, 2006, are DENIED. OPINION W. FLETCHER, Circuit Judge: William Clark, a California death row inmate, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CAMACHO-LOPEZ, No. 05-10455, a criminal appeal. The panel consisted of Alfred T. Goodwin, Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:
Jose Jesus Camacho-Lopez (”Camacho”) appeals his conviction for illegal reentry following deportation, arguing that a defect in his earlier deportation proceeding — the Immigration Judge’s (”IJ”) advice that Camacho was ineligible for . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. PINTADO-ISIORDIA, No. 05-50489, a criminal appeal. The panel consisted of Donald P. Lay, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.

PER CURIAM:
Pintado-Isiordia appeals from his conviction and sentence for violating 8 U.S.C. § 1326. We affirm in part, vacate in part and remand for resentencing. A. Evidentiary Issues 1. Birth record [1] The record of Pintado-Isiordia’s birth, which was issued by the government of Nayarit, Mexico, is self-authenticating under Fed. R. Civ. P. 44(a)(2). The Government was not . . .

The Ninth Circuit Court of Appeals today released an opinion in RASBERRY v. GARCIA, No. 03-15854, a habeas corpus appeal. The panel consisted of Mary M. Schroeder, Chief Judge, Stephen S. Trott and Andrew J. Kleinfeld, Circuit Judges.

TROTT, Circuit Judge:
Petitioner, Jackie Ervin Rasberry, appeals the dismissal as untimely of his 28 U.S.C. § 2254 habeas corpus petition. Rasberry contends that he is entitled to equitable tolling because the district court dismissed Rasberry’s wholly unexhausted habeas petition when it should have been apparent to the court that Rasberry had accidently omitted from the petition two claims that he had exhausted in state court. Rasberry argues that the district court should have notified him of the two omitted claims, granted him the opportunity to amend his habeas petition to add the claims, and permitted him to employ the hold and abeyance procedure, allowing him to return to state court to exhaust his remaining claims. Alternatively, he argues that his second habeas petition relates back to his timely filed first habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. A district court has no obligation to inform a pro se habeas petitioner of potentially exhausted claims that the petitioner failed to include in his habeas petition. Additionally, Rasberry’s second habeas petition does not relate back to his timely filed first habeas petition. Thus, the district court properly dismissed Rasberry’s untimely habeas petition. I Rasberry is a California state prisoner who was sentenced to fifty years to life imprisonment for two drug convictions. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. HOWARD, No. 05-10469, a criminal appeal. The panel consisted of John T. Noonan and Jay S. Bybee, Circuit Judges, and William W Schwarzer, District Judge.

BYBEE, Circuit Judge:
Appellant Curtis Howard appeals the district court’s ruling that the search of an apartment at which he had spent the night was constitutional because he was on probation and officers had probable cause to believe that he resided there. We hold that the evidence in this case was insufficient to establish probable cause and reverse the ruling of the district court. . . .

NOONAN, Circuit Judge, concurring, dubitante:
“In sum, we hold that before conducting a warrantless search pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc). Applying this standard with the help of five cases where we found probable cause “but just barely,” the majority concludes that probable cause was lacking here. I cannot deny the controlling standard set by Motley and the pattern of what constitutes probable cause are not unreasonably presented. Bound by circuit precedent, I cannot suppress a doubt that circuit precedent conforms with the constitution as interpreted by the United States Supreme Court. As recently as 2000, this circuit distinguished between “probationary searches” and “investigative searches” directed at uncovering evidence of criminal activity by a felon on pro. . .

The Ninth Circuit Court of Appeals today released an opinion in EDMONDS v. STANDCAMPIANO, No. 04-35449, an appeal in a civil action against the United States. The panel consisted of Diarmuid F. O’Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
Rarely does a probate matter find its way into federal court. Here we are presented with a will contest involving a member of an Indian tribe in a Department of the Interior probate proceeding where we must decide whether state or federal law of evidence applies. I Matilda Covington, a Colville Indian, died on July 13, 1999. On July 9, 1999, shortly before her death, Covington executed a will leaving all her Indian trust allotments to her great-grandson, Brandon Austin Francis, a minor. Covington’s children predeceased her and she left no property to her three living grandchildren. The will listed one of Covington’s grandchildren, Jolene Francis–the mother of Brandon Austin Francis–as the decedent’s personal representative for purIn this opinion, we use the term “Indian.” Though the term “Native American” is frequently preferred, “the statutes and opinions we examine use the term Indian, which was the appropriate word not so long ago.” Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1118 n.1 (9th Cir. 1998). A trust allotment is “a parcel of land owned by the United States in trust for an Indian.” Cohen’s Handbook of Federal Indian Law § 16.03[1], p. 1039 (Nell Jessup Newton et al. eds., 2005) (”Federal Indian Law“). See also United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 906 n.2 (9th Cir. 1994). Generally, “upon the death of an Indian allotment owner, the decedent’s interest . . . passes to his or her Indian heirs or devisees.” Federal Indian Law § 16.03[4][c], p. 1052. However, “with secretarial approval, Indian allotment owners may relinquish allotted land to their close relatives in trust, so long as the recipient is an Indian qualified to own restricted property.” Id. Thus, the Department of the Interior determines the disposition of trust properties when the Indian dies. 25 U.S.C. §§ 372, 373. See also William C. Canby, Jr., American Indian Law 50 (4th ed. 2004) (describing Indian trust lands and Interior’s role). . . .

GOULD, Circuit Judge, dissenting:
Although I agree with the majority’s framework for interpreting the Department of Interior’s governing regulation in Part II, I disagree with the majority’s analysis in Part III, which for me is the crux of the case. In Part III, the majority holds that because no Washington case or statute has adopted the testamentary exception to the attorney-client privilege, the exception is not a “generally accepted” rule of evidence as required by 43 C.F.R. § 4.232(a). The majority then concludes that the general attorney-client privilege, set forth in Wash. Rev. Code § 5.60.060(2)(a), is a “generally accepted” rule of evidence that prevents disclosure of the subpoenaed documents. The discovery of these documents is not merely technical, nor is an error on the scope of attorney-client privilege here likely harmless. It goes to justice between the parties, as the quashed discovery might have shed light on whether a testator who in old age cut her grandchildren out of her will and left everything to a single great-grandchild may have been of unsound mind or unduly influenced in the revision of her will. On the other hand, if the discovery shows nothing of this, then it benignly clears the cloud of this litigation that otherwise may mar the great-grandchild’s inheritance. . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. KIM, No. 05-50112, a criminal appeal. The panel consisted of M. Margaret McKeown and Marsha S. Berzon, Circuit Judges, and Samuel P. King, Senior Judge.

BERZON, Circuit Judge:
Pseudoephedrine, a “listed chemical” under a federal drug statute, 21 U.S.C. § 802(33) & (34)(K), is an ingredient in many over-the-counter cold medications. It can also be used to manufacture methamphetamine, a controlled substance under 21 U.S.C. § 812. Both the United States and California have statutes prohibiting over-the-counter sales of drugs containing pseudoephedrine in certain instances. See 21 U.S.C. § 841(c)(2); CAL. HEALTH & SAFETY CODE § 11100(a)(17) & (e)(6). This case concerns the conviction of the proprietor of a small pharmacy for selling cold remedies containing pseudoephedrine. Jae Gab Kim was convicted of violating 21 . . .

The opinion filed on April 10, 2006, is amended as follows: On slip opinion page 3929, line 9, beginning with “Overthe-counter sales . . .” and ending line 12 with “from `regulated transactions.’ ” delete and replace with the following: Over-the-counter sales of pseudoephedrine that are not “ordinary,” however, may be regulated transactions, because they are not necessarily included in the exemption from regulated transactions. On slip opinion page 3929, line 12, after “exemption from `regulated transactions.’ ” insert the following footnote: The definition of “regulated transaction” generally allows the “Attorney General [to] establish[ ] a threshold amount for a specific listed chemical.” § 802(39)(A). Section 802(39)(A)(iv)(II) provided at the time of Kim’s offense “the threshold for any sale of products containing pseudoephedrine . . . products by retail distributors or by distributors required to submit reports by section 830(b)(3) of this title shall be 24 grams of pseudoephedrine . . . in a single transaction.” At the time of the relevant transactions in this case, the Attorney General had not established single transaction thresholds for retail sales of pseudoephedrine, but he has done so since then. Compare 21 C.F.R. 1310.04(f) (2000) with 21 C.F.R. 1310.04(f) (2006). The details of the quantity or quality of pseudoephedrine that must be recorded and reported are not dispositive in this case and the statute has been amended recently, see infra note 8, so we do not address the recording and reporting requirements further. . . .