The Ninth Circuit Court of Appeals today released an 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.

A judge requested a vote on whether to rehear this matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The request for rehearing en banc is denied. REINHARDT, Circuit Judge, concurring in the order denying the petition for rehearing en banc:
The dissenters still don’t get the message — or Tinker! Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply “unpleasant and offensive.” It strikes at the very core of the young student’s dignity and self-worth. Similarly, the example Judge Kozinski offers, a T-shirt bearing the message, “Hitler Had the Right Idea” on one side and “Let’s Finish the Job!” on the other, serves to intimidate and injure young Jewish students in the same way, as would T-shirts worn by groups of white students bearing the message “Hide Your Sisters — The Blacks Are Coming.” Under the dissent’s view, large numbers of majority students could wear such shirts to class on a daily . . .

REINHARDT, Circuit Judge, concurring in the order denying the petition for rehearing en banc:
The dissenters still don’t get the message — or Tinker! Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply “unpleasant and offensive.” It strikes at the very core of the young student’s dignity and self-worth. Similarly, the example Judge Kozinski offers, a T-shirt bearing the message, “Hitler Had the Right Idea” on one side and “Let’s Finish the Job!” on the other, serves to intimidate and injure young Jewish students in the same way, as would T-shirts worn by groups of white students bearing the message “Hide Your Sisters — The Blacks Are Coming.” Under the dissent’s view, large numbers of majority students could wear such shirts to class on a daily . . .

GOULD, Circuit Judge, concurring in the order denying the petition for rehearing en banc:
Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms. . . .

O’SCANNLAIN, Circuit Judge, with whom KLEINFELD, TALLMAN, BYBEE, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc: Judge Kozinski’s powerful dissent explains why the court errs in permitting school administrators to engage in viewpoint discrimination on the basis of a student’s newly promulgated right to be free from certain offensive speech. I write only to emphasize why it was a mistake to fail to rehear this case en banc. I The Supreme Court has clearly stated that [i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). Tyler Harper wore a T-shirt to his high school with the words “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful `Romans 1:27′ ” on the back. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1171 (9th Cir. 2006). Harper’s shirt was undoubtedly unpleasant and offensive to some students, but Tinker does not permit school administrators to ban speech on the basis of “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 393 U.S. at 509. Nevertheless, the panel majority stretches mightily to characterize Harper’s message as a psychological attack that might “cause young people to question their self-worth and their rightful place in society.” Harper, 445 F.3d at 1178. . . .

The Ninth Circuit Court of Appeals today released an opinion in NAVARRO-LOPEZ v. GONZALES, No. 04-70345, an administrative appeal. The panel consisted of Harry Pregerson and Edward Leavy, Circuit Judges, and Ralph R. Beistline, District Judge.

LEAVY, Circuit Judge:
Armando Navarro-Lopez petitions for review of a final order of removal, arguing that the Board of Immigration Appeals (BIA) erred in summarily affirming the immigration judge’s (IJ) determination that Navarro-Lopez’s conviction under California Penal Code § 32 for accessory after the fact was a conviction involving a crime of moral turpitude. Based on this conviction, the BIA concluded that Navarro-Lopez was inadmissible and ineligible for cancellation of removal. We have jurisdiction, and we deny the petition for review. FACTS AND PRIOR PROCEEDINGS Navarro-Lopez is a native and citizen of Mexico who entered the United States in June 1984. On August 9, 1999, Navarro-Lopez pleaded guilty to a violation of Cal. Penal Code § 32, accessory after the fact, and was sentenced to 270 days in jail and three years probation. In February 2001, Navarro-Lopez traveled to Tijuana, Mexico. When he tried to re-enter the United States, he was denied entry and detained. Thereafter the Immigration and Naturalization Service (INS) filed an amended Notice to Appear (NTA) charging that he was inadmissible because he did not have valid entry documents under 8 U.S.C. § 1182(7)(A)(i)(I) and for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1182(2)(A)(i)(I). At his merits hearing Navarro-Lopez conceded the charge of inadmissibility under 8 U.S.C. § 1182(a) (7)(A)(i)(I), but argued that his Cal. Penal Code § 32 conviction did not constitute a crime involving moral turpitude. The IJ determined that Navarro-Lopez’s conviction of violating Cal. Penal Code § 32 constituted a crime involving moral turpitude under 8 U.S.C. § 1182(2)(A)(i)(I):
It is a crime involving moral turpitude because a conviction under this provision does show conduct . . .

PREGERSON, Circuit Judge, dissenting:
The majority’s decision represents an unwarranted expansion of the definition of crimes involving moral turpitude and contravenes this circuit’s precedent. The majority holds that a conviction under California Penal Code § 32 for accessory after the fact is categorically a crime involving moral turpitude, even though one could be convicted under that statute for acts as sympathetic as providing food or shelter to one’s own child if you know the child has committed even the most minor felony. I therefore dissent. Moral turpitude has been defined by this circuit as an “act of baseness or depravity contrary to accepted moral standards.” Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993); see also id. (further defining moral turpitude as conduct “so basically offensive to American ethics and accepted moral standards”) (citations omitted). The BIA has defined a crime involving moral turpitude as “[a]n act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man or to society . . . [where the] fundamental inquiry [is]: Does the crime . . . in its nature imply personal depravity or baseness upon the part of its perpetrator?”. Matter of E–, 2 I. & N. Dec. 134, 140 (BIA 1944, AG 1944). In a more vivid description, the Supreme Court defined moral turpitude as conduct . . .

The Ninth Circuit Court of Appeals today released an opinion in SALVIEJO-FERNANDEZ v. GONZALES, No. 04-76383, an administrative appeal. The panel consisted of Harry Pregerson and Edward Leavy, Circuit Judges, and Ralph R. Beistline, District Judge.

LEAVY, Circuit Judge:
Philander Salviejo-Fernandez (Salviejo), a native and citizen of the Philippines, petitions pro se for review of the Board . . .

PREGERSON, Circuit Judge, dissenting:
This case presents two important questions of first impression. First, the majority holds that a Notice to Appear need not charge all relevant criminal conduct, despite a DHS regulation to the contrary. See Maj. Op. at 8510. Second, it also concludes after only sparse analysis that California Health and Safety Code section 11366, that prohibits opening or maintaining a place for unlawfully selling or using a controlled . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. MANZO-JURADO, No. 05-30186, a criminal appeal. The panel consisted of William C. Canby, Jr., Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge:
We revisit the important issue of when information available to officers creates a reasonable suspicion that an individual is in the United States illegally so as to justify an investigatory stop. Given the particular facts of this case-individuals’ appearance as a Hispanic work crew, inability to speak English, proximity to the border, and unsuspicious behavior–law enforcement lacked reasonable suspicion that Appellant and his co-workers were in this country illegally. I. On November 20, 2004, Manzo-Jurado and five of his coworkers attended the high school football state championship . . .

The disposition filed on June 20, 2006 and available at 2006 WL 1679413 is AMENDED as follows. At page 2, note 3 of the opinion, the following sentence shall be deleted in its entirety: At oral argument, the Government conceded that Manzo-Jurado was seized within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, so as to require reasonable suspicion. At page 2, note 3 of the disposition, the following sentences shall be inserted to replace the deleted sentence: Manzo-Jurado was seized within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968), because Kaul’s “show hands order [to the truck occupants] was a `meaningful interference’ with [Manzo-Jurado’s] freedom.” See . . .

GOULD, Circuit Judge, dissenting:
The majority opinion concludes that the factors at issue in this case did not give a particularized and objective basis for the agents’ reasonable suspicion that any member of ManzoJurado’s group was an illegal immigrant, and thus that the temporary seizure of the vehicle and questioning of its occupants was unconstitutional. However, our assessment of whether a detaining officer has such a basis must take into consideration the officer’s inferences from the information available to him or her, even when those inferences might elude a person without similar experience and training. See United States v. Arvizu, 534 U.S. 266, 274 (2002); United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). I view the Supreme Court’s language in Arvizu to require some degree of deference to the skilled judgment of immigration officials. In light of this, although it may be a close case, I would hold that the agents’ familiarity with the Havre community; their observation of a group of Hispanic-looking men at a football game who appeared to be a work-crew and were speaking only to each other, and only in Spanish; and the agents’ particularized knowledge that work crews in the area . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in USA v. CURTIN, No. 04-10632, a criminal appeal. The panel consisted of SCHROEDER, Chief Judge.

The Ninth Circuit Court of Appeals today released an opinion in ELWOOD v. DRESCHER, No. 04-55635, a civil rights appeal. The panel consisted of Sidney R. Thomas and Ronald M. Gould, Circuit Judges, and William W Schwarzer, Senior District Judge.

SCHWARZER, Senior District Judge:
These appeals arise out of litigation initiated by Darla Elwood over custody of two of her children. Elwood brought two § 1983 actions alleging conspiracies by various participants in state court proceedings to deprive her of custody of her children. The district court dismissed the actions and this Court affirmed. Elwood v. Morin, 84 Fed. App’x 964 (9th Cir. 2004); Elwood v. Morin, 87 Fed. App’x 617 (9th Cir. 2004); Elwood v. Drescher, 90 Fed. App’x 501 (9th Cir. 2004). The district court then ruled on applications for attorneys’ fees under 42 U.S.C. § 1988. It found the underlying actions to have been frivolous and awarded fees to defendants. Elwood appeals from those awards. In this opinion we address the . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LENCE, No. 05-30236, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following Booker error. I In June 2002, a jury convicted John Lence, an attorney and certified public accountant, of fourteen counts of bank fraud and one count of conspiracy to commit bank fraud. Chief Judge Donald W. Molloy presided at Lence’s trial and sentencing and calculated a base offense level of 6 with enhancements for amount of loss, more than minimal planning, and abuse of trust, resulting in an adjusted offense level of 20 and a sentencing range of 33-41 months. Chief Judge Molloy granted a downward departure because he termed Lence’s offense “outside of the heartland.” He also considered Lence’s relationship with his children and the loss of Lence’s law and certified public accountant licenses. He . . .

The Ninth Circuit Court of Appeals today released an opinion in LIVELY v. WILD OATS MARKETS, No. 04-56682, a diversity appeal. The panel consisted of Michael Daly Hawkins and Richard A. Paez, Circuit Judges, and Neil V. Wake, District Judge.

PAEZ, Circuit Judge:
Defendant-Appellant Wild Oats Market, Inc. (”Wild Oats”) appeals the district court’s order remanding this action to state court. Wild Oats removed this action to the District Court for the Central District of California alleging that, because the parties were completely diverse and the amount in controversy exceeded $75,000, diversity jurisdiction existed under 28 U.S.C. § 1332, and therefore removal was proper under 28 U.S.C. § 1441(a). Plaintiff-Appellee Emma C. Lively. . .

The Ninth Circuit Court of Appeals today released an order and opinion in PICKERN v. PIER 1 IMPORTS, INC., No. 04-17118, a federal appeal. The panel consisted of Procter Hug, Jr., Arthur L. Alarcón, and M. Margaret McKeown, Circuit Judges.

HUG, Circuit Judge:
Brenda Pickern appeals the district court’s grant of summary judgment to defendants/appellees Pier 1 Imports (U.S.), Inc. and Siegmund Weinstock Family Trust (collectively “the Appellees”). In granting summary judgment, the district court held that the Appellees had no obligation under Title III of the Americans with Disabilities Act (”ADA”) to build an access ramp to the Pier 1 Imports store (”the Store”) over land owned and operated by the City of Chico. The district court also decided that it need not address allegations of additional ADA violations because Pickern’s pleadings did not provide sufficient notice of those allegations and because Pickern submitted the expert report supporting those allegations after the deadline contained in the court’s scheduling order. We affirm. I. Factual and Procedural Background Pickern is a visually-impaired and mobility-impaired woman who depends on an electric wheelchair for transportation. Pier 1 Imports (U.S.), Inc. operates the Store and the Siegmund Weinstock Family Trust is Pier 1’s landlord. The Store is located at 1931 East 20th Street in Chico, California and is separated from 20th Street by a long strip of land that contains a public sidewalk and a ten-foot wide grassy berm; the grassy strip lies between the sidewalk and the Store prop. . .

The mandate issued on May 8, 2006 is hereby recalled. The request to publish the unpublished Memorandum disposition is granted. The Memorandum disposition filed April 14, 2006, is withdrawn and replaced with an opinion authored by Judge Hug. OPINION HUG, Circuit Judge:
Brenda Pickern appeals the district court’s grant of summary judgment to defendants/appellees Pier 1 Imports (U.S.), Inc. and Siegmund Weinstock Family Trust (collectively “the Appellees”). In granting summary judgment, the district court held that the Appellees had no obligation under Title III of the Americans with Disabilities Act (”ADA”) to build an access ramp to the Pier 1 Imports store (”the Store”) over land owned and operated by the City of Chico. The district court also decided that it need not address allegations of additional ADA violations because Pickern’s pleadings did not provide sufficient notice of those allegations and because Pickern submitted the expert report supporting those allegations after the deadline contained in the court’s scheduling order. We affirm. I. Factual and Procedural Background Pickern is a visually-impaired and mobility-impaired woman who depends on an electric wheelchair for transportation. Pier 1 Imports (U.S.), Inc. operates the Store and the Siegmund Weinstock Family Trust is Pier 1’s landlord. The Store is located at 1931 East 20th Street in Chico, California and is separated from 20th Street by a long strip of land that contains a public sidewalk and a ten-foot wide grassy berm; the grassy strip lies between the sidewalk and the Store prop. . .

The Ninth Circuit Court of Appeals today released an opinion in KING v. LAMARQUE, No. 05-15757, a habeas corpus appeal. The panel consisted of Alfred T. Goodwin, Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:
James Edward King (”King”) appeals the denial of his habeas corpus petition, raising four issues, only one of which was listed within the Certificate of Appealability (”COA”) at the time of argument. Three of the issues pertain to the Cali. . .

REINHARDT, Circuit Judge, concurring in part and concurring in the judgment:
I concur in Part I of the majority’s opinion with respect to the adequacy of California’s timeliness rule. I agree with the decision to remand the case for a determination whether, since Morales, the rule has become sufficiently clear and consistently applied to serve as a bar to federal habeas review. Unlike the majority, however, I would not reach the alternative issue regarding the “cause and prejudice” exception for procedural default. If I did, I would not join the majority’s opinion on that issue. Specifically, I do not agree that King’s expert witness merely bolstered, and thus needlessly postponed, an already extant Strickland claim. Rather, given the circumstances of his case, King’s waiting a reasonable period until he could obtain an expert’s testimony in order to make a good faith showing of Strickland prejudice would not in my view serve to default his claim. The majority relies on Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000), for the proposition that “a failure to solicit the opinion of a fingerprint expert could [be found to] constitute[ ] ineffective assistance of counsel” even without the provision of a fingerprint expert’s opinion. Id. at 1028-29. The Schell holding was premised, however, “[o]n the distinctive facts of th[at] case.” Id. at 1028. Further, the Schell court found that the record did not “clearly reflect . . . whether Schell’s attorney had in fact consulted a fingerprint expert and whether that expert gave a favorable report.” Id. at 1230. It held that “without [such] fully developed information, [it was] unable to determine whether” Schell’s counsel acted competently and whether such “deficiencies prejudiced Schell’s . . .