The Ninth Circuit Court of Appeals today released an opinion in SMITH v. BALDWIN, No. 04-35253, a habeas corpus appeal. The panel consisted of Procter Hug, Jr., Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.

REINHARDT, Circuit Judge: I. This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into not testifying on his behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites. Roger Smith is currently serving a life sentence with a 30-year minimum term. The district court dismissed on procedural grounds his petition for a writ of habeas corpus without reaching the merits of his claims. It found that he had not exhausted those claims in state court and that, because state procedural rules barred him from doing so now, the claims were procedurally defaulted. Like the district court, we do not consider the merits of his case. All we decide is that, under an exception to the applicable procedural rules, Smith may pursue his federal constitutional claims in federal court. Both the facts and the law are complex, however, as they tend to be these days in almost all habeas corpus cases. Smith argues on this appeal that his petition has not been procedurally defaulted and that, if it has, the procedural default should be excused on the basis of his claim of actual innocence. The exception on which he relies is known as the Schlup “actual innocence” exception, named after the case of Schlup v. Delo, 513 U.S. 298, 315 (1995). We hold that because prosecutorial misconduct in connection with his federal habeas proceedings seriously interfered with Smith’s ability to make the necessary showing under Schlup, and because the resultant harm cannot be effectively remedied by less intrusive means, the exculpatory testimony withheld from the court as a result of the state’s actions must be presumed to be true. We deem the exculpatory statements to be truthful, . . .

BYBEE, Circuit Judge, dissenting:
Roger Smith and Jacob Edmonds needed money. Bad. For an Anthrax concert. So they burglarized the Konzelmans’ garage to obtain tools. They then put bandannas on their faces to disguise themselves and made up code names. Smith took a rope into the house. One of them took a three-foot-long . . .

The Ninth Circuit Court of Appeals today released an order in DAGHER v. SAUDI, No. 02-56509, a federal appeal. The panel consisted of Stephen Reinhardt, Ferdinand F. Fernandez, and Johnnie B. Rawlinson, Circuit Judges.

Pursuant to the Supreme Court judgment, we affirm the district court’s grant of summary judgment to the defendants. . . .

The Ninth Circuit Court of Appeals today released an opinion in ROBERTSON v. KULONGOSKI, No. 04-35989, a federal appeal. The panel consisted of Barry G. Silverman and Ronald M. Gould, Circuit Judges, and John S. Rhoades, District Judge.

RHOADES, District Judge:
Plaintiffs-Appellants (”the Employees”), current and retired employees of the State of Oregon, challenge legislation1 passed by the Oregon legislature in 2003 that amended the Oregon Public Employees Retirement System (”PERS”). The Employees bring their claims under the Contract Clause of the United States Constitution. The Employees appeal the district court’s denial of their motion for summary judgment and grant of summary judgment in favor of defendants-appellees (collectively “the State”). Only the Employees’ First and Sixth Claims remain at issue. I. The Oregon Public Employees Retirement System “Oregon has provided its public employees with a retirement plan, as a contractual benefit of public employment, since 1945.” Strunk v. Public Employees Retirement Board, 108 P.3d 1058, 1068 (Or. 2005). Prior to the 2003 legislation, PERS members contributed six percent of their salaries to the. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SANTIAGO, No. 05-30584, a criminal appeal. The panel consisted of Barry G. Silverman and Ronald M. Gould, Circuit Judges, and John S. Rhoades, Sr., District Judge.

GOULD, Circuit Judge:
We consider whether the plain error standard of review applies when the district court expressed “concern” about how a Presentence Report (”PSR”) calculated the quantity of drugs attributable to the defendant, but the defendant did not object to any part of the PSR. We hold that in such a case the plain error standard of review applies. Concluding here that there was no plain error, we affirm the defendant’s sentence. On August 4, 2005, Jesus Antonio Santiago pled guilty to . . .

The Ninth Circuit Court of Appeals today released an opinion in ACLU OF NEVADA v. CITY OF LAS VEGAS, No. 05-15667, a civil rights appeal. The panel consisted of A. Wallace Tashima, Sidney R. Thomas, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:
We must decide whether city ordinances prohibiting solicitation and the erection of tables in a five-block tract of downtown Las Vegas unconstitutionally restrict free speech. We hold that they do. I. This case returns to our court for a third time. In 1997, nonprofit organizations the American Civil Liberties Union of Nevada, the Unitarian Universalist Social Justice Committee, the Shundahai Network, and three of their members (collectively “Plaintiffs”) filed a complaint in federal district court for declaratory and injunctive relief. Relying on 42 U.S.C.. . .

The Ninth Circuit Court of Appeals today released an amended order in BALLEN v. CITY OF REDMOND, No. 04-35606, a civil rights appeal. The panel consisted of Richard C. Tallman and Jay S. Bybee, Circuit Judges, and Marilyn L. Huff, District Judge.

TALLMAN, Circuit Judge:
This First Amendment commercial speech case arises from a dispute between Blazing Bagels’ use of outdoor advertising and the City of Redmond’s commercial signage ordinance. The City of Redmond, Washington, and its Department of Planning and Community Development (collectively “Defendants” or “the City” or “Redmond”) appeal the district court’s orders granting Plaintiff Dennis Ballen summary judgment and attorneys’ fees. Appellees Ballen and his business, Nice Tie, Inc., d/b/a Blazing Bagels (collectively “Ballen” or “Plaintiffs”), challenge the City’s sign ordinance (”Ordinance”), REDMOND COMMUNITY DEVELOPMENT GUIDE (”RCDG”) 20D.160.10-090, prohibiting all portable signs, with ten exceptions, see RCDG 20D.160.10-060, arguing, inter alia, that the Ordinance does not directly advance the government’s interest and, in the alternative, reaches further than necessary to accomplish the government’s interest. We must decide whether the Ordinance prohibiting the use of portable signs is a permissible restriction on commercial speech. The district court ruled the City’s Ordinance invalid and we affirm. We also uphold the fee award. I On June 17, 1997, to promote the City’s dual goals of traffic safety and community aesthetics, see RCDG 20D.160.10010, the City Council passed the Ordinance banning the display of most portable and offsite signs. RCDG 20D.160.10090. The challenged provision of the Ordinance reads: . . .

The Opinion filed on September 15, 2006, is amended as follows:
At slip opinion page 11445, first paragraph, line 1: delete the first paragraph and replace with the following text, retaining footnote 1 at the end of the new text:
“Ballen subsequently moved for an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. . . .

The Ninth Circuit Court of Appeals today released an opinion in VELAZQUEZ-HERRERA v. GONZALES, No. 04-72417, an administrative appeal. The panel consisted of J. Clifford Wallace, Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

PER CURIAM:
Victor Ramon Velazquez-Herrera petitions for review of the decision of the Board of Immigration Appeals (BIA) adopting and affirming the decision of the Immigration Judge (IJ), who determined that petitioner’s conviction under Washington’s fourth degree assault statute, Wash. Rev. Code § 9A.36.041, constituted a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i), thereby making petitioner removable and ineligible for discretionary relief. We grant the petition and remand to the BIA so that it may issue a precedential decision defining what constitutes a crime of child abuse for purposes of § 1227(a)(2)(E)(i) and apply that definition to petitioner’s conviction in accordance with Taylor v. United States, 495 U.S. 575 (1990). We have jurisdiction to review questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D). [1] The Immigration and Nationality Act does not define the term “child abuse” in 8 U.S.C. § 1227(a)(2)(E)(i) (”Any alien who at any time after admission is convicted of . . . a crime of child abuse . . . is deportable.”), nor has our case law defined the term as it is used in that statute. The BIA has described child abuse in another context as “[a]ny form of cruelty to a child’s physical, moral or mental well-being,” relying on Black’s Law Dictionary. See In re RodriguezRodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999) (alteration in original). This language, however, was dictum not essential to the Board’s holding, which concerned the definition of “sexual abuse of a minor.” Id. The IJ in the case before us found that “assault on a child is abuse, even if it is only a minor touching, as comprehended by the statute, because of the unfair advantage that an adult has over a child . . . .” The IJ never mentioned Rodriguez- . . .

The Ninth Circuit Court of Appeals today released an opinion in CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE, No. 04-16563, an appeal in a civil action against the United States. The panel consisted of Pamela Ann Rymer and Kim McLane Wardlaw, Circuit Judges, and William Alsup, District Judge.

RYMER, Circuit Judge: The Center for Biological Diversity and the Pacific Rivers Council (collectively, the Center) appeal the district court’s summary judgment in favor of the Secretary of the Interior,1 and the Director of the U.S. Fish and Wildlife Service (collectively, the Service) in this suit under the Endangered Species Act (ESA). 16 U.S.C. § 1531 et seq. The Center challenges the Service’s finding under 16 U.S.C. § 1533(b)(3)(B)(iii) that listing of the Sierra Nevada Mountain Yellow-Legged Frog (the Frog) as an endangered species is “warranted but precluded.” For such a finding, §§ 1533(b)(3)(B)(iii)(I) and (II) require the Service to identify proposals for other listings that preclude listing the Frog and to find that expeditious progress is being made to list qualified species. Although the Service did not do so in its decision, the district court upheld the finding of “warranted but precluded” because the Service’s path could reasonably be discerned. We conclude that this option is not available under the ESA, which expressly directs the Service, when making a “warranted but precluded” finding, to “publish such finding in the Federal Register, together with a. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. NGUYEN, No. 06-30011, a criminal appeal. The panel consisted of Stephen Reinhardt, M. Margaret McKeown, and Richard R. Clifton, Circuit Judges.

CLIFTON, Circuit Judge:
Defendant Dal Van Nguyen appeals his conviction under 8 U.S.C. § 1253(b) for willful failure to comply with terms of release under supervision. The term in question required that Nguyen not “commit any crimes.” His conviction was based solely upon proof that he had previously been convicted of two Alaska state misdemeanors following pleas of nolo contendere. Nguyen argues on appeal that, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he “commit[ted] any crimes.” He further argues that his state convictions should not have been admitted into evidence in his trial on the federal charge. We agree and reverse the conviction. I. Background Nguyen, a citizen of Vietnam, lawfully immigrated to the United States in 1990, when he was a teenager. A decade later, he was convicted as an adult of a misdemeanor drug possession offense and ordered removed to Vietnam. Because the United States and Vietnam do not have a repatriation agreement, however, the Government has not been able to remove Nguyen. Consequently, the Bureau of Immigration and Customs Enforcement (”ICE”) released Nguyen from immigration custody but imposed upon him an order of supervision, pursuant to 8 U.S.C. § 1231(a)(3). One of the conditions of this order states that Nguyen is to “not commit any crimes while on this Order of Supervision.” Two years later, in state court, Nguyen pleaded nolo con- tendere to, and was convicted of, two misdemeanors: criminal mischief in the fourth degree, in violation of Alaska Statutes § 11.46.484, and assault in the fourth degree, in violation of Alaska Statutes § 11.41.230(a)(3). Thereafter he was charged . . .

The Ninth Circuit Court of Appeals today released an opinion in GLANTON v. ADVANCE PCS, INC., No. 04-15328, a federal appeal. The panel consisted of Alex Kozinski and Ferdinand F. Fernandez, Circuit Judges, and Terry J. Hatter, Jr., District Judge.

KOZINSKI, Circuit Judge:
We consider whether prescription drug plan participants who have suffered no judicially cognizable injury may sue their plans’ fiduciaries under the Employee Retirement Income Security Act of 1974 (”ERISA”). Facts AdvancePCS is a pharmacy benefits management company (PBM). PBMs manage prescription drug benefit programs and seek to reduce their clients’ drug costs by pooling claims and negotiating volume discounts with pharmaceutical companies. Among AdvancePCS’s clients are employee welfare benefit plans sponsored by ALCOA and K-Mart. When AdvancePCS receives a prescription from one of the plan participants, it decides whether to buy the drug (preferably from a seller with whom it has negotiated a discount), reject the claim or switch the participant to another drug. . . .