The Ninth Circuit Court of Appeals today released an amended order in RALEY v. YLST, No. 04-99008, a habeas corpus appeal. The panel consisted of Barry G. Silverman, Susan P. Graber, and Richard R. Clifton, Circuit Judges.

GRABER, Circuit Judge:
Petitioner David A. Raley was convicted in California state court, and sentenced to death, for the kidnap and first-degree murder of one victim and the kidnap, oral copulation by force, and attempted murder of a second victim. In this habeas petition, brought pursuant to 28 U.S.C. § 2253, he challenges his conviction on the grounds that he received ineffective assistance of counsel both at the trial and penalty phases and that the jury committed prejudicial misconduct by considering extrinsic evidence during sentencing. Additionally, he asserts that the district court erred in denying his request for an evidentiary hearing on his claim that the prosecutor failed to produce jail medical records to the defense as required under Brady v. Maryland, 373 U.S. 83 (1963). Because Petitioner received constitutionally sufficient assistance of counsel, because deliberations that are intrinsic to the jury process are not grounds for reversal, and because the records in question were not Brady material, we affirm. PROCEDURAL HISTORY Petitioner was charged with the kidnap, attempted oral copulation by force, and first-degree murder of victim J.G. in violation of California Penal Code sections 207(a), 664288a(c)(2), and 187, respectively. He also was charged with the kidnap, oral copulation by force, and attempted murder of victim L.M. in violation of sections 207(a), 288a(c)(2), and 664-187, respectively. A jury convicted him on all counts and found two special circumstances in relation to the murder of . . .

The opinion filed on April 14, 2006, slip opinion page 4145 and published at 444 F.3d 1085 (9th Cir. 2006), is amended by the opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. A majority of the nonrecused active judges failed to vote in favor of en banc rehearing. . . .

The Ninth Circuit Court of Appeals today released an amended order in MORGAN v. CANADY, No. 04-35608, a prisoner appeal. The panel consisted of Stephen Reinhardt, M. Margaret McKeown, and Richard R. Clifton, Circuit Judges.

CLIFTON, Circuit Judge:
Plaintiff Steven Morgan, a Washington prisoner, was injured by a defective printing press while working at a prison job for which he had voluntarily applied. Morgan alleges that he told his supervisor, Defendant Tom Canady, about the problem, but that Canady forced Morgan to keep working. Morgan brought a complaint under 42 U.S.C. § 1983, alleging that the requirement to continue working under those circumstances violated his Eighth and Fourteenth Amendment rights. Canady moved for summary judgment, asserting a defense of qualified immunity, which the district court denied. He appeals that decision, and we affirm. In so doing, we hold that, under certain circumstances, dangerous prison working conditions can give rise to an Eighth Amendment claim, notwithstanding the fact that the prisoner initially obtained his specific employment assignment through a voluntary application process within the prison system. We further hold that a prison official is not entitled to qualified immunity when he orders a prisoner to continue operating prison work equipment that the official has been warned and has reason to believe is unnecessarily dangerous. I. Background Because this case comes to us at the stage of defendant’s motion for summary judgment, where the underlying facts are disputed, we “assum[e] that the version of events offered by the non-moving party is correct” when determining whether the defendant should nonetheless be entitled to qualified immunity. Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th . . .

The opinion filed on October 6, 2006, is amended as follows:
On slip opinion page 17457, line 2 of the second full paragraph, change “California” to “Washington”. With this amendment, the panel has voted to grant Appellee’s petition for rehearing/error correction, and deny Appellant’s petition for rehearing and petition for rehearing en banc. 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. Appellee’s petition for rehearing/error correction is GRANTED. Appellant’s petition for rehearing and the peti. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LOPEZ, No. 05-50433, a criminal appeal. The panel consisted of Susan P. Graber, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.

RAWLINSON, Circuit Judge:
In this appeal, we must decide whether the government’s impermissible references to Appellant Jorge Enrique Lopez’s post-Miranda silence mandate reversal of his conviction. Because we conclude that any error was harmless beyond a reasonable doubt and, because none of Lopez’s other assertions of error is meritorious, we affirm the conviction and sentence. I. FACTS AND PROCEDURAL HISTORY On September 17, 2004, Lopez entered the United States and was arrested by a United States Border Patrol Senior Patrol Agent and transported to a Border Patrol Station, where he was processed. Subsequently, Lopez was indicted for being . . .

The Ninth Circuit Court of Appeals today released an opinion in AGUON-SCHULTE v. ATTORNEY GENERAL OF GUAM, No. 05-16067, a federal appeal. The panel consisted of Betty B. Fletcher, Harry Pregerson, and William C. Canby, Jr., Circuit Judges.

PREGERSON, Circuit Judge:
This case involves an appeal from a district court’s order denying a request to strike outside counsel and remanding the case to the Guam Superior Court for failure to join all defendants in the removal action. Generally, a district court’s order denying a motion to disqualify counsel is not appealable under 28 U.S.C. § 1291 prior to final judgment in the underlying litigation. Further, remand orders issued under 28 U.S.C. § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are usually immune from review under § 1447(d). Accordingly, we must determine whether we have jurisdiction to review this case. We have provisional jurisdiction under 28 U.S.C. § 1291 and we have jurisdiction to determine whether we have jurisdiction to hear the case. See United States v. Ruiz, 536 U.S. 622, 628 (2002). For the reasons set forth below, we find that we lack jurisdiction to review this case. I. Factual Background The events surrounding this action began twenty months ago with a general election scheduled for November 2, 2004. Included on the ballot was Proposal A, an initiative to legalize gambling on Guam. Guam election law required that the ballot pamphlets mailed to registered voters contain, among other things, a complete copy of any measure to be submitted to the voters. See Guam Code Ann. tit. 3 § 17509. Because the full text of Proposal A contained eighty pages of information, the pamphlet distributed by the Guam Election Commission (”GEC”) included only the title of Proposal A and a summary; it did not include the full text. Plaintiffs Lourdes P. Aguon-Schulte and Jay Merrill filed separate complaints, on October 18, 2004, and October 25, . . .

The Ninth Circuit Court of Appeals today released an opinion in DALIP SINGH v. GONZALES, No. 04-72701, an administrative appeal. The panel consisted of Alex Kozinski and Raymond C. Fisher, Circuit Judges, and Frederic Block, Senior District Judge.

FISHER, Circuit Judge:
The question posed by this case is whether an alien who in sworn affidavits claims that he never received notice of the BIA’s adverse decision is entitled to reopening and reissuance of that decision so that he may timely appeal it to this court. More specifically, when the BIA uses regular mail to meet its regulatory obligation to serve its decisions on aliens, does the BIA’s factual finding that its decision was properly mailed to the alien’s address of record preclude the alien’s claim that he did not actually receive the decision? I. Petitioner Dalip Singh is a 42-year-old native and citizen of India. On August 10, 1998, he entered the United States on a B-2 visitor’s visa, which authorized him to remain in the United States until February 9, 1999. Some time before his visa expired and while still lawfully in the United States, Singh petitioned the immigration authorities for asylum, claiming persecution on account of religion (Sikh) and membership in a disfavored group (the Akali Dal Mann Party). Subsequently, Singh appeared at two immigration hearings, one on November 29, 2001 and the second on May 23, 2002. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. KUCHINSKI, No. 05-30607, a criminal appeal. The panel consisted of Alex Kozinski and Ferdinand F. Fernandez, Circuit Judges, and Cormac J. Carney, District Judge.

FERNANDEZ, Circuit Judge:
John C. Kuchinski appeals his conviction and sentence for receipt and possession of child pornography. 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B). Principally, he asserts that his prosecution for receipt and possession violated the double jeopardy clause, that any use of the United States Sentencing Guidelines violates the separation of powers doctrine, and that he was improperly sentenced when all child pornography images on his computer were counted for sentencing purposes. We affirm his conviction, but vacate his sentence and remand. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. PAOPAO, No. 05-10653, a criminal appeal. The panel consisted of Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager, District Judge.

TRAGER, District Judge:
Eteuati Paopao (”Paopao”) pled guilty to a violation of 18 U.S.C. § 922(g), possession of a firearm by a felon. Under a reservation of rights, he now appeals two of the District Court’s rulings. Specifically, Paopao alleges that the District Court erred in not suppressing the Honolulu Police Department’s seizure of his handgun during a protective sweep of an . . .

This court’s opinion filed October 10, 2006, and published at United States v. Paopao, 465 F.3d 404 (9th Cir. October 10, 2006) is amended as follows:
On slip op. page 17359, and appearing at 465 F.3d 409, insert the following footnote after the final paragraph in Part I:
Of course, Paopao had a Fourth Amendment privacy interest in his effects and, therefore, had standing to contest the seizure of his tan bag. However, he did not claim, nor could he reasonably, that the seizure . . .

The Ninth Circuit Court of Appeals today released an opinion in SINOTES-CRUZ v. GONZALES, No. 04-70745, an administrative appeal. The panel consisted of Alex Kozinski and William A. Fletcher, Circuit Judges, and H. Russel Holland, District Judge.

W. FLETCHER, Circuit Judge:
Petitioner Jose Joaquin Sinotes-Cruz petitions for review from an order of removal. We hold that the government has introduced sufficient evidence to carry its burden of proof that Sinotes-Cruz is removable. We also hold, based on INS v. St. Cyr, 533 U.S. 289 (2001), that the permanent stop-time rule of § 240A(d)(1) of the Immigration and Nationality Act (”INA”), 8 U.S.C. § 1229b(d)(1), may not be applied retroactively to prevent Sinotes-Cruz from fulfilling the seven-year continuous residence requirement of INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2), for cancellation of removal. Finally, we hold that Sinotes-Cruz does not need a waiver of deportation under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), in order to be eligible for cancellation of removal. Thus we do not reach the question whether Sinotes-Cruz may simultaneously apply for waiver of deportation under § 212(c) and for cancellation of removal under § 1229b(a). We therefore grant Sinotes-Cruz’s petition and remand for further proceedings consistent with this opinion. . . .

The Ninth Circuit Court of Appeals today released an opinion in ALDF, ET AL v. VENEMAN, ET AL, No. 04-15788, an appeal in a civil action against the United States. The panel consisted of Alex Kozinski and William A. Fletcher, Circuit Judges, and H. Russel Holland, District Judge.

W. FLETCHER, Circuit Judge:
Plaintiffs, who include the Animal Legal Defense Fund (”ALDF”), the Animal Welfare Institute (”AWI”), and three individuals, challenge the United States Department of Agriculture’s (”USDA”) decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entities in how to ensure the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act (”AWA”). Plaintiffs challenge the decision not to adopt the Draft Policy under the Administrative Procedure Act (”APA”) as arbitrary and capricious. The district court did not reach the merits of plaintiffs’ suit because it determined that the USDA’s decision did not constitute reviewable final agency action. We disagree. We hold that at least one of the plaintiffs has standing under Article III of the Constitution, and we conclude that the district court has authority under the APA to review the USDA’s decision not to adopt the Draft Policy. I. Background A. Statutory and Regulatory Backdrop Congress enacted the AWA in 1966 “to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment . . . .” 7 U.S.C. § 2131(1). As originally enacted, the AWA left research facilities largely unregulated. See, e.g., 7 U.S.C. § 2143(a) (repealed 1985). In 1985, Congress amended the AWA by enacting the Improved Standards for Laboratory Animals Act, Pub. L. No. 99-198, 99 Stat. 1645. This amendment to the AWA instructed the USDA to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.” 7 U.S.C. § 2143(a)(1). These stan. . .

KOZINSKI, Circuit Judge, dissenting:
In holding that we can review withdrawal of proposed regulations an agency had no duty to adopt, my colleagues overlook the sea-change in administrative law wrought by Heckler v. Chaney, 470 U.S. 821, 831-32 (1985), which held that we have no authority to review an agency’s discretionary decision not to act. See The Supreme Court–Leading Cases: Judicial Review of Agency Inaction, 99 Harv. L. Rev. 264, 269 (1985) (hereafter “Judicial Review of Agency Inaction“) (”Chaney represents a significant departure from the trend of recent administrative law.”). Failure to appreciate the fundamental distinction between agency action and inaction permeates every aspect of the majority’s analysis, starting with the threshold question of standing. Standing 1. The majority wastes much toner trying to show that USDA’s Draft Policy at issue here would, if adopted, ameliorate the conditions plaintiffs complain about. Maj. op. at 18754-57. Even if this were true, which it is not, see pp. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LAZARENKO, No. 06-10273, a criminal appeal. The panel consisted of Sandra Day O’Connor, Associate Justice, and Susan P. Graber and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:
This unusual appeal follows the government’s seizure of approximately $2.5 million in assets from former Ukrainian Prime Minister Pavel Ivanovich Lazarenko (”Lazarenko”). A jury in the United States District Court for the Northern District of California convicted Lazarenko on several counts of money laundering in violation of 18 U.S.C. § 1956. The United States contends that it seized the funds and bonds law. . .