The Ninth Circuit Court of Appeals today released an order and opinion in DENNIS v. EXPERIAN INFORMATION, No. 04-56230, a federal appeal. The panel consisted of Alex Kozinski, Diarmuid F. O’Scannlain and Jay S. Bybee, Circuit Judges.

KOZINSKI, Circuit Judge:
We address whether a credit reporting agency can be liable under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, when it overlooks or misinterprets documents in a court file. Facts In October 2002, Jason Dennis was sued for unlawful detainer. Eventually, his landlord agreed to drop the suit, in exchange for $2,938.50, payable in installments. The parties agreed that no judgment would be entered against Dennis, and filed a written stipulation to that effect. The court’s Register of Civil Actions inaccurately reports this event as: “11/ 25/2002 Court Trial Concluded - Judgment Entered.” Two months later, after Dennis paid the promised sums, the parties presented a “Request for Dismissal,” which the court clerk endorsed and filed. The corresponding Register entry accurately reports how this action resolved the dispute: “01/ 28/2003 Dismissal Without Prejudice - Entire Action, Filed & Entered.” Defendant Experian Information Solutions, Inc. subsequently prepared a credit report on Dennis, which indicated that a “Civil Claim judgment” had been entered against him in the amount of $1,959. Dennis called Experian and . . .

The petition for rehearing is granted. The previous opinion, 485 F.3d 443 (9th Cir. 2007), is withdrawn and replaced by the opinion filed concurrently herewith. Either party may file a new petition for rehearing or petition for rehearing en banc. OPINION KOZINSKI, Circuit Judge:
We address whether a credit reporting agency can be liable under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, when it overlooks or misinterprets documents in a court file. Facts In October 2002, Jason Dennis was sued for unlawful detainer. Eventually, his landlord agreed to drop the suit, in exchange for $2,938.50, payable in installments. The parties agreed that no judgment would be entered against Dennis, and filed a written stipulation to that effect. The court’s Register of Civil Actions inaccurately reports this event as: “11/ 25/2002 Court Trial Concluded - Judgment Entered.” Two months later, after Dennis paid the promised sums, the parties presented a “Request for Dismissal,” which the court clerk endorsed and filed. The corresponding Register entry accurately reports how this action resolved the dispute: “01/ 28/2003 Dismissal Without Prejudice - Entire Action, Filed & Entered.” Defendant Experian Information Solutions, Inc. subsequently prepared a credit report on Dennis, which indicated that a “Civil Claim judgment” had been entered against him in the amount of $1,959. Dennis called Experian and . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. JENKINS, No. 06-50049, a criminal appeal. The panel consisted of William C. Canby, Jr. and Sidney R. Thomas, Circuit Judges, and Suzanne B. Conlon, District Judge.

CANBY, Circuit Judge:
The United States appeals the district court’s dismissal of an indictment of Sharon Ann Jenkins for alien smuggling. The . . .

The majority opinion filed by this court on July 17, 2007, slip op. at 8677, is amended as follows:
At slip op. p. 8687, delete the second and third sentences on the page and the included citations and parentheticals (thus deleting the material beginning “The fact that separate charges . . .” and ending “. . . from associated individuals.”), and insert the following passage in place of the deleted passage: The government relies on United States v. Martinez, 785 F.2d 663 (9th Cir. 1986). Martinez cited United States v. Robison, 644 F.2d 1270, 1272 (9th Cir. . . .

The Ninth Circuit Court of Appeals today released an opinion in OREGON NATURAL RESOUCES v. GOODMAN, No. 07-35110, an appeal in a civil action against the United States. The panel consisted of Stephen Reinhardt, Cynthia Holcomb Hall, and Milan D. Smith, Jr., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:
Appellants Oregon Natural Resources Council, the Sierra Club and Headwaters (collectively, ONRC) challenge the United States Forest Service’s (Forest Service) approval of the proposed expansion of the Mount Ashland Ski Area (MASA), located in Oregon’s Siskiyou Mountains within the Rogue River and Klamath National Forests. The district court granted summary judgment in favor of the Forest Service, finding it had not violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., or the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., in authorizing the MASA expansion. We hold that the Forest Service failed to properly evaluate the impact of the proposed MASA expansion on the Pacific fisher, in violation of both the NEPA and the NFMA, and that it violated the NFMA by failing to appropriately designate Riparian Reserves and Restricted Watershed terrain, as required by the Rogue River . . .

The Ninth Circuit Court of Appeals today released an opinion in CORNEJO v. COUNTY OF SAN DIEGO, No. 05-56202, a civil rights appeal. The panel consisted of Arthur L. Alarcón, Dorothy W. Nelson, and Pamela Ann Rymer, Circuit Judges.

RYMER, Circuit Judge:
This appeal requires us to resolve an issue left open in our en banc decision in United States v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000): whether Article 36 of the Vienna Convention on Consular Relations creates judicially enforceable rights that may be vindicated in an action brought under 42 U.S.C. § 1983. Ezequiel Nunez Cornejo’s complaint seeks damages and injunctive relief against the County of San Diego, several deputy sheriffs, and various cities within the county on behalf of a class of foreign nationals who were arrested and detained without being advised of their right to have a consular officer notified as required by Article 36. The district court dismissed the action, concluding that Cornejo could not bring a § 1983 claim for violation of the Convention because it creates no private rights of action or corresponding remedies. We agree with the district court that Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and proApril 24, 1963, 21 U.S.T. 77, 100-101, 569 U.N.T.S. 261. . . .

The Ninth Circuit Court of Appeals today released an opinion in STENSON v. LAMBERT, No. 05-99011, a habeas corpus appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Andrew J. Kleinfeld and Carlos T. Bea, Circuit Judges.

SCHROEDER, Chief Circuit Judge:
Darold Stenson was convicted and sentenced to death in Washington State in 1994 for the 1993 first-degree murders of his wife, Denise Stenson, and his business partner, Frank Hoerner. The trial was punctuated by disagreements between Stenson and his appointed counsel, Fred Leatherman. Leatherman believed that the trial phase was not winnable and, therefore, thought he should focus on the penalty phase, to spare Stenson from the death penalty. Stenson believed Leatherman should focus on an acquittal. The most serious specific issue during the guilt phase was whether, during crossexamination of Frank Hoerner’s wife (also named Denise), Leatherman should attempt to suggest that she, not Stenson, committed the murders. Relatedly, Stenson believed Leatherman should introduce “other suspect” evidence to implicate Denise Hoerner. Leatherman refused to take this approach, because the evidence suggesting that Denise Hoerner had committed the murders was virtually non-existent. The most serious penalty-phase issue was whether Leatherman was ineffective for conceding Stenson’s guilt after the jury had decided the issue in the guilt phase, in order to persuade the . . .

The Ninth Circuit Court of Appeals today released an opinion in COLLINS v. D.R. HORTON, INC., No. 05-15737, a diversity appeal. The panel consisted of Dorothy W. Nelson, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge:
Julie E. Collins and Robert B. Ryan (”Appellants”) appeal the district court’s denial of their motion to vacate an arbitration award. Appellants contend their motion should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act (”FAA”) is more limited than judicial review of a district court judgment. We hold the arbitrators did not manifestly disregard the law because no “well defined, explicit, and clearly applicable” law existed to . . .

The Ninth Circuit Court of Appeals today released an opinion in MELENDEZ v. GONZALES, No. 05-73581, an administrative appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Stephen S. Trott, Circuit Judge, and Gary A. Feess, District Judge.

FEESS, District Judge:
This case presents the question whether an alien may avoid the immigration consequences of a drug conviction as a “first time offender” when, as the result of a previous arrest for drug possession, he was granted “pretrial diversion” under a state rehabilitation scheme that did not require him to plead guilty. We hold that he may not. I. INTRODUCTION Petitioner William de Jesus Melendez appeals from a decision of the Board of Immigration Appeals (”BIA”) denying his motion for adjustment of status and ordering him removed to El Salvador. Petitioner entered the United States without having been admitted or paroled, and was arrested and prosecuted for possession of a controlled substance by the State of California in 1996. The 1996 prosecution resulted in “pretrial diversion,” and because Petitioner successfully completed a drug education, treatment, or rehabilitation program, the criminal charges were eventually dismissed without Petitioner entering a plea or being found guilty. In 1998, the government initiated removal proceedings, after which Petitioner married a United States citizen who in early 1999 petitioned for an immigrant relative visa (form I-130) on Petitioner’s behalf. The I-130 was approved, but whatever advantage Petitioner might have gained as a result was undermined when he was arrested again and convicted in late 1999 of possession of a controlled substance. . . .

Stephen S. Trott, Circuit Judge, and Gary A. Feess,* District Judge. Opinion by Judge Feess *The Honorable Gary A. Feess, United States District Judge for the Central District of California, sitting by designation. 12653 . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in NAVARRO-LOPEZ v. GONZALES, No. 04-70345, an administrative appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain, Michael Daly Hawkins, Sidney R. Thomas, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

PREGERSON, 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 section 32 for accessory after the fact was a conviction for a crime involving moral turpitude. Based on Navarro-Lopez’s conviction, the IJ concluded he was inadmissible and ineligible for cancellation of removal. We have jurisdiction pursuant to 28 U.S.C. § 1252(a)(1), and we grant the petition. . . .

REINHARDT, Circuit Judge, Concurring, joined by Chief Judge SCHROEDER and Judges KOZINSKI, HAWKINS, THOMAS, WARDLAW, W. FLETCHER, and PAEZ: I join Judge Pregerson’s opinion except for Section A(2). Although I agree that accessory after the fact is not a crime of moral turpitude, I cannot agree that offenses involving fraud are subject to the same test as other crimes when we determine which offenses fall within that classification. Generally, crimes are deemed to be offenses of moral turpitude if they are base, vile, or depraved — if they offend society’s most fundamental values, or shock society’s conscience. Fraudulent offenses, however, are so classified simply by virtue of their fraudulent nature. Such has been the clearly established rule with respect to fraud since at least 1951. Jordan v. De George, 341 U.S. 223, 227-32 (1951). Nevertheless, Judge Pregerson is correct that “accessory after the fact” is not a crime of moral turpitude. I. Judge Pregerson’s opinion states that “crimes involving fraud are not a per se category of crimes involving moral turpitude,” but rather fraud is “an example of conduct that may fall under the umbrella of inherently base and vile conduct that shocks the conscience.” According to the Judge Pregerson, courts should evaluate crimes involving fraud the same way that they evaluate other crimes, by determining whether they are base, vile, or depraved. Doing so would, however, directly contradict what the Supreme Court stated unequivocally in Jordan to be the universal rule: “Without exception . . . a crime in which fraud is an ingredient involves moral turpitude.” 341 U.S. at 227. It would also directly contradict what we reiterated only two years ago in Carty v. Ashcroft: “Crimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity.” 395 F.3d 1081, 1083 (9th Cir. 2005). There was, in fact, nothing new in Carty, as far as this circuit is con. . .

TALLMAN, Circuit Judge, with whom Circuit Judges O’SCANNLAIN, RAWLINSON, CLIFTON, and BYBEE join, dissenting:
We took this case en banc to clarify our jurisprudence regarding crimes of moral turpitude. The fractured decision we announce today only compounds the uncertainty attending this arcane subject of criminal opprobrium. Navarro-Lopez’s petition for review of his final order of removal should be denied because the crime of being an accessory after the fact in violation of California Penal Code section 32 is a crime involving moral turpitude under the categorical approach established in Taylor v. United States, 495 U.S. 575 (1990). In reaching the opposite conclusion, the majority employs dubious reasoning and ignores relevant case law from our sister circuits, creating yet another unnecessary circuit split. I respectfully dissent. I The opinion authored by Judge Pregerson offers various definitions for “moral turpitude,” some quite vivid, before concluding that a conviction under California Penal Code section 32 does not, categorically, fit within the appropriate definition. See Maj. op. at 12570-71. For reasons outlined in Part. . .

BEA, Circuit Judge, dissenting, with whom Judge O’SCANNLAIN joins:
Navarro-Lopez was convicted of a crime, being an accessory after the fact in violation of California Penal Code section 32. To determine whether this section 32 conviction is a crime involving moral turpitude so as to render NavarroLopez inadmissible to this country, a federal court must “look to the manner in which the term `moral turpitude’ has been applied by judicial decision.” Jordan v. De George, 341 U.S. 223, 227 (1951). The question whether a state crime qualifies as a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I) cannot be answered, as the majority attempts to do, by turning to the categorical approach of Taylor v. United States, 495 U.S. 575 (1990). The categorical approach of Taylor asks whether the definition of the state crime proscribes any set of acts with a realistic probability of prosecution by the state that fall outside the “generic,” or federal, definition of the crime. See Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007); Taylor, 495 U.S. at 598. To answer that question requires first a determination of what are the elements of the federal crime. For example, in FernandezRuiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc), a federal statute supplied the answer: “crime of violence” in an immigration removal statute was defined elsewhere in the. . .

The Ninth Circuit Court of Appeals today released an opinion in MENKEN v. EMM, No. 05-16467, a diversity appeal. The panel consisted of Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges, and J. Michael Seabright, District Judge.

SEABRIGHT, District Judge:
On December 12, 2003, Plaintiff-Appellant David Menken (”Menken”) filed a Complaint in Arizona state court alleging negligence, interference with contractual relations, civil extortion, and a violation of Arizona Revised Statutes (”A.R.S.”) § 33-420. Defendant-Appellee Tomerlin removed the case (based on diversity of citizenship) to the United States District Court for the District of Arizona on March 24, 2004. The district court dismissed for lack of personal jurisdiction. . . .

BYBEE, Circuit Judge, concurring in part and concurring in the judgment:
I fully agree with Judge Seabright’s opinion with respect to the timeliness of Menken’s appeal. I also concur in the majority’s judgment with respect to personal jurisdiction: Menken 5Given our disposition on personal jurisdiction, we do not reach Menken’s remaining issues on appeal, including his challenge to the denial of his motions to retain in rem jurisdiction and to amend the Complaint. . . .

The Ninth Circuit Court of Appeals today released an opinion in BROWN v. ORNOSKI, No. 05-99008, a habeas corpus appeal. The panel consisted of Michael Daly Hawkins, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.

HAWKINS, Circuit Judge:
Petitioner Albert Greenwood Brown, Jr. (”Brown”) was convicted in California and sentenced to death for the rape and murder of a fifteen-year-old girl. The district court denied his petition for a writ of habeas corpus, but granted a certificate of appealability (”COA”) on two claims that Brown received ineffective assistance of counsel in the sentencing phase of his trial. We expanded the COA to include two additional claims, one also involving penalty phase ineffective assistance of counsel, and another involving Brown’s claim that lethal injection violates the Eighth Amendment. We affirm the district court’s denial of the writ. STATEMENT OF FACTS AND PROCEDURAL HISTORY On October 28, 1980, about 7:30 a.m., 15-year-old Susan Jordan left her home to walk to Arlington High School. People v. Brown, 40 Cal. 3d 512, 522 (1985). She never arrived, and efforts throughout the day to locate her were unsuccessful. That evening, Susan’s mother answered the telephone and a caller asked “Hello, Mrs. Jordan, Susie isn’t home from school yet, is she?” Mrs. Jordan replied that she was not. The voice then declared, “You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.” At Mrs. Jordan’s request, the caller repeated the information, then hung up. Within a half-hour, another call said, “On the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove.” Id. While police officers were at the Jordan home later that evening, a third call was received. The caller said, “You can find Sue’s identification in a telephone booth at the Texaco station at Arlington and Indiana.” Id. Officers were sent to the Texaco station, where they discovered two Arlington High . . .