The Ninth Circuit Court of Appeals today released an opinion in DUNCAN v. ORNOSKI, No. 05-99010, a habeas corpus appeal. The panel consisted of Stephen Reinhardt, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

REINHARDT, Circuit Judge:
Once again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel. Appellant Henry Earl Duncan was convicted of robbery and first-degree murder on March 3, 1986. The jury found the special circumstance allegation to be true and, after a brief penalty phase hearing, sentenced Duncan to death. The California Supreme Court affirmed the judgment on direct appeal and subsequently denied Duncan’s petition for writ of habeas corpus on the merits. Duncan filed a federal habeas petition in the Central District of California. The district court denied most of his claims and then held a four-day evidentiary hearing, after which it rejected the rest. Duncan appeals. We conclude that Duncan’s lawyer’s performance was deficient during the guilt phase of his trial because he failed to investigate and present evidence that the blood samples from the crime scene that did not belong to the victim also did not belong to Duncan. This evidence would have tended to establish that Duncan had an accomplice who was in the murder room on the night of the murder, shed blood, and used the first aid kit on the wall to treat his wounds. Indeed, the evidence would have been sufficient to support an inference that. . .

The Ninth Circuit Court of Appeals today released an opinion in BUTLER v. CURRY, No. 07-56204, a habeas corpus appeal. The panel consisted of Cynthia Holcomb Hall, Susan P. Graber, Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an “upper term” sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 127 S. Ct. 856 (2007), agreed, and granted the writ. The State contends that Cunningham, which struck down California’s determinate sentencing law (”DSL”), announced a “new rule” that cannot be applied on collateral review. In the alternative, the State maintains that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (”AEDPA”) have not been met, and that, even if they were, there was no constitutional violation. We conclude that the result in Cunningham was clearly dictated by the Supreme Court’s Sixth Amendment case law, in particular by Blakely v. Washington, 542 U.S. 296 (2004), decided before Butler’s conviction became final. The state court decision in Butler’s case was contrary to this clearly established law. Further, Butler’s constitutional rights were violated when the statutory maximum for his crime was increased on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. We cannot, however, determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. For that reason, we remand to the district court for an evidentiary hearing. . . .

The Ninth Circuit Court of Appeals today released an opinion in STATE OF ARIZONA v. USDC-AZT, No. 07-70300, a habeas corpus appeal. The panel consisted of Alex Kozinski, Chief Judge, Ronald M. Gould and Consuelo M. Callahan, Circuit Judges.

PER CURIAM This is a petition for a writ of prohibition. Petitioners-State of Arizona, its Attorney General Terry Goddard and Assistant Attorney General Paul E. Carter –seek our intervention, pursuant to 28 U.S.C. § 1651(a), to prohibit the district court from enforcing portions of a scheduling order entered in a prisoner civil rights lawsuit filed by real party in interest Robert V. Tuzon. Petitioners object to provisions of the order that call for petitioners to undertake a review of the subject matter of Tuzon’s amended complaint, and to file a report with the district court about their findings. We requested a response from the district court because the propriety of the district court’s order is an issue of first impression in this circuit. We have reviewed the responses from the district court, petitioners and the real party in interest, as well as the record of the district court case, and we deny the petition. I. FACTS AND PROCEDURAL HISTORY On May 6, 2004, Tuzon filed a complaint seeking relief under 42 U.S.C. § 1983. On March 1, 2005, the district court screened the complaint, granted Tuzon in forma pauperis status and directed that the complaint be served. On January 17, 2006, Tuzon filed an amended complaint alleging, inter alia, damages in connection with (1) an attack on Tuzon by other. . .

The Ninth Circuit Court of Appeals today released an opinion in CORRELL v. SCHRIRO, No. 03-99006, a habeas corpus appeal. The panel consisted of Mary M. Schroeder, Diarmuid F. O’Scannlain and Sidney R. Thomas, Circuit Judges.

THOMAS, Circuit Judge:
Michael Emerson Correll, an Arizona inmate sentenced to death, appeals the district court’s denial of his petition for writ of habeas corpus following our remand for an evidentiary hearing. We reverse. I This capital case arises under a federal habeas corpus provisions that have been supplanted by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (”AEDPA”), and a state capital sentencing statute that has since been repealed. The factual history of this case was detailed in our earlier opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir. . . .

In response to the petition for rehearing, the panel has elected to file an amended opinion and amended dissent. The amended opinion and dissent are filed concomitantly here. . .

CALLAHAN, Circuit Judge, with whom KOZINSKI, Chief Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, and BEA, Circuit Judges, join, in dissenting from the denial of rehearing en banc:
I respectfully dissent from our denial of rehearing en banc because the panel majority fails to give deference to the district court’s factual findings as required by Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006), and improperly interprets the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), so as to create an almost irrebutable presumption of prejudice. Over twenty years ago, Michael Correll was convicted of three counts of first-degree murder, with four aggravating circumstances, and sentenced to death. State v. Correll, 148 . . .

O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s conclusion that Correll has met the “highly demanding and heavy burden of establishing actual prejudice” in the pursuit of his claim of ineffective assistance of counsel during the penalty phase of the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000)) (internal quotation marks omitted). The majority ignores the mountain of precedent which requires us, in assessing prejudice, to consider not only the likely benefits of the mitigating evidence Correll’s counsel failed to present, but also its likely drawbacks. In addition, the majority substitutes its independent analysis of the record for that of the district court, relying on its own view of the evidence rather than considering, as we must, the effect the evidence would have had on an Arizona . . .

The Ninth Circuit Court of Appeals today released an opinion in WOODS v. CAREY, No. 05-55302, a habeas corpus appeal. The panel consisted of Alfred T. Goodwin, Harry Pregerson, and Dorothy W. Nelson, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:
Earnest Cassell Woods, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The district court dismissed the petition, concluding it was barred as successive under 28 U.S.C. § 2244(b). We vacate and remand, with instructions that the district court construe Woods’s pro se petition as a motion to amend the habeas petition that was still pending before the district court at the time this new petition was filed. FACTUAL AND PROCEDURAL BACKGROUND In 1987, Woods was convicted by a jury in the San Diego County Superior Court of second degree murder and unlawful . . .

The Ninth Circuit Court of Appeals today released an opinion in MILLER v. BLACKETTER, No. 06-36090, a habeas corpus appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a defendant, whose attorney moved on the morning of trial to withdraw from the case and to postpone proceedings, was denied his right to the counsel of his choice when the trial judge denied the motions. I A Thirty-four-year-old Dustin Vade Miller, unarmed but purporting to be holding a gun, robbed several small retail establishments over a ten-day period in 1998. He was apprehended by police, fought back, and later confessed to the crimes. Miller was charged in Lane County, Oregon, with several counts of robbery, assaulting a public safety officer, and resisting arrest. He pled not guilty to all counts and Janise Augur, of the Lane County Public Defender’s Office, was appointed to represent him. Trial was scheduled, but was continued for thirty days upon Augur’s motion because she had not yet received a tape of Miller’s confession from the State. During this period, Augur and the State attempted to negotiate a plea agreement, but never agreed to the terms. On the evening before trial, Miller left a telephone message on Augur’s home answering machine stating that he was no longer comfortable with her representation and that he wanted a new lawyer. In response, Augur filed motions the next morning to withdraw as Miller’s counsel and to postpone trial. . . .

The Ninth Circuit Court of Appeals today released an opinion in PINHOLSTER v. WOODFORD, No. 03-99003, a habeas corpus appeal. The panel consisted of Alex Kozinski, Chief Judge, Raymond C. Fisher and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:
Scott Lynn Pinholster faces a death sentence in California for murdering Thomas Johnson and Robert Beckett on January 9, 1982, robbing Johnson and Beckett with intentional infliction of great bodily injury and with personal use of a knife, robbing Todd Croutch with a firearm, and burglarizing Michael Kumar’s residence. The jury found two special circumstances: Pinholster, in the same proceeding, was convicted of more than one murder, Cal. Penal Code § 190.2(a)(3) (1984), and he committed the murders during a robbery and a burglary, id. § 190.2(a)(17)(i), (vii). The jury fixed Pinholster’s penalty at death, and on June 4, 1984, the Los Angeles County Superior Court so sentenced him. On automatic appeal, the California Supreme Court, in an opinion written by Justice Stanley Mosk, set aside one multiple-murder special-circumstance finding but otherwise affirmed the judgment. See People v. Pinholster, 824 P.2d 571 (Cal. 1992). Pinholster sought a writ of habeas corpus. He challenged his convictions and death sentence. The California Supreme Court summarily denied Pinholster’s state petition for habeas corpus. Pinholster filed a federal habeas corpus petition but the district court dismissed it when the parties stipulated that the petition contained unexhausted claims. Pinholster returned to state court to exhaust those claims. On October 1, 1997, the California Supreme Court denied Pinholster’s second habeas petition. Pinholster then filed an amended federal habeas petition and requested an evidentiary hearing on several claims. The district court granted the State’s motion for summary judgment on Pinholster’s claims challenging the constitutionality of his convictions. Pinholster appeals the district court’s denial of his request for an evidentiary hearing on his guilt phase ineffective assistance of counsel claims. However, the . . .

FISHER, Circuit Judge, dissenting:
I respectfully dissent. This case is controlled by a trio of recent Supreme Court decisions holding that petitioners’ Sixth Amendment rights were violated when their lawyers failed to present available mitigating evidence during the penalty phases of their capital trials. See Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). The majority’s attempts to distinguish these cases are not persuasive. Pinholster’s counsel performed at least as deficiently as the lawyers in the Court’s recent decisions; and Pinholster was prejudiced as a result since the mitigating evidence that could have been introduced on his behalf was at least as strong as that in Williams, Wiggins and Rompilla, and the aggravating evidence against him was if anything weaker than that in Williams and Rompilla. Binding Supreme Court precedent therefore compels the conclusion that the state court’s summary denial of Pinholster’s penalty phase ineffective assistance of counsel (IAC) claim was objectively unreasonable. I would therefore remand for the district court to issue a writ vacating Pinholster’s sentence, unless within a reasonable time set by the court the State conducts a new penalty phase trial or imposes a lesser sentence consistent with law. I. Before addressing the majority’s penalty phase analysis, I pause to note my partial disagreement with its resolution of Pinholster’s guilt phase IAC claim. I agree that the district . . .

The Ninth Circuit Court of Appeals today released an opinion in CHOE v. TORRES, No. 06-56634, a habeas corpus appeal. The panel consisted of Alex Kozinski, Chief Judge, Johnnie B. Rawlinson, Circuit Judge, and Harold Baer, Jr., Senior District Judge.

KOZINSKI, Chief Judge:
We consider whether the district court erred in denying Man-Seok Choe’s habeas corpus petition challenging certification of his extradition to the Republic of Korea. Facts Choe is a Korean citizen and a resident of Los Angeles. In the 1990s, he traveled frequently to Korea on business, where he was acquainted with important political figures. During . . .

The Ninth Circuit Court of Appeals today released an opinion in RICHTER v. HICKMAN, No. 06-15614, a habeas corpus appeal. The panel consisted of Robert R. Beezer, Stephen S. Trott, and N. Randy Smith, Circuit Judges.

BEEZER, Circuit Judge:
Appellants in these two consolidated cases were jointly convicted of murder, attempted murder, robbery and burglary in California state court. They were sentenced to life in prison without the possibility of parole. In the present action, they appeal the district court’s denial of writs of habeas corpus. Appellants allege that they received ineffective assistance of counsel at trial in violation of Strickland v. Washington, 466 U.S. 668 (1984). Appellants further allege that the prosecution suppressed exculpatory evidence at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Appellant Christian Branscombe (”Branscombe”) argues that his trial counsel failed to engage in “meaningful adversarial testing” in viola. . .

The Ninth Circuit Court of Appeals today released an opinion in HARVEST v. CASTRO, No. 05-16879, a habeas corpus appeal. The panel consisted of John R. Gibson, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

TASHIMA, Circuit Judge:
We must decide whether and, if so, under what circumstances, a district court has the authority to modify a conditional writ of habeas corpus after the time provided in the order has lapsed. We hold that the district court does have such authority, but that such modifications may only be made pursuant to the Rules of Civil Procedure. In this case, the State has failed to demonstrate that relief under Rule 60 is warranted; therefore, we reverse the district court, concluding that it abused its discretion when it modified the conditional writ. We remand with instructions for the district court to grant the unconditional writ of habeas corpus ordering the petitioner’s release. JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. BACKGROUND Joshua Harvest was convicted of first-degree murder in California Superior Court. After exhausting his state remedies, Harvest challenged his conviction in a federal habeas action on the ground, among others, that the trial court had violated his right of confrontation under the Sixth and Fourteenth Amendments by improperly admitting Harvest’s accomplice’s hearsay testimony. We granted relief on that ground and remanded the case, directing “the district court to order the state to release the petitioner unless the state either modifies the conviction to one for second degree murder or retries the petitioner.” Harvest v. Castro, 121 F. App’x 216, 220 (9th Cir. 2005). Consistent with our mandate, the district court issued a conditional writ ordering the State to release . . .