Frederick George Roehler, II v. Robert Borg, Attorney General of the State of California

957 F.2d 729 Frederick George ROEHLER, II, Petitioner-Appellant, v. Robert BORG, Attorney General of the State of California, Respondents-Appellees. No. 90-56232. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 1991. Decided March 4, 1992. Dissenting Opinion Amended April 10, 1992. 1 Dennis P. Riordan, Riordan & Rosenthal, San Francisco, Cal., and Wendy Cole Lascher and Edward L. Lascher, Lascher & Lascher, Ventura, Cal., for petitioner-appellant. 2 David F. Glassman, Asst. Atty. Gen. and Donald F. Roeschke, Supervising Deputy Atty. Gen., Los Angeles, Cal., for respondents-appellees. 3 Before REINHARDT and FERNANDEZ, Circuit Judges, and SMITH, District Judge. * 4 Prior Report: 945 F.2d 303 . 5 ORDER AND DISSENT FROM DENIAL OF LEAVE TO FILE A PETITION FOR REHEARING 6 The motion for leave to file petition for rehearing (and to file the associated petition for rehearing en banc) is DENIED. 1 7 REINHARDT, Circuit Judge, dissenting from the denial of leave to file a petition for rehearing: 8 This is a close case. The evidence against Roehler was entirely circumstantial: a review of its sufficiency requires an intensive fact-bound examination of the…

dissenting from the denial of leave to file a petition for rehearing:

This is a close case. The evidence against Roehler was entirely circumstantial: a review of its sufficiency requires an intensive fact-bound examination of the voluminous records of Roehler’s trial. That is not an easy task. The case is the type in which an error can easily be made. Our opinion does not say that we are persuaded *730 that Roehler murdered his wife and stepson; instead, we employed — as we are required to do — a highly deferential test and concluded only that we could not say that “no rational trier, of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 , 99 S.Ct. 2781, 2792 , 61 L.Ed.2d 560 (1979). On that basis we upheld Roehler’s sentence of life imprisonment without the possibility of parole.

Our decision is neither final nor infallible. Cf. Brown v. Allen, 344 U.S. 443, 540 , 73 S.Ct. 397, 427 , 97 L.Ed. 469 (1953) (Jackson, J., concurring in the result) (“We are not final because we are infallible, but we are infallible only because we are final.”). A major safeguard against the possibility— indeed, the eventual inevitability — of a…

ORDER AND DISSENT FROM DENIAL OF LEAVE TO FILE A PETITION FOR REHEARING

The motion for leave to file petition for rehearing (and to file the associated petition for rehearing en banc) is DENIED. 1

. In light of Judge Reinhardt’s dissent, we would only add that we do not find the reasons for still another extension of time to be persuasive. Moreover, this panel has already given extended, detailed, and careful consideration to all of Roehler’s arguments.