Marvin Howard Bockting v. Robert Bayer

418 F.3d 1055 Marvin Howard BOCKTING, Petitioner-Appellant, v. Robert BAYER, Respondent-Appellee. No. 02-15866. United States Court of Appeals, Ninth Circuit. August 11, 2005. Marvin Howard Bockting, Carson City, NV, pro se. Frances A. Forsman, Las Vegas, NV, for Petitioner-Appellant. Rene L. Hulse, Victor Hugo Schulze, II, Office of the Nevada Attorney General, Las Vegas, NV, for Respondent-Appellee. Before WALLACE, NOONAN, and McKEOWN, Circuit Judges. ORDER 1 Judge McKeown votes to deny the petition for rehearing en banc, and Judge Noonan so recommends. Judge Wallace recommends granting the petition for rehearing en banc. 2 The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing. 3 The petition for rehearing en banc is DENIED. 4 O'SCANNLAIN, Circuit Judge, with whom KOZINSKI, KLEINFELD, GRABER, GOULD, TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc: 5 Judge Wallace's dissent ably explains why the court errs in holding that…

dissenting from denial of rehearing en banc:

Judge Wallace’s dissent ably explains why the court errs in holding that the new rule established in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), applies retroactively. See Bockting v. Bayer, 399 F.3d 1010, 1024 (9th Cir. Feb.22, 2005) (Wallace, J., concurring in part and dissenting in part). I write only to add a few additional reasons why I believe the majority’s holding— which conflicts with the conclusion of all five other circuits to have reached the issue, see infra at 10406-07 — is in serious tension with the retroactivity jurisprudence of the Supreme Court as well as our own court. With respect, I believe that we have erred in failing to rehear this case en banc.

I

A

The last time the Supreme Court had occasion to reverse this circuit’s holding that a new rule of criminal procedure applied retroactively, it instructed us as follows: “That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one without which the likelihood of an accurate conviction is seriously diminished.” Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519, 2523 , 159 L.Ed.2d 442…

ORDER

Judge McKeown votes to deny the petition for rehearing en banc, and Judge Noonan so recommends. Judge Wallace recommends granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing.

*1056 The petition for rehearing en banc is DENIED.