Withers

Opinion by Judge PREGERSON; Dissent by Judge NOONAN.

ORDER

In response to a petition for panel rehearing from Plaintiff-Appellee United States of America, the majority opinion filed August 19, 2010, slip op. 12207, and appearing at 618 F.3d 1008 (9th Cir.2010), is hereby amended as follows:

At slip op. at 12220, line 31 [ 618 F.3d at 1017 ], after the sentence “Because the district court did not order the government to respond to Withers’s motion, the government never raised an affirmative procedural bar defense in the district court,” add the following sentence and citation: “Further, the district court did not give notice of procedural default on its own initiative. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).”

With this amendment, Judges Pregerson and Paez have voted to deny the petition for panel rehearing. Judge Noonan abstains from voting on the petition.

No further petitions for panel rehearing will be entertained.

OPINION

Michel Withers (‘Withers”) appeals the district court’s denial of his 28 U.S.C. § 2255 habeas motion. 1 Withers also appeals the district court’s decision that his notice of appeal of the district court’s denial of his § 2255 motion…

dissenting:

The Supreme Court has long sought to ensure that the criminal trial remains “the main event,” not a “tryout on the road” for a later habeas proceeding. Coleman v. Thompson, 501 U.S. 722, 747 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) (quoting Wainwright v. Sykes, 433 U.S. 72, 90 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977)). The “main event” in Withers’ case took place well over a dozen years ago. In the interests of finality and judicial economy, we can and should decide the remaining claims that the majority leaves for another day. Assuming Withers’ appeal to be timely, I would conclude that his public-trial and ineffective-assistance claims fail as a matter of law.

I.

The majority avoids resolving Withers’ claims through a mischievous misreading of our precedents interpreting Rule 4 of the Rules Governing § 2255 Cases. Relying on United States v. Schaflander, the majority holds that the dismissal of Withers’ petition was error because his legal arguments were not “palpably incredible or patently frivolous.” 743 F.2d 714, 717 (9th Cir.1984) (per curiam). But this language from Schaflander referred to the factual allegations contained in a habeas petition, not the legal…