Uribe

Order; Dissent to Order by Chief Judge KOZINSKI; Dissent to Order by Judge BEA; Opinion by Judge MARBLEY.

ORDER

The opinion filed June 22, 2012, and published at 682 F.3d 1238 , is amended as follows:

On page 1243, left column, line 14, add the following footnote after the citation to United States v. Ressam: 585 F.3d 1247 (9th Cir. 2009) (en banc), we adopted a two-part test to more precisely and objectively apply our review for abuse of discretion. First we “consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.” Hinkson, 585 F.3d at 1251 . >

This footnote shall be designated as footnote 5, and the subsequent footnote, on page 1243, left column, line 35, shall be designated as footnote 6.

With this amendment, the panel has voted unanimously to deny the petition for rehearing. Judge M. Smith voted to deny the petition…

dissenting from the order denying the petition for rehearing en banc:

There’s a very good reason appellate panels must defer to the broad discretion of district courts in fashioning habeas remedies, a reason other than that the Supreme Court has said so: These remedies call for complex, fact-based work with numerous pleadings and balancing of multiple competing interests. When an appellate panel second-guesses the district court’s judgment, it’s liable to get things wrong, sometimes very wrong. Don’t believe me? Read on.

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Locked up awaiting trial, Kennard Johnson wanted a way out so he could see the birth of his son. Report and Recommendation of a U.S. Mag. Judge 15, Johnson v. Uribe, No. EDCV 10-0164-GW(RC) (C.D. Cal. Nov. 12, 2010). At Johnson’s urging, counsel negotiated a deal: Johnson would plead guilty to all charges and enhancements and receive the maximum sentence of fourteen years and four months, but he’d be furloughed prior to the start of the sentence so he could attend the birth. Id. at 15-16. But if Johnson adhered to the conditions of his release, the prosecutor would agree to a lower sentence of six years. Id. at 16. Johnson took the deal in time to see his…

dissenting from the order denying the petition for rehearing en banc,

Chief Judge Kozinski couldn’t be more right that the panel in this case abused its own discretion by failing to give the correct level of deference to trial courts. Failure to properly defer to district — and state — courts is a recurrent problem. See, e.g., Moore v. Czerniak, 574 F.3d 1092 (9th Cir.2009), rev’d by, Premo v. Moore, — U.S. -, 131 S.Ct. 733 , 178 L.Ed.2d 649 (2011); Hoffman v. Arave, 455 F.3d 926 (9th Cir.2006), rev’d by, Arave v. Hoffman, 552 U.S. 117 , 128 S.Ct. 749 , 169 L.Ed.2d 580 (2008); Collins v. Rice, 365 F.3d 667 (9th Cir.2004), rev’d by, Rice v. Collins, 546 U.S. 333 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006).

This problem is why we went en banc in United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc), cert. denied, — U.S. -, 131 S.Ct. 2096 , 179 L.Ed.2d 890 (2011), to revise and clarify exactly what “abuse of discretion” review entails. Hinkson held that, under abuse of discretion review, this court should not second guess the district court, so long as the district court’s finding was within its power to make. We also looked at the many ambiguous ways the abuse of…