Milke, et al v. Schriro

Filing

FILED OPINION (ALEX KOZINSKI, JEROME FARRIS and CARLOS T. BEA) Milke is entitled to habeas relief. We therefore REVERSE the decision of the district court and REMAND with instructions to GRANT a conditional writ of habeas corpus setting aside her convictions and sentences. Prior to issuing the writ, the district court shall order the state to provide Milke s counsel with Saldate s police personnel records covering all of his years of service, including records pertaining to any disciplinary or Internal Affairs investigations and records pertaining to performance evaluations. If the state believes that any of the materials it is ordered to provide are not relevant to Brady or Giglio, it may present them to the district court in camera, and the district court shall review them to determine whether they are relevant to Brady or Giglio, as explicated in our opinion. Defense counsel shall be allowed to see the documents and to argue why each might be Brady or Giglio material. The district court may, in its discretion, enter a protective order requiring all contested documents to be filed under seal and to be designated For Attorneys Eyes Only, and setting such other conditions as the district court finds necessary and proper, while the district court decides whether the contested materials are relevant to Brady or Giglio. After the state has turned over these records, it shall provide a statement under oath from a relevant police official certifying that all of the records have been disclosed and none has been omitted, lost or destroyed. If a relevant police official is unable or unwilling to provide such a certification, the district court shall hold an evidentiary hearing to determine whether any records have not been produced, and, if so, why. Petitioner s counsel shall be given a reasonable period of discovery prior to the hearing. This panel retains jurisdiction over any appeal arising from this remand. Upon production of the certification described above or the conclusion of the evidentiary hearing, the district court shall order Milke released unless the state notifies the court within 30 days that it intends to retry Milke, and actually commences Milke s retrial within 90 days. The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents. Judge: AK Authoring, Judge: AK Concurring, FILED AND ENTERED JUDGMENT. [8550148]--[COURT UPDATE: PDF of opinion replaced with corrected version (wrong headers on some of the pages). Resent NDA. 03/14/2013 by RY]

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Case: 07-99001 03/14/2013 ID: 8550148 DktEntry: 141-2 Page: 1 of 5 United States Court of Appeals for the Ninth Circuit Office of the Clerk 95 Seventh Street San Francisco, CA 94103 Information Regarding Judgment and Post-Judgment Proceedings Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice. Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper. Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3) (1) A. • • B. • Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case. Purpose (Rehearing En Banc) A party should seek en banc rehearing only if one or more of the following grounds exist: Post Judgment Form - Rev. 12/2009 1 Case: 07-99001 ► ► ► 03/14/2013 ID: 8550148 DktEntry: 141-2 Page: 2 of 5 Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or The proceeding involves a question of exceptional importance; or The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity. (2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the • due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2. (3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly. (4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32. Post Judgment Form - Rev. 12/2009 2 Case: 07-99001 • • 03/14/2013 ID: 8550148 DktEntry: 141-2 Page: 3 of 5 The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms. You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise. Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms. Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806. Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► West Publishing Company; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Kathy Blesener, Senior Editor); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter. Post Judgment Form - Rev. 12/2009 3 Case: 07-99001 03/14/2013 ID: 8550148 DktEntry: 141-2 Page: 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09) United States Court of Appeals for the Ninth Circuit BILL OF COSTS Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs. 9th Cir. No. v. The Clerk is requested to tax the following costs against: Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1 REQUESTED Each Column Must Be Completed No. of Docs. Pages per Doc. Cost per Page* TOTAL COST ALLOWED To Be Completed by the Clerk No. of Docs. Cost per Page* Pages per Doc. TOTAL COST Excerpt of Record $ $ $ $ Opening Brief $ $ $ $ Answering Brief $ $ $ $ Reply Brief $ $ $ $ Other** $ $ $ $ TOTAL: $ TOTAL: $ * Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1. ** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered. Attorneys' fees cannot be requested on this form. Continue to next page. Case: 07-99001 03/14/2013 Form 10. Bill of Costs - Continued I, ID: 8550148 DktEntry: 141-2 Page: 5 of 5 , swear under penalty of perjury that the services for which costs are taxed were actually and necessarily performed, and that the requested costs were actually expended as listed. Signature ("s/" plus attorney's name if submitted electronically) Date Name of Counsel: Attorney for: (To Be Completed by the Clerk) Date Costs are taxed in the amount of $ Clerk of Court By: , Deputy Clerk

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