Judge Tallman writes a majority opinion. He admits that it's a "close case," but nonetheless affirms the denial of habeas relief. Judge Betty Fletcher dissents, arguing that it's not that close of a case, saying that "rarely has there been a case in which our obligation . . . was more clear than in this one." Judge Tallman then includes some pretty harsh footnotes responding to the dissent, as I discussed when the opinions were first issued.
And the Ninth Circuit takes the case en banc. Which is not especially surprising. Nor inconsistent with the proposition that being mean to Judge Betty Fletcher -- indisputably one of the nicest judges on the Ninth Circuit (if not the nicest) -- may retard rather than advance your case.
