Once again I find myself on the same side as Judges Kozinski, O'Scannlain, Tallman, Bybee, Callahan, Bea and Ikuta.
I said when the original opinion came out in June that I wasn't persuaded that the defendant was entitled to habeas relief. Today the above-mentioedn judges agree, and file dissents from the refusal to take the case en banc.
That the en banc vote failed wasn't surprising. Judges Kleinfeld and Milan Smith signed onto the original panel opinion. When you don't even have those votes, it's unlikely that the conservatives on the Ninth Circuit will prevail in an en banc call.
But that the vote failed doesn't mean the panel's opinion was right. I continue to think that it has some serious problems.
P.S. - I'm fairly loose with my language -- as befits a blog by an academic -- but Judge Kozinski is often even worse. His dissent from the denial includes a variety of lines like this one: "Prisoners will be dancing in their cells once word of this gets out." Hyperbole far beyond even anything I've ever written. Which is saying a lot.