At a teenage bonfire, Mr. Kelsey got into a fight with another participant and hit the guy in the face a couple of times. The guy died. Kelsey is subsequently tried and convicted of second degree murder at a trial in which his lawyer made no closing argument and didn't consult a forensic pathologist to figure out why the victim died. Kelsey was sentenced to 10 to 25 years in prison, but back in May, the Ninth Circuit reversed the district court's denial of Kelsey's habeas petition on grounds of ineffective assistance of counsel.
So at that point, it was a good 2023 for Kelsey. A chance to maybe get out of prison for a fight that went horribly wrong.
Judge Watford was on the panel that decided Kelsey's case. He'd been on the Ninth Circuit for a little over a decade, and decided it was time to move on. So, exactly a week after the opinion in Kelsey's case, Judge Watford resigned from the Ninth Circuit and joins Wilson Sonsini.
Thereafter, as usual, there's a petition for rehearing. Judge Friedland is drawn to replace Judge Watford. Since the original decision was a split one -- Judge Watford had joined Judge Gould's majority opinion, and Judge Graber dissented -- there's now a chance that the panel reverses its decision.
Which, today, it does. The panel withdraws the original published opinion and replaces it with an unpublished memorandum disposition that affirms the district court and keeps Mr. Kelsey in prison. Indeed, in the memorandum disposition, Judge Gould -- the original author of the opinion granting relief -- doesn't even dissent. So now it's unanimous the other way.
Undoubtedly to Mr. Kelsey's substantial chagrin.
