A Denial of Capital Habeas Petition Affirmed, Plus Civil Procedure and Civil Rights Matters - Civil Rights Law - U.S. Ninth Circuit
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A Denial of Capital Habeas Petition Affirmed, Plus Civil Procedure and Civil Rights Matters

Pollard v. GEO Group, Inc., No. 07-16112, involved an action alleging Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons.  The court of appeals reversed the dismissal of the action, holding that 1) the company's employees acted "under color of federal law" for purposes of Bivens liability; and 2) a faithful application of Wilkie's two-part test counseled that state tort remedies alone were insufficient to displace Bivens and there were no "special factors counselling hesitation" in allowing plaintiff's suit to proceed.

In Mickey v. Ayers, No. 07-99006, a capital habeas matter, the court of appeals affirmed the denial of the petition, on the grounds that 1) the Japanese prison conditions did not overcome petitioner's will and render his confession involuntary; 2) there was nothing in the record to suggest any additional physical or psychological coercion accompanied petitioner's admissions in Hawaii; 3) any alleged deficiencies in counsel's representation were justified by the reasonable strategic decision to investigate a defense consistent with petitioner's extrajudicial statements; and 4) because certain harmful sexual deviancy evidence would have been admitted in the penalty phase had counsel taken petitioner's proposed path and since the jury must have relied heavily on the gruesome facts of the crime despite the "substantial" mitigation case, the court's "confidence in the outcome" was not undermined by petitioner's counsel's alleged deficiencies.

Lahiri v. Universal Music & Video Dist. Corp., No. 09-55111, involved plaintiff's counsel's appeal from an order by the district court sanctioning him for his five-year bad faith pursuit of a frivolous copyright infringement claim.  The Ninth Circuit affirmed, holding that 1) had counsel, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of plaintiff's 21-year old composition, he would have known plaintiff had no copyright interest in music he composed for hire; 2) counsel's repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith; and 3) the district court carefully excluded inadequately documented costs, as well as taxable costs not included in defendants' bill of costs.

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