En banc decision affirming the denial of a habeas petition seeking to set aside a felony murder conviction predicated on attempted robbery, in a case in which the trial court originally sentenced Taylor to life without parole based on a special-circumstance finding that he was the shooter, but resentenced him to a reduced term, as an aider and abettor, based on a subsequent determination that he was not the shooter. Taylor argued that the conviction should be set aside because the jury’s finding that he was the shooter meant that it had not found him guilty on a theory of aiding and abetting. The Court, on de novo review, as the claim had not previously been adjudicated on the merits in the state court proceedings, found that Taylor’s constitution right to a jury trial was not violated because the jury could have found him guilty as an aider and abettor or as the shooter and was not required to unanimously choose a particular theory. “Thus, the jury was not forced to determine Taylor’s identity as either shooter or lookout until it considered the special circumstances. Although the jury incorrectly determined Taylor’s identity when considering the special circumstances, those findings do not prove it rejected the valid lookout theory when considering Taylor’s guilty for felony murder.”
“Applying Skinner v. Switzer, we conclude that a claim challenging prison disciplinary proceedings is cognizable in habeas only if it will ‘necessarily spell speedier release’ from custody, meaning that the relief sought will terminate custody, accelerate the future date of release from custody, or reduced the level of custody.” [Overruling prior Ninth Circuit case law] In this case, both petitioners challenged disciplinary violations, which the district court dismissed as concerning conditions of confinement and not duration. In Nettles' case, the court found his restoration of lost good-time credits would not necessarily affect the duration of his sentence and dismissed his petition. The court found that in Santos’s case, because if successful his claim would result in an immediate release from the SHU, but not from prison, it would result in a quantum change in his custody level, therefore, properly raised in a habeas petition.
UPDATED: On January 20, 2016 the Court ordered that this case be reheard en banc.
En banc opinion on a §2255 habeas petition reversing the denial and holding that the reasoning in United States v. Alvarez, 132 S. Ct. 2357 (2012), invalidating on First Amendment grounds a statute prohibiting lying about being awarded military medals, also applied to 18 U.S.C. § 704(a), a provision of the Stolen Valor Act that previously criminalized the unauthorized wearing of such medals. (the statute was subsequently amended to remove the “wearing” language) The en banc Court overruled its previously contrary decision in United States v. Perelman. The court further held that the Alvarez decision applies retroactively because it was a decision holding that a substantive federal statute did not reach certain conduct. The government waived the procedural default defense that Swisher had failed to raise his claims at trial or on direct appeal