A couple of recent en banc actions in the Ninth Circuit are worth noting. Today the court denied rehearing en banc in the case of United States v. Black, 05-10640, a decision issued in October and amended yesterday. The case involves the question of when police responding to a domestic violence call can enter an apartment without a warrant due to exigent circumstances. The question produced some unusual alignments. Judges Betty Fletcher and Marsha Berzon split on the panel. The dissenters from denial of rehearing en banc were Judges Kozinski, Reinhardt, Kleinfeld, and Berzon.
On Friday, the court granted rehearing en banc to review a habeas opinion by Judge Reinhardt, with Judge Bybee dissenting, in Smith v. Baldwin, No. 04-35253. Judges Reinhardt and Hug find that Smith qualifies for the "actual innocence" exception to the procedural default rule by presuming as true facts they say the prosecution wrongfully prevented him from establishing. As noted previously, there is an encouraging trend in the Ninth to grant rehearing en banc in cases of panel decisions favoring the defendant or habeas petitioner, in contrast to the earlier unwritten rule that en banc was a single-edged sword, exclusively for overturning decisions favoring the state.