Alfred Copeland v. Charles Ryan ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED COPELAND, No. 16-15849
AKA Charles Alfred Copeland
Petitioner-Appellee, D.C. No.
2:13-cv-02278-
v. PGR
CHARLES L. RYAN; ATTORNEY
GENERAL OF THE STATE OF OPINION
ARIZONA,
Respondents-Appellants.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted February 15, 2017
San Francisco, California
Filed March 28, 2017
Before: Marsha S. Berzon and Richard R. Clifton, Circuit
Judges, and Marvin J. Garbis,* District Judge.
Opinion by Judge Clifton;
Concurrence by Judge Berzon
*
The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
2 COPELAND V. RYAN
SUMMARY**
Habeas Corpus
The panel reversed the district court’s orders requiring an
Arizona state corrections official to reimburse a petitioner
for deposition expenses incurred in his pending habeas
proceeding under 28 U.S.C. § 2254.
The panel had interlocutory jurisdiction under the
collateral order doctrine, and held that a district court cannot
order a state to reimburse an indigent habeas petitioner for
deposition expenses in a § 2254 habeas proceeding when, as
here, the state did not request the deposition.
The panel remanded for further proceedings to determine
whether the petitioner may obtain reimbursement from the
federal government under the Criminal Justice Act.
Concurring in full, Judge Berzon noted that the Supreme
Court has significantly limited the applicability of the
collateral order doctrine in recent years, but that this court’s
precedents are not clearly irreconcilable with Supreme Court
law.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COPELAND V. RYAN 3
COUNSEL
Kristina Reeves (argued), Assistant Attorney General; Lacey
Stover Gard, Chief Counsel; John R. Lopez, IV, Solicitor
General; Mark Brnovich, Attorney General; Capital
Litigation Section, Office of the Attorney General, Phoenix,
Arizona; for Respondents-Appellants.
Emma Isakson (argued) and Lee Stein, Mitchell Stein Carey
PC, Phoenix, Arizona, for Petitioner-Appellee.
OPINION
CLIFTON, Circuit Judge:
Respondent Charles L. Ryan, as Director of the Arizona
Department of Corrections, appeals the district court’s
interlocutory orders requiring him to reimburse Petitioner
Alfred Copeland for deposition expenses incurred in
Copeland’s pending habeas proceeding under 28 U.S.C.
§ 2254. We have interlocutory jurisdiction under the
collateral order doctrine. We conclude that a district court
cannot order a state to reimburse an indigent habeas petitioner
for deposition expenses in a § 2254 habeas proceeding when,
as here, the state did not request the deposition. We reverse
the relevant orders and remand for further proceedings to
determine whether Copeland may obtain reimbursement from
the federal government under the Criminal Justice Act (CJA),
18 U.S.C. § 3006A.
4 COPELAND V. RYAN
I. Background
Following a jury trial in an Arizona state court, Copeland
was convicted in February 2002 on ten different state
criminal charges. The state court sentenced Copeland to a
total of 118 years’ imprisonment.
Eleven years later, in November 2013, Copeland filed in
federal court a pro se petition for habeas corpus under
28 U.S.C. § 2254 challenging his state convictions. To
overcome § 2254’s one-year statute of limitations, Copeland
alleged “actual innocence” on several counts of the
underlying indictment.1 The district court held that Copeland
had failed to establish actual innocence on all but two of the
counts of the indictment, and ordered an evidentiary hearing
on the remaining two counts. In light of the evidentiary
hearing and Copeland’s indigent status, the district court
ordered the appointment of counsel for Copeland under the
CJA, 18 U.S.C. § 3006A(a)(1)(2)(B), and Rule 8(c) of the
Rules Governing Section 2254 Cases.
Prior to the evidentiary hearing, the parties contacted two
of Copeland’s alleged victims, who had been identified as
potential fact witnesses. Both victims indicated that they no
longer lived in Arizona and were unwilling to travel to
Arizona to participate in the hearing. At the suggestion of
Copeland’s appointed counsel, the district court excused the
1
The Antiterrorism and Effective Death Penalty Act of 1996 imposes
a one-year statute of limitations on § 2254 habeas petitions. 28 U.S.C.
§ 2244(d). As an exception to this general rule, courts can consider
untimely federal habeas petitions if the petitioner shows “actual
innocence” on the challenged convictions. Schlup v. Delo, 513 U.S. 298,
318–23 (1995).
COPELAND V. RYAN 5
victims from appearing in person at the evidentiary hearing,
and instead subpoenaed them to testify via video depositions
to be taken near their respective homes outside Arizona. The
district court ordered both parties’ counsel to attend the
depositions.
After the depositions were scheduled, Copeland’s
appointed counsel filed two ex parte motions requesting that
the State reimburse Copeland for certain expenses incurred in
connection with the out-of-state depositions.2 The district
court granted both applications under Federal Rule of
Criminal Procedure 15(d), and ordered the State to reimburse
Copeland for (1) “the expenses incurred in the taking of video
depositions of [both witnesses]”; (2) “the reasonable travel
and subsistence expenses incident to the attendance of
[Copeland’s] counsel at the depositions,” including airfare,
lodging, rental cars, and meals; and (3) “the costs of
attendance of [both witnesses] at the depositions.”
After the district court summarily denied the State’s
motion for reconsideration of the reimbursement orders, the
State timely filed this interlocutory appeal.
2
Specifically, Copeland sought reimbursement against Respondent
Charles L. Ryan in his official capacity as the Director of the Arizona
Department of Corrections. See Rule 2(a), Rules Governing Section 2254
Cases (requiring petitioner in state custody to “name as respondent the
state officer who has custody”). For simplicity, we refer to Ryan as the
“State.” See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) (“[A] suit against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the official’s office.
As such, it is no different from a suit against the State itself.” (citation
omitted)).
6 COPELAND V. RYAN
II. Jurisdiction
Under the final judgment rule, appellate jurisdiction is
customarily limited to “final decisions” of the district courts.
28 U.S.C. § 1291. Copeland’s habeas petition is still pending
before the district court, so there is no final judgment in his
case yet. The State contends that we nevertheless have
jurisdiction in this instance under the collateral order
doctrine. We agree that there is collateral order jurisdiction
here.3
The collateral order doctrine provides a narrow exception
to the final judgment rule. Under the collateral order
doctrine, an appellate court may exercise jurisdiction over an
interlocutory ruling when the following three conditions are
met: (1) the ruling constitutes a final ruling on the relevant
issue; (2) the ruling resolves “important questions separate
from the merits”; and (3) the ruling is “effectively
unreviewable on appeal from the final judgment in the
underlying action.” Swint v. Chambers Cty. Comm’n,
514 U.S. 35, 42 (1995). Regarding the third condition, “the
decisive consideration is whether delaying review until the
entry of final judgment ‘would imperil a substantial public
interest’ or ‘some particular value of a high order.’” Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting
Will v. Hallock, 546 U.S. 345, 352–53 (2006)). “In making
this determination, we do not engage in an ‘individualized
jurisdictional inquiry.’” Id. (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 473 (1978)). Rather, we must focus
on “the entire category to which a claim belongs,” and
3
Because we have jurisdiction under the collateral order doctrine, we
need not consider the State’s alternative request that we issue a writ of
mandamus. See Jackson v. Vasquez, 1 F.3d 885, 888 n.1 (9th Cir. 1993).
COPELAND V. RYAN 7
determine whether “the class of claims, taken as a whole, can
be adequately vindicated by other means.” Id. (internal
quotation marks omitted).
All three conditions are met here. As we have previously
held, this court has collateral order jurisdiction to review
interlocutory orders requiring a government litigant to pay for
litigation expenses incurred by the opposing party. For
example, in United States v. Baker, 603 F.2d 759, 761–62
(9th Cir. 1979), we exercised jurisdiction under the collateral
order doctrine to review a district court order requiring the
federal government to pay, under Federal Rule of Criminal
Procedure 15, the defendant’s attorney’s fees for expenses
incurred in connection with depositions held outside the
United States. Similarly, in Wiggins v. Alameda County,
717 F.2d 466, 467–68 (9th Cir. 1983), we exercised
jurisdiction to review a district court’s order requiring state
prison officials to pay expenses associated with producing
and guarding a state prisoner during the duration of his
federal civil rights trial. In exercising jurisdiction under the
collateral order doctrine in Wiggins, we explained that
collateral order review was appropriate because the order
“resolved finally the State’s efforts to avoid the costs
associated with securing [the plaintiff’s] presence at the trial
of his civil rights action,” and that “[s]uch an allocation of
costs to the State was completely collateral to the issues
raised in the underlying civil rights suit.” Id. at 468.4
4
Our approach is consistent with that of other circuits. See United
States v. Horn, 29 F.3d 754, 768–69 (1st Cir. 1994) (exercising
jurisdiction to review a district court order requiring the government to
pay attorney’s fees as a sanction for discovery misconduct); United States
v. Rogalsky, 575 F.2d 457, 459 (3d Cir. 1978) (exercising jurisdiction to
review a district court order requiring the government to pay under the
CJA expenses incurred in connection with the psychiatric examination of
8 COPELAND V. RYAN
There is no reason to deviate from these authorities here.
As in Baker and Wiggins, the State challenges only the
district court’s orders requiring the State to reimburse
Copeland for his deposition expenses. As required for
collateral order review, the district court’s reimbursement
orders constituted the final ruling on Copeland’s right to seek
reimbursement from the State, the orders were separate from
the merits of Copeland’s habeas petition, and the orders
would be effectively unreviewable on appeal from a final
judgment on Copeland’s habeas petition. See Swint, 514 U.S.
at 42.
Further, when viewing the State’s claim as belonging to
a “class of claims, taken as a whole,” it is clear that this
category of claims cannot be “adequately vindicated by other
means.” Mohawk Industries, 558 U.S. at 107. In this appeal,
the State challenges orders by the district court requiring the
expenditure of public funds to reimburse an indigent habeas
petitioner for certain litigation expenses. If review of the
reimbursement orders were delayed until after final judgment,
the State would be unable to collect from the petitioner the
amounts it already paid out, even if the orders were reversed
on appeal. The premise of the orders was that Copeland is
indigent and does not currently have the money to make the
payments. He is a prisoner, so it cannot be assumed that he
would in the meantime come into funds sufficient to
reimburse the State for the expenses. Thus, as a practical
matter, delaying review until after final judgment would leave
the State with essentially no recourse to vindicate its
“substantial public interest” in protecting the state fisc against
the unauthorized expenditure of public funds. Will, 546 U.S.
an indigent defendant).
COPELAND V. RYAN 9
at 353. Collateral order jurisdiction is therefore appropriate
here.
III. Discussion
We review de novo the district court’s determination that
Copeland is entitled to reimbursement from the State under
Federal Rule of Criminal Procedure 15(d). See United States
v. Fort, 472 F.3d 1106, 1109 (9th Cir. 2007) (“We review de
novo a district court’s interpretation of the Federal Rules of
Criminal Procedure.” (citing United States v. Navarro Viayra,
365 F.3d 790, 793 (9th Cir. 2004)).
On appeal, the State challenges the district court’s
reimbursement orders on two independent grounds: (1) the
reimbursement orders were unlawful because there are no
statutes or rules authorizing the district court to order the
State to reimburse Copeland for the deposition expenses, and
(2) the orders abrogated state sovereignty in violation of the
Eleventh Amendment of the U.S. Constitution. We agree
with the State on the first ground. The district court was not
authorized to order the State to pay for expenses of
depositions in a § 2254 habeas proceeding that were not
requested by the State. Applying the principle of
constitutional avoidance, we decline to consider whether the
reimbursement orders violated the Eleventh Amendment.
Overstreet v. United Bhd. of Carpenters & Joiners of Am.,
Loc. Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005).
A. The district court cannot order reimbursement by the
State.
As a general rule, federal courts do not have authority to
order one party in civil litigation to pay the expenses of the
10 COPELAND V. RYAN
other party. See Carbonell v. INS, 429 F.3d 894, 897–98 (9th
Cir. 2005) (“[L]itigants ordinarily are required to bear the
expenses of their litigation unless a statute or private
agreement provides otherwise.”); see also Doe v. United
States, 112 F.R.D. 183, 184 (S.D.N.Y. 1986) (“Litigants
generally bear their own deposition expenses initially. The
exceptions to this rule are few.”). Copeland argues that the
district court was authorized to issue the reimbursement
orders under both Federal Rule of Criminal Procedure 15(d)
and the Rule 6(c) of the Rules Governing Section 2254 Cases.
We disagree.
1. Federal Rule of Criminal Procedure 15(d)
Federal Rule of Criminal Procedure 15 concerns
depositions in federal criminal proceedings. Rule 15(d),
entitled “Expenses,” provides:
If the deposition was requested by the
government, the court may – or if the
defendant is unable to bear the deposition
expenses, the court must – order the
government to pay:
(1) any reasonable travel and
subsistence expenses of the defendant
and the defendant’s attorney to attend
the deposition; and
(2) the costs of the deposition
transcript.
Copeland argues that because the Federal Rules of Criminal
Procedure apply to § 2254 habeas proceedings, he may
COPELAND V. RYAN 11
recover his deposition expenses from the State under Rule
15(d). That argument fails on multiple grounds.
To begin with, the Federal Rules of Criminal Procedure
do not apply to habeas proceedings brought by state prisoners
under 28 U.S.C. § 2254. Although habeas actions are filed by
persons previously convicted of criminal offenses to
challenge those convictions (or the effects of the convictions),
habeas corpus proceedings are “civil in nature,” not
“criminal.” Mayle v. Felix, 545 U.S. 644, 654 n.4 (2005).
Federal habeas actions brought by state prisoners are brought
under 28 U.S.C. § 2254 and are governed by a discrete set of
rules, namely the Rules Governing Section 2254 Cases in the
United States District Courts. Id. at 654. A different statute,
28 U.S.C. § 2255, pertains to habeas proceedings brought by
persons convicted of federal crimes, and those cases are
governed by a different set of rules, the Rules Governing
Section 2255 Cases in the United States District Courts.
When a petitioner challenges a federal conviction under
§ 2255, discovery may be governed by both the Federal Rules
of Civil Procedure and the Federal Rules of Criminal
Procedure. See Rule 6(a), Rules Governing Section 2255
Cases (“A judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Criminal
Procedure or Civil Procedure, or in accordance with the
practices and principles of law.”); see also Rule 12, Rules
Governing Section 2255 Cases (“The Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure, to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”).
12 COPELAND V. RYAN
By contrast, when the petitioner challenges a state
conviction under § 2254, discovery is instead governed by the
Federal Rules of Civil Procedure. See Rule 6(a), Rules
Governing Section 2254 Cases (“A judge may, for good
cause, authorize a party to conduct discovery under the
Federal Rules of Civil Procedure . . . .”); Rule 6(a), Rules
Governing Section 2254 Cases, advisory committee’s note to
1976 adoption (“This rule prescribes the procedures
governing discovery in habeas corpus cases. Subdivision (a)
provides that any party may utilize the processes of discovery
available under the Federal Rules of Civil Procedure . . . if,
and to the extent that, the judge allows.”); see also Rule 12,
Rules Governing Section 2254 Cases (“The Federal Rules of
Civil Procedure, to the extent that they are not inconsistent
with any statutory provisions or these rules, may be applied
to a proceeding under these rules.”).
Copeland is a state prisoner, so his habeas action was
brought under § 2254. Under the plain language of the Rules
Governing Section 2254 Cases, only the Federal Rules of
Civil Procedure apply to § 2254 habeas proceedings. The
Federal Rules of Criminal Procedure do not apply to § 2254
habeas proceedings.
Copeland raises several arguments in response, all of
which are based on the same premise: because there are no
authorities expressly providing that the Federal Rules of
Criminal Procedure do not apply to § 2254 habeas
proceedings, the Federal Rules of Criminal Procedure apply
here. This argument conflicts with a basic principle of
statutory interpretation. Under the maxim of expressio unius
est exclusio alterius, there is a presumption “that when a
statute designates certain persons, things, or manners of
operation, all omissions should be understood as exclusions.”
COPELAND V. RYAN 13
Boudette v. Barnette, 923 F.2d 754, 756–57 (9th Cir. 1991);
see Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 107-111 (2012) (identifying this
as the “Negative-Implication Canon”). Here, Rule 6(a) and
Rule 12 of the Rules Governing Section 2254 Cases provide
only that the Federal Rules of Civil Procedure govern
discovery in § 2254 habeas proceedings. Applying this
principle of statutory interpretation, we must presume that the
Federal Rules of Criminal Procedure do not apply to § 2254
habeas proceedings.
This presumption is confirmed by the fact, as detailed
above, that Rule 6(a) and Rule 12 of the Rules Governing
Section 2255 Cases expressly provide that both the Federal
Rules of Civil Procedure and the Federal Rules of Criminal
Procedure apply in § 2255 habeas proceedings. The
difference between the two sets of rules cannot be shrugged
off as an accident or oversight. Copeland has provided no
reason why we should not apply this presumption that the
Federal Rules of Criminal Procedure do not apply to § 2254
habeas proceedings, and we see none. See United States v.
Bert, 292 F.3d 649, 652 n.12 (9th Cir. 2002) (declining to
apply presumption when “the mechanical application of
expressio unius is contrary to both logic and legislative
purpose”).
That the Federal Rules of Criminal Procedure do not
apply to this case is fatal to Copeland’s argument that they
authorize the district court’s orders. Copeland does not argue
14 COPELAND V. RYAN
that there is anything in the Federal Rules of Civil Procedure
that supports the district court’s orders here. 5
It would, moreover, take a strained interpretation of
Federal Rule of Criminal Procedure 15(d) to support the order
in this case, even if that rule did apply. Rule 15(d) refers to
“the government,” but within the Federal Rules of Criminal
Procedure that term necessarily refers to the federal
government, as those rules apply only to criminal
prosecutions brought by the federal government. See Fed. R.
Crim. P. 1(a)(1). Copeland has provided no reason why we
should conclude that these rules were ever intended to apply
to a state in circumstances like the one here, and we can see
none.
Rule 15(d) is also by its express terms applicable when
“the deposition was requested by the government.” That was
not the case here. As we discuss in connection with Rule 6(c)
of the Rules Governing Section 2254 Cases, immediately
below, that makes a difference.
2. Rule 6(c) of the Rules Governing Section 2254 Cases
Copeland argues that the district court was also authorized
to issue the reimbursement orders under Rule 6(c) of the
Rules Governing Section 2254 Cases. The language of the
rule says otherwise.
5
The only provision in the Federal Rules of Civil Procedure expressly
authorizing the recovery of deposition expenses is Rule 30(g), which
allows a party to recover certain deposition expenses when the party
noticing the deposition either failed to attend the deposition or failed to
subpoena a nonparty deponent who in turn failed to attend the deposition.
That authorization does not apply here.
COPELAND V. RYAN 15
Rule 6(c), entitled “Deposition Expenses,” provides as
follows:
If the respondent is granted leave to take a
deposition, the judge may require the
respondent to pay the travel expenses,
subsistence expenses, and fees of the
petitioner’s attorney to attend the deposition.
The “petitioner” in a habeas case under § 2254 is the prisoner
challenging his conviction or confinement, in this case,
Copeland. The “respondent” is the state or its agent, such as
the warden of the prison where petitioner is held. Rule 2(a),
Rules Governing Section 2254 Cases. Here, the respondents
are the Director of the Arizona Department of Corrections
and the Arizona Attorney General.
The rule says in so many words that the State (or its
agent) may be required to pay deposition expenses “[i]f the
respondent [i.e., the State] is granted leave to take a
deposition.” In that sense, Rule 6(c) of the Rules Governing
Section 2254 Cases is similar to Federal Rule of Criminal
Procedure 15(d), discussed above, in that both authorize the
court to order the government to pay deposition expenses
when the government requests the deposition.
But the State did not request the depositions at issue here.
After the two witnesses declined to travel to Arizona to
testify, it was Copeland’s counsel who suggested that video
depositions be taken instead. The district court’s orders recite
that they are in response to Copeland’s ex parte motion
seeking permission to travel outside Arizona for depositions.
The district court made no finding that the State sought leave
to take the depositions, and Copeland does not contend that
16 COPELAND V. RYAN
it did. It appears that the testimony of these witnesses was
sought by Copeland to support his claim of actual innocence
on certain charges, and the burden of establishing innocence
in this proceeding lies with Copeland.
Rule 6(c) authorizes the court to require the State to pay
the expenses “if” the deposition is requested by the State.
Rule 6(c), Rules Governing Section 2254 Cases. The
interpretation urged by Copeland would eliminate that
condition. If the rule were intended to permit the court to
require the State to pay for the deposition regardless of which
party sought the deposition, then the first ten words would not
have been included in the rule. We are not at liberty to edit
them out. The maxim expressio unius est exclusio alterius,
discussed above, at 12–13, applies here as well. The
omission of authority to order the State to pay deposition
expenses when the deposition was requested by a party other
than the State should be understood to exclude that authority.
B. The district court may consider whether Copeland’s
deposition expenses are reimbursable by the federal
government.
Although we disagree with Copeland that his deposition
expenses were reimbursable by the State, his deposition
expenses nevertheless appear reimbursable by the federal
government under the CJA. The district court ordered the
appointment of habeas counsel under the CJA to represent
Copeland in connection with the evidentiary hearing on his
“actual innocence” claims. District courts can order the
federal government to reimburse an indigent habeas
petitioner’s deposition expenses when the petitioner qualifies
for the appointment of habeas counsel under the CJA. See
18 U.S.C. § 3006A(a)(2)(B) (providing for the appointment
COPELAND V. RYAN 17
of counsel “for any financially eligible person who . . . is
seeking relief under section . . . 2254 . . . of title 28”); id.
§§ 3006A(d)(1), (4) (“Attorneys may be reimbursed for
expenses reasonably incurred” as determined by “[t]he United
States magistrate or the court . . . .”); Guidelines for
Administering the Criminal Justice Act §§ 320.40.20(a), (d)
(providing for reimbursement by the U.S. Department of
Justice of “[e]xpenses incurred in the taking of fact witness
depositions” and “reasonable travel and subsistence expenses
incident to attendance of counsel and the defendant at the
deposition”). On remand, the district court should consider
whether Copeland qualifies for reimbursement from the
federal government under the CJA.
IV. Conclusion
There are no statutes or rules authorizing the district court
to order the State to reimburse Copeland, as an indigent
habeas petitioner, for deposition expenses in his § 2254
habeas proceeding when, as here, the State did not request the
depositions. Accordingly, we reverse the district court’s
orders and remand for further proceedings.
REVERSED AND REMANDED.
BERZON, Circuit Judge, concurring:
I join Judge Clifton’s opinion. I write separately to note
that although our conclusion regarding the collateral order
doctrine is correct under our precedents, see Wiggins v.
Alameda County, 717 F.2d 466, 467–68 (9th Cir. 1983) and
United States v. Baker, 603 F.2d 759, 761–62 (9th Cir. 1979),
18 COPELAND V. RYAN
the Supreme Court has significantly limited the applicability
of the collateral order doctrine in recent years. For example,
the Court has held that an order of sanctions under Federal
Rule of Civil Procedure 37(a) is not immediately appealable.
See Cunningham v. Hamilton Cty., 527 U.S. 198, 210 (1999).
The Court has also so held with respect to a disclosure order
adverse to the attorney-client privilege. See Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100, 112–13 (2009).
I am not sanguine that the collateral order doctrine still
permits interlocutory review of a district court’s award of
discovery costs, given the direction the Supreme Court has
taken. But there is no direct conflict between any Supreme
Court case and our precedents, Wiggins and Baker, such that
those cases are “clearly irreconcilable” with Supreme Court
law. A three-judge panel would therefore not be justified in
departing from those precedents. See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003).
With these observations, I concur in the opinion in full.