593 F.3d 881 (9th Cir. 2010), 07-10567, United States v. Payton

Docket Nº:07-10567.
Citation:593 F.3d 881
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Clay PAYTON, Defendant-Appellant.
Attorney:Sherrill A. Carvalho, Assistant U.S., Brian William Enos, Esquire, Assistant U.S., Office of the U.S. Attorney, Fresno, CA, for Plaintiff-Appellee. Eric V. Kersten, Assistant Federal Public Defender, Federal Public Defender's Office, Fresno, CA, for Defendant-Appellant.
Judge Panel:Before WILLIAM C. CANBY, JR. and KIM McLANE WARDLAW, Circuit Judges, and RICHARD MILLS,[*] District Judge.
Case Date:January 15, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 881

593 F.3d 881 (9th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Clay PAYTON, Defendant-Appellant.

No. 07-10567.

United States Court of Appeals, Ninth Circuit

January 15, 2010

Page 882

Sherrill A. Carvalho, Assistant U.S., Brian William Enos, Esquire, Assistant U.S., Office of the U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.

Eric V. Kersten, Assistant Federal Public Defender, Federal Public Defender's Office, Fresno, CA, for Defendant-Appellant.

Before WILLIAM C. CANBY, JR. and KIM McLANE WARDLAW, Circuit Judges, and RICHARD MILLS,[*] District Judge.

ORDER

This order addresses procedural issues that arose after the filing of our opinion in this matter on July 21, 2009. See United States v. Payton, 573 F.3d 859 (9th Cir.2009). The issues primarily concern post-opinion mootness and the question whether our opinion should be vacated and the appeal dismissed as moot. We deny vacatur and dismissal.

Our opinion held that a search of Payton's computer was unlawful, and we accordingly reversed the denial of Payton's motion to suppress the fruits of that search. We remanded with instructions to permit Payton to withdraw his conditional guilty plea. See id. at 864-65.

After our opinion was filed, the government asked for and received an extension of time to September 3, 2009, to file a petition for rehearing. The government subsequently decided not to file a petition, and the September 3 deadline passed. On

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September 8, our Clerk's office issued our mandate, two days early. See Fed. R.App. P. 41(b). The mandate was transmitted to the district court and still appears in its docket. That same day, a judge of our court issued a stop-clock order to our Clerk, which has the effect under our General Orders of extending by 14 days the time to call for rehearing en banc. G.O. 5.4(e). The stop-clock order was timely, having been issued within seven days of the expiration of time for filing petitions for rehearing. G.O. 5.4(d), (e). Recognizing that the mandate had been issued prematurely, our Clerk's office deleted as erroneous the entry in our docket showing that the mandate had issued. The record does not reflect that this correction was sent to or reached the district court.

On September 16, the judge who had stopped the clock called sua sponte for a vote to rehear the case en banc, and requested briefing by the parties as to rehearing en banc. That briefing was ordered on September 21 and was completed by November 4.

Meanwhile, however, on September 14, Payton had moved in district court to withdraw his conditional plea of guilty, pursuant to the mandate from this court that was entered in the district court docket. Relying on that mandate, the government did not oppose the motion and it was granted. The government then moved to dismiss the case and the district court granted the motion.

The government recited these events in its supplemental en banc brief, indicating that the case was finished in the district court. The government further stated that, although it disagreed with our opinion, it did not seek en banc review because, among other reasons, it believed that the decision would " have minimal impact" on law enforcement.

At this point, the judge seeking en banc review noted, correctly, that the case had become moot, and asked our panel to vacate its decision and dismiss the appeal as moot. The panel declined to vacate and dismiss for the following reasons.

First, the mootness did not arise while the decision on appeal was pending, or even while a petition for rehearing was pending. It did not arise because of some external event. It arose...

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