*2 FISHER, Circuit Judge: Jeffrey When Dean pled guilty court, in federal district he was under the prescribed influence of a painkill- *3 er injuries due to leg severe from a motor- cycle accident consequently, claims, did fully understand the nature and consequences of his plea agreement. Howard appeals the district court’s denial § his 28 U.S.C. 2255 habeas petition, arguing that his performance constitutionally ineffective in permitting him, while incompetent, acquiesce in a plea agreement he had seen the first just time before he agreed to plead guilty. Because there is no dispute that Howard powerful drugs could have dulled his mental faculties and because he has alleged specific, credible in support facts of his ineffective assis- claim, tance of counsel we conclude that the district court should permitted Howard to develop these claims fully more in an evidentiary hearing. juris- We have 2253, diction § under 28 U.S.C. and we reverse and remand. Background
Factual and Procedural In October County Pierce Sheriffs deputies discovered a clandestine metham- phetamine-manufacturing laboratory at a Koch, Neilsen, David B. Broman & house Howard shared with his co-defen- Koch, PLLC, Seattle, WA, for the defen- dant Higgs Michael in Puyallup, Washing- dant-appellant. ton. Officers found inside a crawl Brunner, Helen J. Assistant United space house, under the along with a cooler Seattle, Attorney, WA, for the containing methamphetamine and cocaine. plaintiff-appellee. charged
Howard was on December with five counts a superseding (1) indictment: conspiring to manufacture methamphetamine in violation 21of U.S.C. (2) §§ 841(a)(1), (b)(1)(A), 846; establish- ing a drug manufacturing in vio- operation (3) lation 856(a)(1), (b); § of 21 U.S.C. NELSON, Before: D.W. KLEINFELD manufacturing methamphetamine in viola- FISHER, Judges. Circuit 841(a)(1), (4) tion (b)(1)(A); § of 21 U.S.C. take? you doWhat intent to COURT: with chemical a listed possessing in viola- methamphetamine manufacture Percocet. HOWARD: (5) 841(c)(1); pos- § 21 U.S.C. tion of Doctor’s order? COURT: intent methamphetamine sessing Yes. HOWARD: of 21 U.S.C. in violation distribute stuff; tough isn’t pretty That’s COURT: (b)(1)(C). 841(a)(1), it? the district February On going I am pain HOWARD: suppress evi- motion to heard tough. through pretty gov- and two dence, during which getting why you That’s COURT: district testified.1 The witnesses ernment *4 that, any Percodan; than it? Other isn’t motion. court denied others? Feb- begin on was set trial Howard’s No, sir.2 HOWARD: attorney morning, Howard’s That ruary 8. further inquire court did The district bargain, which plea a him with presented ac- effects and drug or its then to have seen until claims not Howard 1999, 18, plea. On June Howard’s cepted guilty to plead he would and under which Howard to 292 sentenced court the district superseding 1, 2, 5 of 3 and counts Howard later imprisonment. months condi- expressly The was indictment. sup- motion to denial of his appealed the from right appeal tioned on Howard’s affirmed. See United press, and we mo- denial of Howard’s court’s the district 99-30233, Howard, 2000 728234 WL No. waiting in jury The suppress. tion to 2000) 22, (unpublished). May Cir. government’s case Howard declined 23, 2001, filed a pro Howard On March time, experienc- Howard was At the offer. raising several petition, § habeas se 2255 leg injury, of a ing pain as result present ineffective including surgical grounds, undergone several he had which 27, August On of counsel claim. prescribed assistance and was procedures evidentiary hear- 2001, sought Howard an killer. use pain narcotic of counsel colloquy ing the ineffective assistance during the drug surfaced court denied the The district hearing: claim. at the holding an eviden- without 2255 morning, this you sit here As COURT: a certificate of and denied tiary hearing affect- the influence you under May appealability beverage way by any alcoholic any ined drug kind? or narcotic timely notice thereafter filed Howard No. HOWARD: a certificate appeal. granted You of hesitated. COURT: kind appealability on ineffective assistance counsel for Well, appointed a narcotic counsel I am under HOWARD: my Howard. pain that’s for medication. drug, but drug as we refer to these about shall "Percocet/Perco- judicial notice of facts 1. We take infra, drugs con- hearing district the two suppression from the discussed dan.” As underlying case. ingredient, oxycodone, criminal court record in the same active tain the Wilson, 201; see United States v. Fed.R.Evid. morphine. opioid with attributes similar an 118, (stating that in that Percocet two medications differ judicial rec- may notice of a court take acetaminophen, whereas Perco- also contains case). ords in another DESK aspirin. PHYSICIAN'S contains dan (2004). 1245-46 REFERENCE drug Per- identified the as 2. Because Howard Percodan, cocet, as identified it and the court Discussion Howard must therefore have permitting Howard to plead
I.
guilty was outside the wide range
pro-
fessionally competent assistance and that
evidentiary
seeks
there is a reasonable probability that but
hearing on his claim that his counsel was
errors,
for counsel’s
the result
pro-
in permitting
ineffective
him to plead
ceeding would
been
different.
guilty while Howard was under
the ad Strickland v. Washington, 668,
U.S.
PercoceVPercodan,
verse effect of
a nar
690, 694,
104 S.Ct.
demonstrate to competence issue of v. the direct Sandgathe involved See guilty. plead to tent 379(9th than indirect guilty rather plead Maass, F.3d counsel, they of defen- assistance denial of ineffective court’s (affirming district must what Howard of counsel to are instructive as assistance ineffective dant’s incompe that he was had offered establish to allege defendant claim because that his demonstrating to incompetence tent, predicate asserted evidence taking psycho- a result was ineffective. guilty as counsel plead drugs). tropic alleged that the petitioner Lopez, the In a pre- him given had authorities prison as the is defined
Competence
consisting
phe-
chemical cocktail
scribed
proceedings
ability
understand
day
on the
nobarbitol,
and musline
dilantin
defense.
preparing
counsel
to assist
claimed
at 999. He
plea.
States,
362 U.S.
Dusky v. United
more
“docile and
consequently he was
(1960)
788,
dum in of poten- Percocet/Percodan, performance for the required he ties ingestion of his PHYSICIAN’S tasks. tially so hazardous clouding,” was “mental from suffered (2004).7 1245-46 count, REFERENCE was unable to DESK befuddled re- adverse frequently of sensi- observed “almost devoid The most “incoherent” and dizziness, light-headedness, “in full speech, was not actions include meaning” in ble faculties,” other ad- sedation, vomiting; was nausea and his mental possession dys- and fully euphoria under- not include and “did verse reactions “narcoticized” argua- of his at least consequences 1246. It is nature and Id. at phoria. stand true, if leading to some of allegations, These dose that a normal agreement.”6 ble not com- seriously Howard was inter- establish reactions would have would these conclusory or in- make they ability are not Howard’s petent with fered they are suffi- Thus alternatives herently incredible. among choice reasoned Miles, a claim. to state 108 F.3d at cient him. presented 1225. The at 1112; Dziurgot, 897 F.2d turn to whether next acknowledging the although district conclusively disprove and record court— files drug nature of “pretty tough” The dis- incompetency. —did Howard’s dosage inquire about Percocet/Per- demon- that the record court found trict it, taken whether codan, when Howard had find- competence. This Howard’s strated had mixed the Howard the court’s Percocet/Percodan upon based ing presumably and, impor- most drugs hearing with non-narcotic of the record review competence. during tantly, effects on Howard its Howard’s and its observations information, cannot con- conclu- we record does not such colloquy. The Absent compe- Howard was sively clusively determine whether establish tent, adversely affected however. Percocet/Percodan plead guilty. competency to Howard’s alleg
First, then said Howard hearing behavior at had taken es now that he Percocet/Perco- —-to points as conclu- government which made adverse dan. The district competen- sively demonstrating Howard’s taken that he had not finding suggesting question. The cy' not resolve the narcotic painkiller. some amount of the —does transcript hearing reveals contain the and Percodan Both Percocet as he to be appearing times as befuddled oxycodone, an ingredient opioid active others, been; at to have now which claims morphine attributes similar under the Howard, fact pro in the dis- contested proceeded se who *8 plea at the court, support of influence in Percocet/Percodan trict not file affidavits did merely hearing. His unsworn memoranda subsequent a re- this initial memorandum augment allegations. memorandum, those government has ply the sufficiency challenged of Howard's not the do allegations ground. judicial We these on this therefore medical take notice We Percodan, alle- regarding Howard's unsworn which address whether Percocet and facts gations determin- properly considered in in memorandum on are Howard has raised his hearing. Orange, evidentiary County We 351 ing right appeal. Lolli v. to an Cir.2003) ("Well-known (9th § 2255 419 do note that F.3d Howard's by types penalty perjuiy of matters of properly “signed facts are the under medical taken.") 2(b) (quot- may judicial notice petitioner.” of the Rules which the See Rule Indep. Dealers Ass’n Cal. Proceedings. ing Auto. His Barnes Governing 2255 Section Plan, 64 F.3d incred- Health & allegations neither bald sworn nor Welfare Benefit Cir.1995)). (9th 2 supported by un- 1395 n. the ible assertions and are
881
possession
seems to have been
full
of his
dum in support of
he further
say
faculties.
thus cannot
on
the basis
that counsel
until
“waited
the ‘elev-
hearing
that
transcript
Howard was
enth
negotiate
hour’ to
plea agreement
competent to
a guilty plea.
present
enter
Howard,
Nor is
its terms to”
without
judge’s
trial
petition-
recollection of a
informing
plea
Howard of the
agreement
performance
er’s
plea hearing
at a
“until immediately
conclu-
prior to the hour that
sive in
whether the
determining
petitioner
jury trial was scheduled to commence.”
competent
plea.
to enter a
See Sand- Howard also testified under oath at the
States,
1, 20,
ers v. United
373
plea
U.S.
hearing that
he had
gone
(1963) (“That
1068, 10
through
S.Ct.
L.Ed.2d 148
plea
agreement “a little bit”
judge may
thought
[petition-
have
that
and could not answer the
question
court’s
acted with intelligence
er]
as to
understand-
“what’s in them.”
responding
judge’s
to the
inquiries
The late timing
proffer
show,’
cannot ‘conclusively
as the statute
not,
the plea
itself,
does
support an
requires,
is no
there
merit
in his
ineffective assistance of counsel claim.
claim.”);
present
see
Lopez,
also
439 F.2d When combined with Howard’s uncontro-
(holding
at 1000
personal
that court’s
ob- verted drug use and allegations of incom
servation of
petitioner
at
hear-
petence, however, the claim has sufficient
ing,
evidence,
combined with other
did
merit
to justify an evidentiary hearing.
relief).
conclusively foreclose
When counsel has
question
reason to
government’s
argument
client’s competence to plead guilty, failure
district court had the opportunity to ob-
to investigate further may constitute inef
serve
suppression
Howard at
hearing
fective assistance of counsel.
Rohan v.
Cf.
days
held four
before the
discussion
Woodford,
334 F.3d
fails for the same reason. That
judge
(“Whether trial counsel were constitution
may
thought
have
that Howard acted with ally ineffective
failing
pursue
[for
intelligence and understanding at
competency hearing] may depend on their
hearing is insufficient to show conclusively
[petitioner].
interactions with
The more
that Howard’s
later
obvious his incompetence
time,
at the
plea hearing
Sanders,
merit.
lacks
373 more likely
they
deficient
were
20;
Lopez,
U.S.
The record reveals that Howard was 2003) (“Trial duty counsel has a to investi under powerful the influence of a gate a defendant’s mental state if there is drug that could affected cognition; have evidence suggest that the defendant is only question whether it actually did. impaired.”). Howard’s statement that he That he could have been rendered incom- was under the strong influence nar petent, and specifically and credibly claims cotic trigger was sufficient to an inquiry so, been is sufficient to tip the into competence plead guilty unless scales in evidentiary favor of hearing possessed his counsel some other knowl aspect this of his claim. *9 edge that suggesting was compe Howard B. performance Counsel’s tent.
Howard in alleged his that his The district court found that the record counsel “improperly allowed to conclusively [Howard] established that Howard’s enter a plea while under the influence of a counsel appropriately “advocated on his narcotic drug.” In his initial memoran- behalf sentencing.” at To the extent this to consider ternatives, able being such as was that counsel say to means
finding im- he was not when agreement plea the medication Howard’s about knowledgeable dissent, But we do at 12144. paired. to competency Howard’s on its effect and alter- a better there know whether was agree- not plea the approve understand present- was plea agreement native. The does not The record ment, disagree. we set his trial was day on the to much ed Howard knew how counsel indicate whether his believed Howard’s If counsel or to start.8 had taken his client Percocet/Percodan might have he incompetent, client to be compe- to client he believed whether afternoon, or the a recess until is there asked Nor medication. despite the tent to ascertain attempt to morning, the next had reviewed Howard indication that any and, were if Howard competency plea agree- all terms accepted the permit the to incompetent, the Percocei/Perco- was not under he at a time when ment know that run its course. lat- dan This influence Percocet/Percodan. continuance, did not seek such counsel crucial in Miles ter circumstance sug- nothing in record (9th Cir.1997), but there Stainer, 108 F.3d In done so. could not have gest not inef- that counsel was we held where merely un- short, dissent’s assertion petitioner be- to ask the failing in fective develop- for the further the need derscores he was hearing whether plea fore evidentiary hear- in an the record his ment of to maintain required medication as whether questions such to answer peti- bring the issue or to competency effects aware atten- counsel was to the court’s competency tioner’s not, and, if on Howard There, record 1113. tion. 108 F.3d Percocet/Percodan into whether inquire failed to op- why counsel discussed Miles’ that “counsel showed plead guilty competent his client was at a time when with him tions his use of acknowledged after plead decided to Howard that he competent, at the the court questioned by drug of some when exchange for dismissal in guilty hearing. (emphasis plea him.” Id. against the counts added). ac- counsel had acted Because II. instruc- chent’s “reasoned
cording to her com- question Miles’ tions,” her failure prong, prejudice satisfy Strickland’s To to do unreasonable when was not petency for counsel’s allege must that but bargain, jeopardize so “would trial gone to errors, he would either have In the wishes.” Id. against her client’s bargain. See a better or received here, evidence any such record absence Baramdyka, 95 F.3d United files we conclude that Cir.1996). 846-47 How- conclusively foreclose record do the district reply brief pro se before performance ard’s court: of reason- objective standard fell below obvious; prejudice is resulting The ableness. a trial right waived [Howard] presented jury, to have evidence that our reliance dissent asserts beyond a rea- proven him and against there is misplaced Miles doubt, jury decide and to al- sonable had that Howard better evidence yet and the district begun had Although that “the selection the district court stated members, door,” likely referring to venire right district jury is outside case, States v. United jurors. court docket rather than Howard, 98-Cr-05442, suggests jury No.
883 which elements of the charged offense district court to determine after an eviden- that would expose and, him to a penalty tiary hearing. The record does not conclu degree. to what sively establish that there is no “reason able probability” that Given pro Howard’s se would pursu status when gone to that, § trial and petition his 2255 thus before the district coun court, errors, sel’s interpret we shall the result allegation this as proceeding a sufficient would statement have been different. Strickland, would not 690, 104 have entered 466 plea and U.S. at would have tak S.Ct. 2052.
en the case to trial if his counsel
not
had
permitted him to plead while incompetent.
III.
See United
v. Seesing,
234 F.3d
allegations
Howard’s
are sufficiently
(“Pro
complaints
se
and
specific to meet the low threshold for an
motions from prisoners are
be liberally
to
evidentiary hearing on his
claim ineffec-
construed.”).
specific
This
allegation, if
tive assistance of counsel.
record
The
be-
true, would
prejudice.
establish
See Bar
fore us is insufficient to show conclusively
amdyka,
the evidence against Howard was “over- dissenting:
whelming,”
that his
defense was to
I respectfully dissent.
suppress
evidence
that Howard re-
ceived a “substantial
by
benefit”
pleading Were
question
whether an evidentia-
doing
because
so reduced his sentencing
ry hearing should have been
held
deter-
range from 360 months to life to 292 to 365 mine whether Howard was denied due
months. As with
government’s
expla- process
of an
because
inadequate inquiry
nations for Howard’s
behavior at the
regarding his competence at the time of
hearing,
arguments
these
are plausible
plea,
might
I
well concur.
I share the
may
correct,
be factually
but that is for
majority’s
concern about the inadequacy of
above,
9. As noted
we do not
reach
deter
implicit
tion is at
most
pro
in his
se
mination of whether Howard’s claim must be
he1
plea,
seeks to vacate his
supported entirely by
allegations
sworn
be
stating
tantamount
that he would have
government
cause the
argue
did not
this
been
going
better off
to trial. That Howard
point.
government
Had the
waived
this
might have
refused
enter into the
however,
argument,
question
of whether
agreement
notion,
an
incredible
howev
Howard had sufficiently alleged prejudice
er.
by
Nor is it refuted
In the
record.
present
would
question.
the closest
any argument
absence of
government
provided specific
allegations
factual
under
disregard
that we
specific,
should
un-
oath
incompetency
and his
regard,
sworn claims
this
his statements in
performance.
contrast,
counsel's
By
he made
reply
justify
memorandum suffice to
specific,
no such
sworn factual assertions
evidentiary hearing.
Instead,
regard
prejudice.
such asser
*11
showing is his bur-
This
prejudice.
is
and
My problem
inquiry.
court’s
the district
to an evidentia-
den,
not entitled
and he is
lawyer.
blaming the
any showing,
of
absence
hearing in the
ry
tak-
was
that Howard
learned
judge
The
possibility.
speculative
a
merely because of
have
should
Percocet,
probably
he
liberally,
papers
his
construing
Even
whether
about
thoroughly
inquired more
deficiency
preju-
or
allege
not
either
does
doing.
was
he
what
understood
Howard
he was
says that
petition,
In
dice.
his
or bro-
pulled
had teeth
has
Anyone who
drug.
the narcotic
influence of
under the
pain-
has
treated
taken
ken bones
any time
was
that there
He does not claim
dull
they sometimes
knows
killers and
lawyer
presented
could have
that his
them, if
sharpen
also
They can
the wits.
him
enter
to him
had
agreement
plea
narcot-
excruciating that the
so
pain
is
influ-
he was not under
plea
when
something
on
the mind
focus
ics enable
for his old
medication
of the narcotic
ence
judge learned
pain.
The
other than
injury.
motorcycle
painkiller
on narcotic
that Howard
gets
one
than what
stronger
medication
lawyer was
with his
Howard’s problem
Howard
and extractions.
for root canals
not How-
sentencing prediction,
for fif-
hospitalized
repeatedly
had been
The
incompetence.
supposed
ard’s
resulting from
complications
years for
teen
law-
against
makes
his
accusation Howard
in a motor-
leg
his
fractures to
compound
improp-
that “Counsel
yer
in his
evidently
accident,
Percocet
and the
cycle
extent of his
erly
advised Petitioner
pain.
leg
for
That
plea
guilty.”
exposure under
us,
a chal-
would such
is not before
nor
concedes,
that “we
though,
majority
accuses his
He also
lenge be successful.2
plea
whether
do not address
failing to
failing
appeal,
lawyer of
alleged
vacated because
should be
drug laws
unconstitutionality of the
argue
the district
or because
incompetency
methamphetamine,
cocaine and
sufficiently inquired into his
may not have
too,
claims,
before us.
not
but those
judge did
What
competency.”1
change
at the
done
should have
for,
look
in an ineffective
we
What
must
before us is
question
us. The
not before
in-
petitioner’s
assistance claim based
assis-
lawyer rendered
whether Howard’s
is an
plea,
the time
competence at
by
standard
tance below
Strickland
would not
petitioner
allegation that
take the
while
letting
deal
al-
for counsel’s
pleaded guilty3
drugs.
painkilling
possibly impaired
him do so while
leged
allowing
error
in
dif-
altogether
lawyer did is an
What the
something
mentally incompetent.4 That is
judge did.
from what the
ferent issue
say so
He
never claims.
does
say
so
and does
assistance
To
relief
ineffective
obtain
it,
he has
other
Without
papers.
of his
establish two
counsel, Howard has to
did,
from the
allegation
prejudice
lawyer
deficiency in what his
things:
advice on
gain
with "erroneous
combined
Op. at 877 fn. 5.
1.
trial”).
going to
probable effects of
Keller,
United States v.
52, 60,
Lockhart,
106 S.Ct.
474 U.S.
3. Hill
(holding that erroneous
(1985).
What Howard does is that “the max- dicted a sentence of 120 months, to 180 imum sentence petitioner should have been probably toward the lower end because of exposed to as result guilty of his his medical condition.5 He claims it months,” was was 240 not the 292 months he ineffective assistance “for counsel got. says put And to he that “had counsel not petitioner position misrepresented petitioner making to exposure rushed judgment,” especially [to 292 when months] Petitioner would not have pleaded under the guilty.” medication, influence of Howard says never he to would not “mislead” him pleaded have about guilty but his sentencing for his ex- impairment, posure. But just complaints medication-induced these cannot suf- that pleaded he would not allege have fice to guilty had he ineffective assistance unless realized his sentence could be 292 months. counsel had some more desirable alterna- Construing papers though as he tive. had There nothing record, is in the noth- claimed he would not pleaded have guilty the allegations, nothing anywhere, to but for the narcotics is not a “liberal” suggest that he did. reading, it reading what he said as First, nothing there is to suggest that though he had something said quite differ- the plea agreement was any available at ent. earlier time. This change of plea was The case does need an evidentiary made jury with waiting in the ante- hearing with no allegation prejudice, so room, on the scheduled day of first trial. nothing more needs to be considered. But It cut exposure Howard’s to a maximum of (as majority goes further it must to months, harsher than what Howard grant a hearing), and makes I think what says lawyer predicted, probably is a mistake. majority The opinion says than better what he facing was without the that timing the late of the proffer of the deal, 360 months life. judge asked plea, combined with Howard’s uncontro- Howard, “Is you this what want do? If drug verted use and allegations of incom- don’t, you Howard, jury Mr. right petence, is justify sufficient to an eviden- outside the door.” There is nothing at all tiary hearing. It rests this conclusion suggest that the deal was available at proposition that Howard’s attorney any time, that, earlier jury may given ineffective assistance waiting in, to come that it could be deliber- stopping the proceedings investigate upon ated any until later time. There is his client’s competency once Howard stat- nothing in the record to suggest that How- ed he was under the influence of drugs. lawyer, ard’s than rather prosecutor, That strikes me anas insupportable propo- responsible was for the last minute pres- sition, inadequately reflecting prac- sure to make a deal or go to trial.
ticalities what lawyers defense must deal with. Nor is anything there in the record to complains in his suggest to the brief there would have been court, district majority which the treats as better time for Howard to deliberate about though it part his sworn the deal. He strong prescrip- alleges however, ing, counsel assured him that ”[i]t looks like it comes parents and his would receive 120 to down to 188 months.” 180 months. Counsel stated at hear- we cannot lawyer, this on for his wits allegedly dulled medicine
tion assis- he did ineffective it, pain call what assuming properly pain. Without prescription justify enough tance. was severe pain painkillers, powerful
for these *13 his abili- impaired
presumably would excruciating person A
ty to deliberate. to make as unable may be pain
physical may one for as himself judgments
sensible dulled wits both pain and
whose a make to The need medication.
pain hurry impaired in a while decision
grave situation, nothing but there
awas bad How- situation bad
suggest fault. lawyer’s
ard’s Stainer, cites Miles majority majority support does little
Miles ASSOCIA- HIKERS SIERRA ar- HIGH “assuming holds that opinion. Miles Employees TION; for Forest Service to doubt had reason guendo [counsel] Ethics and Wilderness day guilty of the Environmental competency Plaintiffs-Appellants, Watch, say that willing to plea, we are the court’s matter to bring the failure to jeopardize would attention —which wishes—is her client’s bargain, against Association, Recreation National Forest Strickland’s that violates transgression Association; Yo- High Packers Sierra con- of reasonable strong presumption Station; Pack Minarets semite Trails distinguishable, duct.” Miles Station; Station; Pack D & F Pack had discussed case counsel Station; Mammoth High Pack Sierra time at a options with him defendant’s Outfit; Creek Pack Lake Pack McGee case, in this But competent.
when he was
Trains;
Station;
Frontier
Pack
suggest
record
nothing
there is
in the
Meadows;
Reds/Agnew
Rock Creek
bargain
option
either
Station;
Outfits;
Berner’s Pack
Pack
time,
there
or that
existed at an earlier
Outfitters;
Bishop Pack
Cottonwood
defendant
time when
earlier
Station;
Train;
Pack
Glacier
Pack
impaired.
was not
Outfitters,
Intervenors,
Pack
Rainbow
and civil
in criminal
infrequently,
Not
a take-it-
adversary makes
litigation, one’s
to decide.
ten minutes
or-leave-it
offer
BLACKWELL, Regional Forest-
A.
Jack
time
enough
may not be
The ten minutes
er, Region
Forest Ser-
U.S.
may
It
grave
complex
decision.
Inyo
Bailey,
vice; Jeffrey
Supervisor,
time,
of reasons
for all
bad
sorts
Boynton,
Forest;
Su-
James
National
impairment
including
or other
physical
Forest;
pervisor,
Dale
National
Sierra
But
during
decide
minutes.
ten
Chief,
Bosworth,
Forest Ser-
A.
U.S.
attorney,
own
through no fault of one’s
vice;
Service,
Forest
United States
is the
time. Without
sometimes it
Defendants-Appellees.
blame
hang
something in the record
Miles,