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SAN FRANCISCO — A routine request for more time for the California attorney general to file a death penalty brief gave 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt the opportunity to take a swipe at new “fast track” rules on death appeals. In a published order extending the state’s time to file a brief in the habeas appeal of Richard Phillips, Reinhardt said the state will now have 195 days to complete its brief, an extra 45 days. “Compare that to 28 U.S.C. Sec. 2266(c)(1)(A), giving the federal court of appeals 120 days to hear and decide capital habeas corpus appeals if the attorney general of the state requests certification under [fast track],” Reinhardt wrote. Under a little-noticed provision of last year’s reauthorization of the Patriot Act, the law takes out of the court’s hands the power to decide if states meet the minimum conditions to “fast track” death appeals and puts it in the hands of U.S. Attorney General Alberto Gonzales. California has failed to meet the standards in the past, when judges reviewed its practices. It remains to be seen whether California will seek fast-track permission once the Justice Department implements the final rules. Reinhardt’s three-page order Aug. 21 in, Phillips v. Ornoski, 04-99005, noted that in capital cases records are large, issues difficult and procedural postures complicated so it is “understandable that lawyers on both sides often require a great deal of time to prepare adequately; this court grants extensions with no reluctance.”

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