State of Kansas v Zinke

Kansas appealed the district court decision that a letter from the general counsel for the National Indian Gaming Commission was not a final agency action. The panel affirmed. It held that general counsel letters are not listed in the Indian Gaming Regulation Act as a final agency action, similar letters from other agencies have been held to not constitute final agency action, the items in the Act’s list of final actions all require Commission decision after full administrative process while letters do not and legislative history demonstrates that only Commission actions would be final actions for review purposes. It also held the letter was no a final action under the Administrative Procedure Act because any gambling on tribal land is authorized by tribal sovereignty, the requirement for Kansas to negotiate with tribes is in the Act and in any event the letter is not binding on commission or the tribes or anyone else.

Lay v Royal

Lay appealed the denial of his habeas petition and refusal to issue a competency related stay. The panel, with one judge concurring in result, affirmed. The majority held that there was no error in not issuing the stay here as the issues were either decided in Oklahoma state courts or procedurally defaulted and no new evidence from Lay was required. It held that there no basis for believing Lay was incompetent given his professional handling of his self-representation and the fact his appointed counsel had no concerns about his competency and the substantive competency argument was rejected on the merits by the Oklahoma Court of Criminal Appeals and its finding is reasonable and Lay did not rebut the finding. It upheld Lay’s self-representation as he was competent and the trial judge warmed Lay of the disadvantages of self-representation at a capital trial. It rejected Lay’s argument his appellate counsel was ineffective because the factual basis for his procedurally barred claims were available at the time of appeal and Oklahoma allows time to develop ineffectiveness augments on first appeal and Lay was competent and the claim involving victim impact evidence was rejected by Oklahoma courts and thus was not meritorious. It finally held the joint trial of Lay and his son was not erroneous as Lay failed to argue his codefendant confession issue in Oklahoma courts, the jury was instructed to individually asses the evidence at sentencing and Aly refused several offers to sever the cases. Briscoe concurred in result arguing that the 10th circuit rule that substantive competence can never be procedurally bared should be revisited as it conflates waiver and procedural bars and is inconsistent with the limits on habeas review of state prisoner claims.