FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

S A UL G ARC I A C UEV

A S , Petitioner-Appellant,

v. J AME S D. H AR

T L EY , W arden, Avenal State Prison, Respondent-Appellee. No. 12-55807 D.C. No. 2:10-cv-09775-VAP-MLG

ORDER

Filed August 4, 2016 Before: Alex Kozinski and Susan P. Graber, Circuit Judges, and Charles R. Breyer, * Senior District Judge.

O rder; Dissent by Judge Kozinski

* The Honorable Charles R. Breyer, Senior United States District Judge for the Northern District of California, sitting by designation.C UEV A S V
. H A

R T L EY 2 SUMMARY * *

Criminal Law The panel filed a published order granting an “Application to File an Oversized Replacem ent Answering Brief.” The pa nel granted the Application because o f the com plexi t y o f the case and its procedural history, including the fact that the original brief answered a short p ro se filing. Dissenting, Judge Kozin sk i wro t e t h at h e d o es not consent to the filing of a fat brief b ecause the state’s m otion is wholly inadequate. He wrote that in what has becom e a comm on and lam entable practice, lawyers, instead o f getting lea v e to file an oversized brief before the d eadline, wait for the last m inute to file chubby briefs and dare this court to bounce them

.

C OUNSEL Nathaniel H. Lipanovich, Stephe n Rossi, and Michael G

. Erm er, Irell & Manella LLP, Newport B each, C alifornia, for Petitioner-Appellant. Xiom ara Costello, Deputy Attorney Ge neral; Kenneth C. Byrne, Supe rv i sing Deputy Attorney General; Lance E. W inters, S enior As s i stant Attorney General; Gerald A

. Engler, Chief Assistant Attorney General; Kam ala D. Harris

** This sum

m ary constitutes no p art o f th e o p i n i on of the court. It h as been prepared by court staff for the convenience of the reader.C UEV A S V
. H A

R T L EY 3 Attorney General; Office of the Attorney General , Los Angeles, California; for Respondent-Appellee.

ORDER Because of the com

plexity of this case and its procedural history, including the fact th at the original brief answered a short pro se filing, the “Application to File an O v ers i z ed Replacem ent Answering Brief” i s GRANTED

. The brief tendered July 25, 2016, is ordered filed.

Circuit Judge Kozinski, dissenting: I d o not consent to the filing of a fat b rief because the state’s m otion is wholly inadequate. The state had previously filed a com

pliant brief that covered m any of the sam e p o ints, but we ordered replacem ent briefs in light o f Daire v. Lattimore , 812 F.3d 766 (9th Cir. 2016 ) (en banc). The discussion o f Daire in the state’s oversized b rief t a k es up only 3 pages; the state’s lawyer gives n o coherent explanation for why she needed to add 14 pages. The state m entions the com plexity o f the facts it wishes us to consider, but those facts were contained in the earlier version of the state’s brief. Its rem aining explanations are equally unconvincing. To m e, it seem s perfectly clear that the state filed an overly long brief because it thought it could get away with it. This has becom e a comm on and rather lam e n table p ra ctice: Instead of getting leave to file an oversized bri e f before the deadli n e, lawyers w ait for the last m inute to file chubby briefs and d are us to bounc e t h em . Of course, it’sC UEV A S V
. H A

R T L EY 4 h ard to decide cases without a brief from one of the p a rt i e s , and denying the mo t io n usually knocks the briefing and argum ent schedule out of kilter. Denying the m otion is thus m ore trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page lim its with im punity. This encourages disdain for our rules and penalizes lawyers, like petitioner’s counsel, who m ake the effort to com

ply. For my part, I don’t f

eel bound to read beyond the 14,000 words a l l owe d b y our rules, so I won’t read past page 6 6 o f the st ate’s brief. If counsel for the state wishes m e to consider any argum ent in the rem aining portion of her brief, she should feel free to file a substitute brie f, n o longer than 14,000 words, which I will read in lieu of her oversized brief, so long as it is filed no later than 7 d ays from the date of this order.