Town declared six oceanside cottages managed by Sansotta to be public nuisances. The owners sued alleging federal and state claims. The district court granted summary judgment to Town on the federal claims and remanded the state claims to state court. The panel affirmed in part and reversed in part and remanded. The panel affirmed on the due process claim as the owners were not deprived of property as they never paid fines and nuisances are not property rights protected by the due process clause. The panel affirmed on the equal protection claim as Town had a rational basis for treating the owners differently namely the cottages were closer to the ocean. The panel reversed as to the taking claim holding the claim was in fact ripe. While a claimant must normally raise the takings issue after litigating a claim for state law compensation. However, the panel held that when the defendant removes the case to federal court, the rationale for the state litigation requirement no longer applies. As the owners could not remand the takings issue, did not need to reserve its rights, did not need to plead in the alternative and abstention was unavailable, the takings claim is properly before the district court and must be remanded. The panel finally instructed the district court to revisit the remand of the state law claims given the remand of the takings claim.
Smith was convicted of witness tampering and other felonies arising form the firebombing of a witness’ house. His convictions were affirmed on direct review. He filed for habeas relief. While his petition was pending, the proof required to convict on a tampering charge was changed by the United States Supreme Court. The district court concluded the trial judge gave erroneous instructions under the old standard, but, the error was harmless. The panel affirmed. It held that instructional error is not “structural error” and relief is therefore not automatic. It next held that the correct standard for reviewing instructional error in the habeas setting is the normal substantial and injurious effect test not the harmless beyond a reasonable doubt standard for direct review. It reasoned that the same factors which led the United States Supreme Court to apply this standard in reviewing state convictions in the habeas context applied in habeas review of federal convictions because review of federal cases is like review of state cases, finality of judgments is implicated in both and habeas should not be granted to often in order to prevent degrading the writ. The panel noted it joined all other circuits to decide the issue. Applying the standard here, the panel held that because the government presented substantial evidence that the information given by the victim to local authorities was more than a mere possibility and not remote or hypothetical, a properly charged jury would have convicted. Thus, the error was harmless and the denial of the writ was affirmed.