Patrick English v. United States of America, Derek Tano v. United States of America, Lutrell Davis v. United States

Opinion by Judge REINHARDT; Concurrence by Judge BROWNING.

REINHARDT, Circuit Judge:

Introduction

This case forces us to attempt to make some sense of the procedural morass that surrounds habeas corpus. In all three cases, a United States magistrate presided over voir dire without the consent of the defendants. While the cases were still pending on direct appeal, the Supreme Court in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), held that it is per se reversible error for a magistrate to preside over jury selection in a felony trial without the defendant’s…