concluding that Snyder, 291 U.S. at 106, 117, 54 S.Ct. at 332, 336, and Allen, 397 U.S. at 342, 90 S.Ct. at 1060, by rejecting as "mere dicta" earlier statements of non-waivability in, e.g., Hopt and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), have rejected any such rule
How later courts described this case
- concluding that Snyder, 291 U.S. at 106, 117, 54 S.Ct. at 332, 336, and Allen, 397 U.S. at 342, 90 S.Ct. at 1060, by rejecting as "mere dicta" earlier statements of non-waivability in, e.g., Hopt and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), have rejected any such rule
- holding, in a capital case involving the question of whether the defendant properly waived his right to be present during empaneling of the jury, that “[t]he finding of a knowing and voluntary waiver is a mixed question of law and fact which we review de novo.”
- holding that an evidentiary hearing is not 17 necessary where the federal claim can be denied on the basis of the state court record, and 18 where the allegations, even if true, do not provide a basis for relief
- holding that an evidentiary hearing is not necessary where 6 the federal claim can be denied on the basis of the state court record, and where the 7 allegations, even if true, do not provide a basis for relief
Written by the judges who cited it.
The opinion
POOLE, Circuit Judge,
dissenting:
I believe that death by hanging inflicts intolerably cruel and unusual punishment, however heinous the crime; that it is unacceptable today as would be the rack and screw; and therefore is in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.
I therefore dissent.