Petition for Writ of Certiorari — McCormick v. Coleman

Supreme Court brief1989

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No. 89- JOSEPH F. gp -

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In The

Supreme Court of the United States

October Term, 1989

JACK McCORMICK,

Warden of the Montana State Prison, and

MARC RACICOT,

Attorney General of the State of Montana,

Petitioners,

DEWEY E. COLEMAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Marc Racicot

~ Attorney General

PATRICIA J. SCHAEFFER*

Assistant Attorney General

State of Montana

Justice Building

215 North Sanders

Helena MT 59620-1401

(406) 444-2026

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the Due Process Clause bar the retroactive

application of a constitutional capital sentencing scheme

upon resentencing of a criminal defendant whose trial

occurred when a mandatory death penalty was in effect,

even though such retroactive application is permitted by

the Ex Post Facto Clause?

2. May a novel due process theory be applied on

collateral review to overturn a death sentence which was

final in 1979?

3. Does harmless error analysis apply to a due pro-

cess violation arising from the retroactive application of

capital sentencing procedures; and, if the error may not

be deemed harmless, what is the appropriate remedy?

TABLE OF CONTENTS

Page

CURE T IIIS PIER one c seen cccccnnccnacaces i

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FTES oe 56k cc benccerncsedds centuetbeweieda 2

RELEVANT CONSTITUTIONAL AND STATUTORY

ag | OT OT RITTTETETT TTT TEC Tre 2

STATHORMees GOP THE CAGE... 2. cesses cscewecscacs 3

I. Statement of the Facts.................s0008. 3

II. Prior Court Proceedings ..................... 5

REASONS FOR GRANTING THE WRIT ........... 9

I. THE COURT OF APPEALS’ NOVEL DUE PRO-

CESS THEORY EXPANDS THE EX POST

FACTO PROHIBITION IN CONFLICT WITH

DECISIONS OF THIS COURT................. 9

II. NEW CONSTITUTIONAL RULES OF CRIMI-

NAL PROCEDURE SHOULD NOT BE APPLIED

ON COLLATERAL REVIEW WHERE DIRECT

REVIEW OF THE CONVICTION WAS FINAL

PRIOR TO THE ANNOUNCEMENT OF THE

IOUS GPRM 60 ness cehuwsSGpusnassAesad San eeess 13

Ill. THE OPINION INCORRECTLY AND UNNEC-

ESSARILY DETERMINES THAT AN “EX POST

FACTO-TYPE DUE PROCESS VIOLATION”

MAY NEVER BE HARMLESS................. 15

A. Harmless error analysis is not precluded by

the nature of the violation................ 15

B. Assuming arguendo that the error was not

harmless, the Court’s remedy is not suffi-

ciently narrowly tailored.................. 19

ili

TABLE OF CONTENTS - Continued

Page

RIE Shs cess cncncescccccccccccccsvcneseca 21

PE I RNS ee nec e ccc cresececcscnsvccceen App. 1

APPENDIX B (Majority) ..................055. App. 74

TABLE OF AUTHORITIES

Page

CAsEs:

Beazell v. Ohio, 269 U.S. 167 (1925).............0008. 10

Bouie v. City of Columbia, 378 U.S. 347 (1964)..... 13, 14

Calder v. Bull, 3 Dall. 386 (1798) .................. 9, 11

Chapman v. California, 386 U.S. 18 (1967) ............ 15

Coleman v. Risley, 663 P.2d 1154 (Mont. 1983)......... 7

Coleman v. Sentencing Review Division of Supreme

Court of Montana, 449 U.S. 893 (1980) .............. 6

Coleman v. State, 633 P.2d 624 (1981), cert. denied,

SP Re a 5 kik Cc dGhhe eed ewee i ecine sews 7

Dobbert v. Florida, 432 U.S. 282 (1977) ..8, 10, 11, 12, 13

Duncan v. Missouri, 152 U.S. 377 (1894).............. 10

Gibson v. Mississippi, 162 U.S. 565 (1896) ......... 10, 11

Gregg v. Georgia, 428 U.S. 153 (1976) ................ 11

Hopt v. Utah, 110 U.S. 574 (1884).................... 10

Jurek v. Texas, 428 U.S. 262 (1976) ...............008. 11

Kring v. Missouri, 107 U.S. 221 (1882) ............... 11

Miller v. Florida, 482 U.S. 423 (1987).............. 10, 12

Proffitt v. Florida, 428 U.S. 242 (1976)................ 11

Reese ©. Clerk, 7G UD. SIO CEPGRD. ow. ccc ccc ccccccees 15

Satterwhite v. Texas, 108 S. Ct. 1792 (1988)........ 16, 17

State v. Coleman, 177 Mont. 1, 579 P.2d 732 (1978)..... 5

State v. Coleman, 185 Mont. 299, 605 P.2d 1000

RENO Ved Cedi nce bates eRe ES Siete ha gea cb Kaban es 6

mar

. TABLE OF AUTHORITIES - Continued

Page

Teague v. Lane, 109 S. Ct. 10600 (1989)......... 13, 14, 15

Thompson v. Missouri, 171 U.S. 380 (1898)............ 10

Weaver ». Graham, 450 U.S. 24 (1981)............. 12, 16

CONSTITUTIONAL PROVISIONS:

United States Constitution

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STATUTES:

Montana Code Annotated

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Revised Codes of Montana, 1947

~§ 94-5-304 (1974) (repealed in 1977)........... 3, 4, 5

§ 95-2206.6 to 95-2206.15 (1977) ..........ee eee e ee 2, 6

United States Code }

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No. 89-

In The

Supreme Court of the United States

October Term, 1989

—

JACK McCORMICK,

Warden of the Montana State Prison, and

MARC RACICOT,

Attorney General of the State of Montana,

Petitioners,

vV.

DEWEY E. COLEMAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Jack McCormick, warden of the Montana

State Prison, and Marc Racicot,! Attorney General of the

State of Montana, respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit

entered in this proceeding on May 5, 1989.

1 Marc Racicot is the successor in office to Mike Greely, a

named party in the proceedings below.

OPINIONS BELOW

The opinion of the Court of Appeals limited en banc

panel, reported at 874 F.2d 1280 (9th Cir. 1989), is annexed

as Appendix A. The withdrawn opinion of the three-

judge panel of the Court of Appeals is reported sub nom.

Coleman v. Risley, 839 F2d 434 (9th Cir. 1988), and is

annexed as Appendix B. The opinion of the United States

District Court for the District of Montana, which is unre-

ported, is annexed as Appendix C.

JURISDICTION

The judgment of the Court of Appeals was entered

on May 5, 1989. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

1. The Fourteenth Amendment to the United States

Constitution, in pertinent part:

{NJor shall any State deprive any person of life,

liberty, or property without due process of law ....

2. Article 1, section 10, clause 1 of the United States

Constitution, in pertinent part:

No State shall ... pass any ... ex post facto Law

3. Revised Codes of Montana, 1947, section

95-2206.6 to 95-2206.15 (1977) (now codified as Mont.

doh

Code Ann. §§ 46-18-301 to 310), the full text of which

appears in Appendix A at App. 23-28.

4. Revised Codes of Montana, 1947, section 94-5-304

(repealed in 1977):

A court shall impose the sentence of death following

conviction of aggravated kidnapping if it finds that

the victim is dead as a result of the criminal conduct.

Lp _o-

STATEMENT OF THE CASE

I. Statement of the Facts.

A complete statement of the facts of the underlying

offenses appears in the panel opinion of the Court of

Appeals at App. 75-83. On July 4, 1974, Peggy Lee Har-

stad, twenty-one years old, was abducted by two hitch-

hikers whom she had stopped to aid. Almost two months

later, her body was found on the north bank of the

Yellowstone River, west of Forsyth, Montana. The investi-

gation of her disappearance and the discovery of evi-

dence led te the arrest of Robert Dennis Nank and Dewey

Eugene Coleman, who had admitted hitchhiking together

in the area of Harstad’s disappearance on the evening

thereof. Coleman and Nank were charged with deliberate

homicide, aggravated kidnapping, and sexual intercourse

without consent. On May 7, 1975, Nank entered into a

written plea agreement with the State, pursuant to which

he entered a plea of guilty to deliberate homicide and

solicitation to commit sexual intercourse, and agreed to

testify against Coleman in return for the dismissal of the

aggravated kidnapping charge, which carried a manda-

tory death sentence pursuant to the Revised Codes of

Montana 1947, § 94-5-304 (1974). For various reasons

irrelevant to the issues herein, the State did not accept

Coleman’s plea offer.

At Coleman’s trial, Nank testified that he and Cole-

man were traveling together by motorcycle when they

ran out of gas between Roundup and Forsyth on the

evening of July 4, 1974, and they decided to hitchhike.

Peggy Harstad stopped and both men got into the car.

Nank stated that he took control of the vehicle and forced

Harstad into the back of the car where he attempted

sexual intercourse. When Nank failed in his attempt,

Coleman then forced Harstad to participate in sexual

intercourse with him. Subsequently, they drove to the

Yellowstone River, where Nank carried Harstad over his

shoulder while Coleman came from behind and struck

Harstad several times over the head with his silver

motorcycle helmet. Coleman then tried to strangle her

with a rope. Both men then carried her to the river.

Coleman went into the river and tried to drown her.

When Harstad attempted to get up, Nank went into the

river to participate. Coleman held her legs and Nank held

her head under the water until she drowned.

Coleman testified that Nank had hitchhiked alone

while Coleman waited by the motorcycle; that when

Nank returned with a car he was wet, upset and acting

strange; and that Nank said he had killed a girl. Coleman

testified that Nank gave him a purse and some other

items and instructed him to hide them. Coleman’s finger-

print was found on a piece of paper in the victim’s purse.

Coleman had offered three differing stories when ques-

tioned by the authorities about his whereabouts and

activities on July 4, 1974.

In the course of cross-examination of Nank, Cole-

man’s counsel pursued a line of questioning pertaining to

other offenses committed by Nank. Nank testified that he

and Coleman stole some rifles from a house near

Roundup, Montana, on the day of Harstad’s murder, and

that the rifles were now in the possession of the Rosebud

County Sheriff. Nank’s complete testimony on the bur-

glary is annexed as Appendix D. Coleman denied com-

mitting the burglary, first stating he was with Nank all

the time in Roundup, and then stating that Nank left him

for about an hour or two. Appendix E.

II. Prior Court Proceedings.

On November 14, 1975, the jury convicted Coleman

of deliberate homicide, sexual intercourse without con-

sent, and aggravated kidnapping. On November 21, 1975,

the state district court sentenced Coleman to 100 years’

imprisonment for the deliberate homicide, to 40 years

(later reduced to 20 years) for the sexual intercourse

without consent, and to death for the aggravated kidnap-

ping. On appeal to the Montana Supreme Court, the

convictions were upheld, but the case was remanded for

resentencing. The Montana Supreme Court held uncon-

stitutional Rev. Codes Mont. 1947, § 94-5-304 (1974).

(repealed in 1977), providing for a mandatory death pen-

alty for aggravated kidnapping resulting in the death of

the victim. State v. Coleman, 177 Mont. 1, 15-16, 579 P.2d

732, 741-42 (1978) (Coleman I).

On remand to the state district court in 1978, Cole-

man was resentenced to death following a hearing on

aggravating and mitigating circumstances pursuant to

Rev. Codes Mont. 1947, § 95-2206.6 to 95-2206.15 (1977),

App. 23-29. The court’s Findings, Conclusions, Judgment

and Order of July 10, 1978, is annexed as Appendix F. The

state trial court ruled that the application to Coleman of

the greater procedural protections of the new sentencing

statutes did not violate the ex post facto clause. App. 327.

The court found that Coleman had no criminal record,

but that he had participated in a burglary on the day of

the murder. App. 329-30. Further, the state trial court

concluded that an aggravating circumstance existed, that

none of the mitigating circumstances were sufficiently

substantial to call for leniency, and that “the only mitigat-

ing circumstance technically present in this cause is that

the defendant has no record history of prior criminal

activity.” App. 331-32. On automatic review, the Montana

Supreme Court upheld the convictions and sentences.

State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979)

(Coleman II), cert. denied, 446 U.S. 970 (1980). Rejecting

Coleman’s ex post facto argument, the court found that the

1977 amendments were procedural in nature, that no

substantial right or immunity possessed by Coleman at

the time of the offense had been taken away, and that the

amendments eased the rigor of the law as it existed at the

time of the offense. State v. Coleman, 185 Mont. at 312-24,

605 P.2d at 1010-15. Coleman did not specifically argue

that the retroactive application of the 1977 sentencing

statutes denied him due process by virtue of the fact that

evidence of the burglary became relevant to sentencing,

or that he would have changed his trial strategy.

Coleman sought further relief in the Montana

Supreme Court Sentence Review Division, but the peti-

tion was refused. Coleman v. Sentencing Review Division of

Supreme Court of Montana, 449 U.S. 893 (1980) (vacating

stay of execution of death sentence and denying cer-

tiorari). Thereafter, Coleman filed a petition with the state

district court for post-conviction relief, the denial of

which was affirmed in Coleman v. State, 633 P.2d 624

(1981), cert. denied, 455 U.S. 983 (1982). Here, Coleman

raised a due process claim in conjunction with the consid-

eration by the sentencing judge of the Roundup burglary.

On November 19, 1981, Coleman filed his petition for

a writ of habeas corpus in the United States District Court

pursuant to 28 U.S.C. § 2254. On May 11, 1982, the

proceedings were stayed to allow Coleman to exhaust an

unrelated issue in the state courts. Coleman v. Risley, 663

P.2d 1154 (Mont. 1983) (Coleman IV). Coleman’s federal

habeas corpus action then proceeded with oral argument

on cross-motions for summary judgment. On August 8,

1985, the district court granted the State’s motion for

summary judgment and denied Coleman’s motions for an

evidentiary hearing and for summary judgment. Appen-

dix C. While the petition raised a due process challenge

to the consideration of the burglary evidence in sentenc-

ing, Amended Pet., Claim 19, CR 36 at 54, the district

court did not specifically rule on that issue. The district

court found: “Considering the brutality of the crime, it

was not error for the trial judge to decide that the defen-

dant’s lack of a criminal record was not sufficiently sub-

stantial to call for leniency.” App. 305. The district court

further determined that the retroactive application of the

1977 statutes did not violate the ex post facto clause due to

the significantly greater safeguards in the new statutes.

App. 310-12.

Coleman lodged an appeal with the Ninth Circuit

Court of Appeals on October 23, 1985. Coleman claimed,

inter alia, that he had been denied his due process right to

notice that the sentencing court intended to use uncor-

roborated testimony concerning the Roundup burglary as

evidence at sentencing to deprive him of mitigation credit

for his prior clean record. Appellant’s Brief at 34-37. In

his ex post facto argument, he asserted that in developing

his trial strategy his counsel had relied on the sentencing

statute as it then existed, and that he would not have

cross-examined Nank regarding the burglary had he

known it would later be used in sentencing. Appellant's

Brief at 43-44. The three-judge panel which first consid-

ered the cause affirmed the district court judgment deny-

ing habeas corpus relief. Appendix B. The panel rejected

Coleman’s due process argument, reasoning that Cole-

man had received adequate notice that the burglary evi-

dence would be used at sentencing. App. 127-32. The

panel further held that even if Coleman were disadvan-

taged in this aspect of trial strategy, this Court’s opinion

in Dobbert v. Florida, 432 U.S. 282 (1977), dictated the

rejection of Coleman’s ex post facto claim. App. 86-94.

In his dissent, Judge Reinhardt argued that the retro-

active application of the new sentencing scheme violated

due process in that Coleman’s counsel had relied upon

the old statute in determining trial strategy. App. 265-75.

The Court of Appeals then granted Coleman’s petition for

rehearing en banc (Order, May 12, 1988), and ordered

supplemental briefing on certain enumerated questions,

including whether the retroactive application of the 1977

sentencing statutes could violate due process by reason of

possible changes in trial strategy. Order, May 26, 1988.

Following reargument, the Court of Appeals filed its en

banc opinion, withdrawing the panel opinion. Appendix

A. Declining io decide all other issues with the exception

of a jury selection question, the Court of Appeals

reversed Coleman’s death sentence on the ground that he

was denied due process by the retroactive application of

the 1977 sentencing statutes. Sidestepping the established

rule under ex post facto jurisprudence that a procedural

change which may work to the disadvantage of the

defendant is not a constitutional violation, the Court of

Appeals announced that a defendant is entitled under the

procedural component of the due process clause to notice

of the effects his trial strategy will have on the subse-

quent capital sentencing. App. 18. The Court of Appeals

further held that harmless error analysis may never be

applied to this newly-created “ex post facto-type” due

process violation because the error pervades the entire

proceeding. App. 21.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ NOVEL DUE PROCESS

THEORY EXPANDS THE EX POST FACTO PROHI-

BITION IN CONFLICT WITH DECISIONS OF

THIS COURT.

In essence, the decision of the Court of Appeals

created a new extension of the ex post facto prohibition,

labeled it a “due process violation,” and barred the appli-

cation of the harmless error doctrine to all such errors. In

fact, the Court of Appeals refused to apply the well-

established doctrine developed by this Court over a

period of two hundred years, beginning with Calder v.

Bull, 3 Dall. 386 (1798); and Hopt v. Utah, 110 U.S. 574

(1884); and continued in Dobbert v. Florida, 432 U.S. 282

(1977). Judge Wallace, in his separate concurrence and

dissent, explained the potential consequences of the deci-

sion in this case as follows:

To allow litigants to repackage their ex post facto

challenges to ameliorative laws as due process claims

requiring per se reversal would in effect eliminate a

significant limitation in ex post facto doctrine.

App. 40.

While the above comment was made in the context of

the harmless error issue, the Court of Appeals’ decision

has a broader impact because allowing criminals to

“repackage” their claims under the due process clause

will obliterate an entire branch of ex post facto jurispru-

dence. It has long been held that procedural and amelio-

rative changes, which do not affect the substantial rights

of defendants, are not prohibited by the ex post facto

clause. Hopt v. Utah, 110 U.S. 574 (1884); Duncan v. Mis-

souri, 152 U.S. 377 (1894); Gibson v. Mississippi, 162 U.S.

565 (1896); Thompson v. Missouri, 171 U.S. 380 (1898);

Beazell v. Ohio, 269 U.S. 167 (1925); Dobbert v. Florida, 432

U.S. 282 (1977); Miller v. Florida, 482 U.S. 423 (1987). This

is true even though it may work to the disadvantage of

the defendant. Dobbert v. Florida, 432 U.S. 282, 293 (1977);

Beazell v. Ohio, 269 U.S. 167, 170 (1925). This Court has

balanced the State interests in the administration and

orderly progression of the law and the interests of the

criminal defendant in a fair trial, and has reached an

equitable compromise which recognizes that “[t]he inhi-

bition upon the passage of ex post facto laws does not give

a criminal a right to be tried, in all respects, by the law in

force when the crime charged was committed.” Gibson v.

Mississippi, 162 U.S. 565, 590 (1896), quoted in Dobbert v.

Florida, 432 U.S. 282, 293 (1977).

The categories of ex post facto laws were set out by

Justice Chase in Calder v. Bull, 3 Dall. 386, 390 (1798), as

follows:

1st. Every law that makes an action done before the

passing of the law, and which was innocent when

done, criminal; and punishes such action. 2d. Every

law that aggravates a crime, or makes it greater than

it was, when committed. 3d. Every Jaw that changes

the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and

receives less, or different, testimony, than the law

required at the time of the commission of the offense,

in order to convict the offender. [Original emphasis

deleted, emphasis added.

In addition, a law which deprives one charged with a

crime of any defense available at the time of the commis-

sion of the offense is prohibited as ex post facto. Kring v.

Missouri, 107 U.S. 221 (1882). Clearly, the 1977 Montana

sentencing statutes do not fall into any of the enumerated

categories. Similar to the situation in Dobbert, here the

new statutes lessen the rigor of the former mandatory

death penalty by giving the defendant a second chance

for life with the sentencing judge, following the constitu-

tionally approved hearing allowing the presentation of

aggravating and mitigating circumstances. Gregg v. Geor-

cla, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242

(1976); Jurek v. Texas, 428 U.S. 262 (1976). The rules of

evidence were not changed to the detriment of Coleman

in relation to the issue of guilt or innocence of the crimes

charged. It is thus clear that any use of the trial testimony

at the subsequent sentencing hearing was permissible

under settled ex post facto principles, as a procedural

change having no material impact on Coleman’s substan-

tive rights.

Ignoring these time-worn and well-reasoned princi-

ples, the Court of Appeals determined, without citation

to any supporting authority, that Coleman had a due

process right to notice of every detail of the procedures

for sentencing so that he could plan his trial strategy

accordingly. Quite obviously, the Court of Appeals sim-

ply, and with no analytical predicate, grafted an addi-

tional requirement onto the ex post facto analysis under

the rubric of due process. This Court’s ex post facto

jurisprudence has already recognized the necessity for

fair warning of the effect of legislation and the reliance by

individuals upon the existing law. Weaver v. Graham, 450

U.S. 24, 28-29 (1981); Dobbert v. Florida, 432 U.S. 282, 298

(1977); Miller v. Florida, 482 U.S. 423, 430 (1987). At the

same time, the balance of interests requires the compro-

mise noted earlier, i.e., that a criminal defendant cannot

expect to be tried in all respects under the law as it

existed at the time of the offense. By repackaging Cole-

man’s ex post facto claim as a due process claim, the Court

of Appeals has blurred the distinction between clauses of

the Constitution. This radical and unprecedented depar-

ture from otherwise established constitutional standards

deserves the attention of and correction by this Court.

II. NEW CONSTITUTIONAL RULES OF CRIMINAL

PROCEDURE SHOULD NOT BE APPLIED ON

COLLATERAL REVIEW WHERE DIRECT REVIEW

OF THE CONVICTION WAS FINAL PRIOR TO

THE ANNOUNCEMENT OF THE NEW RULE.

In Teague v. Lane, 109 S. Ct. 1060, 1074 (1989), this

Court recognized that habeas corpus is a collateral rem-

edy providing an avenue for upsetting otherwise final

judgments and that “application of constitutional rules

not in existence at the time a conviction became final

seriously undermines the principle of finality which is

essential to the operation of our criminal justice system.”

A plurality of the Court held that, unless they fall within

an exception to the general rule, new constitutional rules

of criminal procedure will not be applicable to a case

which is on collateral review if direct review of the case

was completed before the new rule was announced. 109

S. Ct. at 1075, 1078.

“Direct review of Coleman’s death sentence was com-

pleted in 1979. In resentencing Coleman, the State relied

upon Dobbert v. Florida, 432 U.S. 282 (1977), which was the

sole existing authority at the time of Coleman’s resen-

tencing and direct review. That case held that procedural

and largely ameliorative changes in capital sentencing

laws may be applied retroactively, even though the defen-

dant may be disadvantaged in some manner.

Ten years later, in the decision below, the Court of

Appeals adopted a new constitutional rule which was not

dictated by precedent existing at the time the defendant’s

conviction became final. Teague v. Lane, 109 S. Ct. at 1070.

In reaching its conclusion, the Court of Appeals relied

upon Bouie v. City of Columbia, 378 U.S. 347 (1964), which

I teiinieeeeammeeeiii

held that an unforeseeable judicial interpretation of a

statute defining a crime cannot be retroactively applied to

bar conduct which previously was innocent. The Court in

Bouie noted:

If a state legislature is barred by the Ex Post Facto

Clause from passing such a law, it must follow that a

State Supreme Court is barred by the Due Process

Clause from achieving precisely the same result by

judicial construction.

Id., 378 U.S. at 353-54. The Court of Appeals has made an

unwarranted backward leap in extending the due process

theory of Bouie to bar the retroactive application of capi-

tal sentencing legislation, since retroactive criminal legis-

lation has historically been governed by the ex post facto

clause. The Court of Appeals’ new rule does not fall

within the two exceptions discussed in Teague. It does not

place certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority

to proscribe, and it is not a watershed rule implicating the

fundamental fairness of the trial and seriously dimin-

ishing the likelihood of an accurate conviction.

Because Teague was not under sentence of death, this

Court specifically declined to express a view as to how

the retroactivity approach adopted in Teague is to be

applied in the capital sentencing context, but did note:

We do, however, disagree with Justice STEVENS’

suggestion that the finality concerns underlying Jus-

tice Harlan’s approach to retroactivity are limited to

“making convictions final,” and are therefore

“wholly inapplicable to the capital sentencing con-

text.” Post, at 1081, n.3. As we have often stated, a

criminal judgment necessarily includes the sentence

imposed upon the defendant. See generally Flynt v.

Ohio, 451 US. 619, 620 (1981) (per curiam). Collateral

challenges to the sentence in a capital case, like col-

lateral challenges to the sentence in a noncapital case,

delay the enforcement of the judgment at issue and

decrease the possibility that “there will at some point

be the certainty that comes with an end to litigation.”

Sanders v. United States, 373 U.S. 1, 25 (1963) (Harlan,

J., dissenting). Cf. U.S. Dept. of Justice, Bureau of

Justice Statistics, Capital Punishment 1987, at 9 (1988)

(for the ten-year period from 1977-1987, the average

\ elapsed time from the imposition of a capital sen-

tence to execution was 77 months) (Table 10).

109 S. Ct. at 1077 n.3. Application of a creative due

process theory in this case undermines the finality of a

fourteen-year-old sentence, destroys any deterrent effect

of the sentence, and makes a mockery of the criminal

justice system. The Teague rationale logically encompasses

capital sentencing matters and should preclude applica-

tion of the novel due process theory created below.

III. THE OPINION INCORRECTLY AND UNNECES-

SARILY DETERMINES THAT AN “EX POST

FACTO-TYPE DUE PROCESS VIOLATION” MAY

NEVER BE HARMLESS.

A. Harmless error analysis is not precluded by the

\ nature of the violation.

The Court of Appeals held that the harmless error

‘ analysis of Chapman v. California, 386 U.S. 18 (1967), and

its progeny can never apply to a denial of this newly-

created due process right to advance notice of the pro-

cedures to be followed in capital sentencing. As noted by

Judge Wallace in his dissent from this holding, App. 28,

the Court of Appeals failed to apply this Court’s recent

holding in Rose v. Clark, 478 U.S. 570, 579 (1986):

————

[I]f the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption

that any other errors that may have occurred are

subject to harmless error analysis . . . . Where a

reviewing court can find that the record developed at

trial establishes guilt beyond a reasonable doubt, the

interest in fairness has been satisfied and the judg-

ment should be affirmed. As we have repeatedly

stated, “the Constitution entitles a criminal defen-

dant to a fair trial, not a perfect one.” [Citations

omitted, emphasis added.]

In addition, as Judge Wallace also noted, ex post facto

jurisprudence includes an analysis similar to harmless

error as part of the inquiry into whether the substantive

right has been violated. App. 39-40. Cf. Weaver v. Graham,

450 U.S. 24, 33-34 (1981) (change in gain-time law mate-

rially disadvantageous to prisoner). Thus, the Court of

Appeals decision conflicts in principle with this Court’s

philosophy of protecting only the substantial rights of

criminal defendants.

While the Court of Appeals recognized that harmless

error analysis may be applied in capital cases, App. 19,

see, e.g., Satterwhite v. Texas, 108 S. Ct. 1792 (1988), and

that this case does not involve one of the categories

which this Court has determined are exempt from harm-

less error analysis, App. 20, the lower court determined

that the effect of this novel due process violation was so

pervasive that it requires per se reversal. The opinion

details several alleged changes in trial strategy which

might have occurred had Coleman known there would be

a sentencing hearing on aggravating and mitigating cir-

cumstances: (1) counsel may not have elicited Nank’s

testimony regarding the burglary, (2) counsel may not

have put Coleman on the stand, and (3) counsel may have

moved to disqualify the trial judge. It is significant to

note that Coleman has never argued that he would have

disqualified the judge, see App. 37 (Wallace, J., dissent-

ing), and that the issue of whether Coleman would have

testified is a new argument raised by his appellate coun-

sel for the first time in the briefs before the en banc Court

of Appeals. Whether Coleman would have testified may

be analyzed from the record by answering the question of

whether Coleman’s testimony was necessary to rebut the

direct evidence against him in order to gain an acquittal,

or, stated another way, whether Coleman would have

been convicted and sentenced to death in the absence of

his testimony. The issue of disqualification of the sentenc-

ing judge is speculation newly injected into the case by

the Court of Appeals, and for this reason should not be

considered. In any event, the record discloses no attempt

by Coleman to disqualify the trial judge for bias or par-

tiality prior to the resentencing hearing. Nor is there any

reflection of bias against Coleman in the record.

Coleman consistently has argued in both state and

federal courts that he would not have elicited the bur-

glary testimony. Whether this evidence affected the sen-

tence is a question which lends itself to harmless error

analysis and which can be determined from the record.

See Satterwhite v. Texas, 108 S. Ct. at 1798 (1988). The

majority opinion decides that the sentencing judge

denied Coleman “any statutory credit in mitigation for

not having any prior history of criminal activity,” and

that “[djeprivation of this mitigating factor was critical,

because it eliminated a circumstance that might have

overcome the aggravating factor and allowed Coleman to

avoid the death penalty.” App. 15, fn.8. Its conclusion

ignores the extensive record on this point, which con-

clusively shows that, in the absence of disclosure to the

sentencing judge of the commission by Coleman of the

uncharged burglary, the resulting credit to Coleman of

the statutory mitigating circumstance of “no significant

history of prior criminal activity” would not have been

sufficiently substantial to call for leniency. The sentencing

judge in effect so stated, both in his written conclusion

that “the only mitigating circumstance technically present

in this cause is that the defendant has no record history of

prior criminal activity,” App. 332, and in his oral state-

ment at the time of pronouncement of sentence:

THE COURT: In pronouncing sentence I do want

the parties to know that this is a decision that is

extremely agonizing for the Court to make. I have

not looked at the points that have been raised lightly,

but many of the arguments raised by the defense, of

course have been considered heretofore, and the jury

have found from the factual standpoint that the

defendant was guilty beyond a reasonable doubt, and

I do not disagree with that conclusion of the jury. The

one mitigating circumstance is that the defendant has not

prior to this time been convicted of any felony, but in the

view of the enormity of the crime committed, and the

Court's feeling that this one circumstance does not over-

come the aggravated circumstances | have made find-

ings to this effect, written findings as required by the

law. Also, I have made conclusions and judgment

which have been furnished to the defendant and the

state at this time, and I will only at this time read the

Court’s conclusions and judgment. [Emphasis

added.]

Sentencing Tr. at 37:22-38:16. Therefore, the record on its

face shows that the consideration of the uncharged bur-

glary did not contribute to the determination that mit-

igating circumstances were not sufficient to call for

leniency. It has also been pointed out that the prosecution

would have introduced the burglary evidence at the sen-

tencing hearing had it not been brought out at trial. App.

87 (panel majority opinion). The fact that the prosecution

was aware of the burglary may be inferred from Nank’s

testimony that the rifles were in the possession of the

sheriff, App. 317, and from the fact that Nank had been

instructed not to testify about Coleman’s other crimes on

direct examination. App. 320.

If harmless error cannot be determined from the

record, then Judge Wallace’s suggestion that an evidenti-

ary hearing on this issue should be held in district court

is the appropriate remedy. App. 28. The prosecution

should be given the opportunity to prove that the error, if

any, was harmless beyond a reasonable doubt.

B. Assuming arguendo that the error was not harmless,

the Court’s remedy is not sufficiently narrowly

tailored.

Without elucidation, the Court of Appeals apparently

precluded the State from conducting a new resentencing

hearing and applying the 1977 capital sentencing statutes.

See App. 69-70 (Alarcon, concurring and dissenting). This

result goes far beyond the required remedy in this case.

The ultimate remedy for mistakenly admitted testimony

which did not affect the conviction should be a resentenc-

ing hearing in which the burglary is not considered. The

ultimate remedy for an allegedly biased sentencing judge

and for the wrongful consideration by the sentencer of

Coleman’s testimony should be a resentencing by a dif-

ferent judge who had reviewed the evidence admissible

for sentencing purposes. The Court of Appeals did not

afford the State the opportunity to resentence Coleman to

death, yet there was no ruling on whether the retroactive

application of the new statutes would run afoul of the ex

post facto prohibition. As stated by Judge Alarcon:

[I]f the majority has silently concluded that a state

may not resentence a condemned person under a

statute enacted after his or her conviction, I

respectfully suggest that this important constitu-

tional issue is deserving of thoughtful discussion and

critical analysis.

App. 70.

--In_its haste to invalidate the death sentence in this

case, a sentence which Montanans through their legisla-

tors have determined to be appropriate for the severity of

this crime, the Court of Appeals invented out of thin air a

new due process violation requiring per se reversal. The

opinion not only works a great injustice, but also bodes ill

for future capital cases in this circuit, as the claims of

criminals may be transfigured into due process claims.

CONCLUSION

For the foregoing reasons, the petitioner respectfully

requests that a writ of certiorari issue to review the

decision of the Ninth Circuit Court of Appeals.

Respectfully submitted,

Marc Racicot

Attorney General

Patricia J. SCHAEFFER*

Assistant Attorney General

State of Montana

Justice Building

215 North Sanders

Helena MT 59620-1401

*Counsel of Record

July 1989

APPENDIX

APPENDIX A, Opinion of the Court of Appeals en

RE IIEE Ss a Shdw ds seeke due teuekinsnsescaes App.

APPENDIX B, Opinion of the Court of Appeals

three-judge panel (Withdrawn)............. App.

APPENDIX C, Opinion of the United States Dis-

trict Court tor the District of Montana..... App.

APPENDIX D, Nank’s burglary testimony.... App.

APPENDIX E, Coleman’s burglary testimony. App.

APPENDIX F, Findings, Conclusions, Judgment

PPS ehadbctausacdounsnncasddeccns cs App.

287

316

323

324

~ annette

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Dewey E. COLEMAN,

Petitioner-Appellant,

No. 85-4242

i D.C. No.

Jack McCormick, Warden, CV-81-272-BLG

Montana State Prison, and OPINION

MICHAEL T. GREELY,

Attorney General for

the State of Montana,

Respondents-Appellees.

ee ee ee ee ee ee oe

Appeal from the United States District Court

for the District of Montana

James F. Battin, District Judge, Presiding

Argued En-Banc and Submitted

July 20, 1988 — San Francisco, California

Filed May 5, 1989

Before: Goodwin, Chief Judge, and Wallace, Hug, Tang,

Fletcher, Alarcon, Canby, Reinhardt, Noonan, Thompson

and Trott, Circuit Judges.

Opinion by Judge Thompson; Concurrence and Dissent

by Judge Wallace; Concurrence by Judge Reinhardt;

Concurrence by Judge Trott, joined by Judge Thompson;

Concurrence and Dissent by Judge Alarcon

COUNSEL

Timothy K. Ford, Seattle, Washington, for the petitioner-

appellant.

App. 2

Patricia Jj. Schaeffer, Assistant Attorney General, State of

Montana, Helena, Montana, for the respondents-

appellees.

OPINION

THOMPSON, Circuit Judge:

Dewey E. Coleman, a Montana state prisoner who

has been sentenced to death for the crime of aggravated

kidnapping, appeals from the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. We reverse his sentence of death and remand for

resentencing.

FACTS AND PRIOR PROCEEDINGS

The facts upon which Dewey Coleman was found

guilty by a jury on November 14, 1976, are fully set forth

in Coleman’s first appeal to the Montana Supreme Court

and need not be repeated here. State v. Coleman, 177 Mont.

1, 579 P.2d 732 (1978) (Coleman I). The following are the

facts relevant to the instant appeal.

Coleman, who is black, and his codefendant, Robert

Nank, who is white, were charged with the crimes of

deliberate homicide, aggravated kidnapping and sexual

intercourse without consent, inflicting bodily injury.

Nank entered a plea bargain with the State and escaped

the death penalty. The State refused to enter a similar

bargain with Coleman for reasons which we need not

consider in this opinion. Coleman went to trial and was

convicted on all counts. He was sentenced to 100 years

1 te ne ote (et Ln o

App. 3

for deliberate homicide and 40 years on the rape charge.

He was sentenced to death for aggravated kidnapping

under Montana’s then existing mandatory death penalty

statute.1 On appeal, the Montana Supreme Court held

that the mandatory death penalty statute was unconstitu-

tional. Coleman I, 177 Mont. 1, 579 P.2d at 741-42. Cole-

man’s death sentence was vacated and his case was

remanded to the trial court for resentencing.? Coleman

was then resentenced to death in 1978 under a new

Montana death penalty statute which had been enacted in

1977. Mont. Code Ann. §§ 95-2206.6-.15 (now codified at

Mont. Code Ann. §§ 46-18-301 to 46-18-310; hereinafter

cited in precodification version and reproduced at

Appendix). Coleman’s sentence was automatically

reviewed by the Montana Supreme Court. Mont. Code -

Ann. §§ 95-2206.12-.15. The court upheld his convictions

1 The statute provided that “[a] court shall impose the

sentence of death following conviction of aggravated kidnap-

ping if it finds that the victim is dead as a result of the criminal

conduct.” Rev. Code Mont. § 94-5-304 (1947) (repealed 1977).

2 Coleman’s conviction on all three counts, and sentence

for deliberate homicide, were affirmed. His death sentence and

his sentence for sexual intercourse without consent, inflicting

bodily injury were vacated. The Montana Supreme Court con-

cluded there was insufficient evidence to show Coleman had

inflicted bodily injury upon the victim in the course of commit-

ting sexual intercourse because she was murdered sometime

after the rape incident. Coleman I, 177 Mont. 1, 579 P.2d at

742-43. On remand, Coleman was resentenced to death and

was sentenced to 20 years for the crime of sexual intercourse

without consent, the latter sentence to run consecutively to his

sentence of 100 years for deliberate homicide. Coleman II, 185

Mont. 299, 605 P.2d 1000, 1007 (1979).

App. 4

and sentences. State v. Coleman, 185 Mont. 299, 605 P.2d

1000 (1979) (Coleman II), cert. denied, 446 U.S. 970 (1980);

Coleman v. Sentencing Review Division of Supreme Court of

Montana, 449 U.S. 893 (1980) (vacating stay of execution

of death sentence and denying certiorari).

Thereafter, Coleman filed a petition with the state

court for post-conviction relief. His judgment and sen-

tence were once again reviewed and affirmed by the

Montana Supreme Court. Coleman v. State, 633 P.2d 624

(Mont. 1981), cert. denied, 455 U.S. 983 (1982) (Coleman III).

Coleman then filed a petiton for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States Dis-

trict Court for the District of Montana. This proceeding

was stayed to enable Coleman to exhaust his state rem-

edy for review- of his convictions and death sentence in

light of a recent discovery by his then counsel of a tran-

script of a pretrial hearing. The transcript revealed that _

during the hearing Coleman’s previous counsel had made

statements to the court which implied that Coleman had

admitted participating in the murder after being given

sodium amytal. The judge who had presided at this pre-

trial hearing was the same judge who later sentenced

Coleman to death. Coleman’s convictions and death sen-

tence were once again reviewed and affirmed by the

Montana Supreme Court. Coleman v. Risley, 663 P.2d 1154

(Mont. 1983) (Coleman IV).

Coleman then returned to the district court. He filed

a motion for an evidentiary hearing on his habeas corpus

petition. He sought a hearing on twelve of thirty-seven

issues raised in his petition, and filed a motion for sum-

mary judgment on the remaining issues. The State also

filed a motion for summary judgment. The district court

denied Coleman’s request for an evidentiary hearing,

ee eee

App. 5 P

denied his motion for summary judgment, and granted

summary judgment in favor of the State.

THE CONVICTION

Jury Selection

Coleman challenges his convictions on the ground

that his sixth amendment right to an impartial jury was

violated. He contends his jury panel was selected in an

impermissibly discretic= »ry manner.?

3 In his dissent, Judge Alarcon contends Coleman also

seeks reversal of his convictions on the ground that he was

denied effective assistance of counsel, because his first attor-

ney told the court at a pretrial hearing that Coleman had taken

a sodium amytal test and had admitted participating in the

crimes with which he was charged. We disagree with this

characterization of Coleman’s appeal. Coleman’s attack regard-

ing the sodium amytal procedure and his attorney’s revelation

of its results is not directed to his convictions, but to his

sentence. Coleman’s argument is that he was sentenced to

death without due process because the results of the sodium

amytal test were revealed to the judge who later became the

judge who sentenced him to death. Appellant’s Brief, pp.

22-24. No argument is made that this incident had any effect on

Coleman’s convictions. Because we reverse Coleman’s death

sentence on other grounds, we do not reach his sodium amy-

tal/ineffective assistance of counsel argument.

The dissent also contends Coleman has raised an issue on

appeal concerning the sufficiency of the evidence on which he

was convicted. We disagree. Coleman’s only argument about

the evidence presented at his trial concerns the effect such

evidence was given when he was sentenced to death. See

Appellant’s Brief, p. 48.

App. 6

Coleman’s first jury panel was dismissed by the

Court three days before trial in response to a challenge by

Coleman. A second panel was drawn. Each name on the

jury list was assigned a number, the numbers were placed

in a box, and 200 were drawn. The court then directed the

court clerk to obtain a panel of sixty jurors by telephon-

ing persons whose names were drawn from the box to see

if they would be available to serve on a jury within the

next three days. Sixty-one of the prospective jurors indi-

cated they would be available and sixty appeared for

Coleman’s trial. Coleman I, 177 Mont. 1, 579 P.2d at 746-47.

It was from this panel that Coleman’s trial jury was

chosen.

In arguing that the sixty persons making up his jury

panel were impermissibly selected, Coleman alleges that

potential jurors were asked whether they could appear

for his trial and were allowed to excuse themselves on

grounds not revealed to him. He further alleges that the

system by which his panel of sixty potential jurors was

selected had the disproportionate effect of placing mainly

white, affluent residents from the west side of Billings,

Montana on the panel. He argues that this system was

controlled, not random, and resembled the so-called “key

man” system of jury selection.*

4 Coleman’s argument that his jury panel was selected

using the key man system is without merit. The key man

system of jury selection involves the selection of particular

persons to make up # pool from which a jury is then chosen at

random. It is not unconstitutional on its face. Castaneda v.

Partida, 430 U.S. 482, \97 (1977); United States v. Nelson, 718

_ F.2d 315, 319 (9th Cir. 1983). Here there is nothiing to suggest

the jury panel was chosen using the key man system. The

(Continued on following page)

ee ee ee

wn 2 ernereian ss ree

App. 7

Coleman contends that he is entitled to an evidenti-

ary hearing on this issue. To obtain an evidentiary hear-

ing, Coleman “must show that (1) he has alleged facts

which, if proved, would entitle him to relief, and (2) an

evidentiary hearing is required to establish the truth of

his allegations.” Harris v. Pulley, 692 F.2d 1189, 1197 (9th

Cir. 1982), rev'd on other grounds, 465 U.S. 37 (1984); see

also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert.

denied, 105 S. Ct. 137 (1984).

A. Lack of Showing of Distinctive Group

Trial by a jury of one’s peers contemplates that an

impartial jury will be drawn from a fair cross-section of

the community. Thiel v. Southern Pacific Co., 328 U.S. 217,

220 (1946). The sixth amendment does not guarantee a

randomly selected jury, United States v. Wellington, 754

F.2d 1457, 1468 (9th Cir.), cert. denied sub nom. Utz v.

United States, 106 S. Ct. 592, 593 (1985), nor does it require

that the jury contain representatives from every group in

the community. Lockhart v. McCree, 476 U.S. 162, 173-75

(1986); Thiel, 328 U.S. at 220. A fair cross-section chal-

lenge to the constitutionality of the jury venire requires a

showing:

(1) [T]hat the group alleged to be excluded is a

‘distinctive’ group in the community;

(Continued from previous page)

initial 200 jurors were selected at random. Cf. Castaneda, 430

U.S. at 497. The panel of sixty potential jurors were in esserice

volunteers, a fact which standing alone does not render the

composition of a panel unconstitutional. Nelson, 718 F.2d at

319.

App. 8

(2) [T]hat the representation of this group in venires

from which juries are selected is not fair and

reasonable in relation to the number of such

persons in the community; and

(3) [T]hat this underrepresentation is due to system-

atic exclusion of the group in the jury-selection

process.

United States v. Miller, 771 F.2d 1219, 1228 (9th Cir. 1985)

(quoting Duren v. Missouri, 439 U.S. 357, 364 (1979).

Coleman contends that as a result of the jury selec-

tion process, persons from the lower socioeconomic areas

of Billings were excluded from his panel of prospective

jurors. He has not alleged any facts, however, from which

it could be concluded that persons from the lower socio-

economic areas of Billings formed a distinctive group in

the community, or that if such a group existed it consisted

of a sufficient number of persons so that its systematic

exclusion from jury panels would support a fair cross-

section challenge under the sixth amendment. Duren, 439

U.S. at 364; see Taylor v. Louisiana, 419 U.S. 522, 531 (1975);

United States v. Kleifgen, 557 F.2d 1293 (9th Cir. 1977);

United States v. Potter, 552 F.2d 901, 904-05 (9th Cir. 1977).

Having failed to demonstrate the existence of a “distinc-

tive” group, Coleman’s claims that such a group was

underrepresented in jury venires or was systemiatically

excluded in the jury selection process also fail.

B. Method of Selection of Available Jurors

Coleman challenges the clerk’s dismissal of 139 of the

200 potential jurors drawn from the box. There is nothing

in the record, however, to suggest that the jurors who

were excused by the clerk were excused for any reason

App. 9

other than their inability to serve in a jury trial which was

to commence in three days. Coleman I, 177 Mont. 1, 579

| P.2d at 746. Coleman does not contend, nor does the

record reveal, that the 200 names from which the 60

members of his panel were chosen do not represent a fair

cross-section of the community.

The method of jury selection in Coleman’s case was

similar to that which occurred in United States v. Ander-

son, 509 F.2d 312 (D.C. Cir. 1974), cert. denied, 420 U.S. 991

(1975). There, 200 to 300 jurors were selected for jury

service. The defendant did not contend that these jurors

were not representative of a fair cross-section of the com-

munity. The jurors were told that the trial would be

lengthy and the court asked how many jurors would be

able to serve. Sixty-eight jurors indicated they would be

available, and sixty of these were selected for the panel.

Id. at 321. On appeal the defendant contended the jurors

consisted of volunteers and thus did not represent a

cross-section of the community. Id. In rejecting this con-

tention, the court concluded that the underlying comple-

ment of jurors represented a fair cross-section of the

community and “[nJeither the panel nor the trial jury

became any the less so by reason of the technique the

judge employed.” Id. at 322. The court went on to state,

“the judge did not exclude anyone or any cognizable

group. The sole criterion he employed was ability to

serve longer; the panel from which the jury was drawn

was distinguished only by that quality.” Id. (footnote

omitted); see also United States v. Branscome, 682 F.2d 484,

485 (4th Cir. 1982) (grand jury); United States v. Kennedy,

548 F.2d 608, 611 (Sth Cir.), reh’g dented, 554 F.2d 476 (5th

Cir.), cert. denied, 434 U.S. 865 (1977).

App. 10

Coleman did not present any affidavit or other evi-

dence to suggest jurors were dismissed for any reason

other than unavailability. His challenge to the sixty-per-

son jury panel “consists exclusively of counsel’s state-

ments, unsworn and unsupported by any proof or offer

of proof.” Frazier v. United States, 335 U.S. 497, 503 (1948).

These “conclusory allegations do not provide a sufficient

basis to obtain a hearing in federal court.” Harris, 692

F.2d at 1199.

Finally, Coleman argues in his reply brief that the

trial judge improperly disqualified two jurors because of

their opposition to the death penalty. He has failed to

present any showing that would justify an evidentiary

hearing on this issue. Maggio v. Williams, 464 U.S. 46, 50

(1983) (per curiam).

We conclude that Coleman’s sixth amendment right

to an impartial jury was not violated.

Ill

THE SENTENCE

Coleman challenges his sentence of death on the

grounds that (a) his resentencing under the 1977 death

penalty statute violated the ex post facto clause of the

Constitution; (b) Montana’s death penalty statute uncon-

stitutionally required him to bear the burden of proof of

mitigating factors; (c) his trial and death sentence, which

occurred because the State refused to make the same plea

bargain with him that it made with Nank, were the result

of racial discrimination; and (d) he was denied due pro-

cess of law when he was sentenced to death under a

statute not in effect at the time of his trial. Because we

App. 11 ~

reverse Coleman’s death sentence on the ground that he

was denied due process in the imposition of that sen-

tence, we do not reach Coleman’s other arguments.>

Coleman was convicted and first sentenced to death

in 1975 under a mandatory death penalty statute subse-

quently held to be unconstitutional in 1978 by the Mon-

tana Supreme Court in Coleman I, 177 Mont. 1, 579 P.2d at

741-42. In 1977, the Montana legislature repealed the

death penalty statute under which Coleman had origi-

nally been tried and sentenced and passed a new death

penalty statute, the constitutionality of which Montana’s

supreme court upheld in State v. McKenzie, 177 Mont. 280,

581 P.2d 1205, 1228-29 (Mont. 1978), vacated on other

grounds, 443 U.S. 903 (1979). Coleman was resentenced to

death in 1978 under this new statute.

Pursuant to section 95-2206.6 of the 1977 statute (see

Appendix), the judge who presided over the trial is also

required to conduct a sentencing hearing and determine

whether, under sections 95-2206.8 or 95-2206.9 of the

5 Both parties agree, and it is clear from the record, that

Coleman has exhausted his state remedies on this issue by

arguing before the Montana courts that the application of

Montana’s 1977 death penalty law to this case violated due

process. The issue is thus properly before us on appeal.

6 In Coleman I, the Montana Supreme Court held that

Montana’s mandatory death penalty statute was unconstitu-

tional because “[t]here is no provision for the trial court to

consider any mitigating circumstances.” Coleman I, 177 Mont.

1, 579 P.2d at 742. The court found the requirements of the

statute were inconsistent with the Supreme Court’s holdings in

Woodson v. North Carolina, 428 U.S. 280 (1976), Coker v. Georgia,

433 U.S. 584 (1977) and Roberts v. Louisiana, 431 U.S. 633 (1977).

App. 12

statute, there exist any aggravating or mitigating circum-

stances for purposes of determining the sentence to be

imposed. Under this statutory scheme, the trial court

must impose a sentence of death if it finds the existence

of at least one of the enumerated aggravating circum-

stances, “and finds that there are no mitigating circum-

stances sufficiently substantial to call for leniency.” Mont.

Code Ann. § 95-2206.10. The aggravating circumstance

relevent to this case is subsection (7) of section 95-2206.8:

“(t]he offense was aggravated kidnapping which resulted

in the death of the victim.” The sentencing judge con-

cluded that there were no mitigating circumstances suffi-

ciently substantial to call for leniency, and sentenced

Coleman to death. Coleman contends that, in light of the

procedural framework of the revised statute, the imposi-

tion of his death sentence under it violated the due pro-

cess clause of the Constitution. We agree.

We begin our analysis of this issue by noting that the

Supreme Court has not to date addressed a due process

challenge to the retroactive application of a sentencing

statute that resulted in the death sentence. The retroactive

application of statutes has typically been challenged as

violative of the ex post facto clause, U.S. Const., art. I, § 10.

See, e.g., Dobbert v. Florida, 432 U.S. 282 (1977); Thompson v.

Missouri, 171 U.S. 380 (1898); Knapp v. Cardwell, 667 F.2d

1253 (9th Cir.), cert. denied, 459 U.S. 1055 (1982). In Dob-

bert, the Supreme Court upheld the retroactive applica-

tion of Florida’s capital sentencing law under the ex post

App. 13

facto clause, but did not address the due process issue.”

The Court in Dobbert reiterated the “well settled” princi-

ple that the ex post facto clause does not “ ‘limit the

legislative control of remedies and modes of procedure

which do not affect matters of substance.’ ” Dobbert, 432

U.S. at 293 (quoting Beazell v. Ohio, 269 U.S. 167, 171

(1925)). As a corollary to this principle, the Court noted

that “[e]ven though it may work to the disadvantage of a

defendant, a procedural change is not ex post facto.” Id. By

contrast, the procedural component of the due process

clause protects individuals’ rights to fundamentally fair

procedures before they are deprived of their liberty

rights. See Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 161 (1951) (Frankfurter, J., concurring).

Especially in the capital sentencing arena, this court has

7 The Court in Dobbert upheld the imposition of a death

sentence on a defendant who was tried and sentenced under a

valid capital punishment statute even though the statute was

not in effect at the time the crime was committed. The amend-

ment to the statute came after commission of the crime but

before trial. By contrast, in the present case Coleman was

sentenced under an unconstitutional capital punishment stat-

ute. At least two courts have concluded that this factual dis-

tinction from Dobbert is decisive and have declined to

resentence under new statutes defendants who were tried,

convicted and sentenced under unconstitutionally defective

statutes. See Meller v. State, 94 Nev. 408, 409 n.3, 581 P.2d 3, 4

n.3 (1978) (per curiam); State v. Rogers, 270 S.C. 285, 291, 242

S.E. 2d 215, 217-18 (1978); cf., State v. Lindquist, 99 Idaho 766,

589 P.2d 101, 105 (1979) (acknowledging factual distinction

with Dobbert but resting decision on other grounds). Because

we decide this case on due process grounds, rather than under

the ex post facto clause as in Dobbert, we do not reach Coleman’s

ex post facto argument.

App. 14

an obligation to scrutinize closely the sentencing pro-

cedures against “fundamental principles of procedural

fairness.” See Presnell v. Georgia, 439 U.S. 14, 16 (1978);

Gardner v. Florida, 430 U.S. 349, 357 (1977).

When one compares the sentencing law in effect at

the time Coleman was tried and sentenced with the law

under which he was resentenced, it is apparent that

application of the procedural aspects of the new statute to

Coleman’s case violated due process. Under the Montana

death penalty statute which was in effect when Coleman

was originally tried and sentenced, once a defendant was

convicted of the crime of aggravated kidnapping, a sen-

tence of death was mandatory. Rev. Code Mont.

§ 94-5-304 (1947) (repealed 1977). Montana law did not

permit the sentencer to consider mitigating circum-

stances. Therefore, the only factor in Coleman’s trial

impacting whether he would live or die was whether or

not he was convicted of aggravated kidnapping.

The new law under which Coleman was resentenced

contains procedures which mandate what is tantamount

to a second trial. This “second trial” is the sentencing

hearing. The judge who presides over the guilt phase of

the trial is the same judge who presides over the sentenc-

ing hearing. This judge decides whether a defendant lives

or dies. Mont. Code Ann. § 95-2206.6. Evidence, regard-

less of its content, which came in during the guilt phase

may be considered by the sentencing judge during the

sentencing hearing. Id. § 95-2206.7.

As Coleman’s counsel prepared for trial, during pre-

trial proceedings, and during trial, he had no idea that

the decisions he was making would have any effect on a

App. 15

post-trial decision by the trial judge whether Coleman

lived or died. Coleman’s counsel could not have known

that a new law would be enacted under which the same

judge who presided at Coleman’s trial would preside at a

subsequent sentencing hearing and would consider,

among other things, Coleman’s prior record of criminal

activity, be it good or bad. He only knew that if Coleman

were convicted of aggravated kidnapping, he would die.

Thus, it made no difference during Coleman’s trial

whether evidence of prior criminal activity came in.

Indeed, Coleman’s counsel presented just such evidence

on cross-examination of Coleman’s codefendant, Robert

Nank. He elicited testimony from Nank (which Coleman

denied) that Nank and Coleman had committed a robbery

on the day of the murder. Coleman’s counsel brought out

this testimony in an apparent attempt to discredit Nank.

But would he have done so if he had known this testi-

mony would provide evidence to negate mitigation, a

circumstance which could mean the death of his client?®

Not knowing that there would be any post-conviction

death penalty hearing, how could Coleman’s counsel

have gauged the probative value of this evidence in

8 When Coleman was resentenced under the new death

penalty statute, the sentencing judge stated that he was relying

on the burglary to which Nank testified, and which Coleman

denied, to deny Coleman any statutory credit in mitigation for

not having any prio: history of criminal activity. See Mont.

Code Ann. § 95-2206.9(1). Deprivation of this mitigating factor

was critical, because it eliminated a circumstance that might

have overcome the aggravating factor and allowed Coleman to

avoid the death penalty.

App. 16

deciding whether the chance of an acquittal was so

enhanced by its admission that it was worth the risk to

bring it before the jury, notwithstanding the conse-

quences it might have at a later death penalty hearing

before the trial judge? Would Coleman’s counsel have

made the tactical decision he made? We don’t know.

Coleman’s counsel never had the opportunity to make

this choice. The choice was made for him by application

of the new death penalty statute at his sentencing hear-

ing. Coleman’s trial judge became his sentencer and al! of

the trial evidence relevant to the newly adopted catego-

ries of aggravating and mitigating circumstances became

crucial to the sentencer’s decision whether Coleman lived

or died.

Coleman’s testimony, to which the sentencing judge

referred in imposing his sentence, also impacted the sen-

tencing judge’s imposition of the death penalty. Appar-

ently Coleman’s trial counsel believed that it was

necessary for Coleman to testify in order to avoid a

conviction. But would he have made this same choice if

he had known Coleman’s testimony, not only its content

but Coleman’s demeanor on the stand and how he held

up under cross-examination, would be considered at a

post-conviction sentencing hearing on the question

whether Coleman lived or died? Again, this decision,

whether or not to testify in one’s own defense, can only

be made rationally if the consequences of such a course of

action are known. Here they were not.

The new death penalty statute also impacted the

delicate decision of whether to challenge the trial judge.

At the time Coleman was tried, Montana permitted a

party to a criminal case to remove the assigned judge

App. 17 .

without cause. Rev. Code Mont. § 95-1709 (1949)

(amended and recodified at Mont. Code Ann. § 3-1-804).

Indeed, the prosecution removed the first judge assigned

to Coleman’s case because of a belief that he was preju-

diced against the prosecution’s position. Coleman might

have elected to remove the next judge who was assigned

the case. He did not. But he did not know that under the

new statute his trial judge would become his sentencer, if

he were convicted. It is one thing to accept a judge for the

purpose of conducting a fair trial, and quite another to

accept that judge not only to conduct the trial but to

become the sole decisionmaker on the question of life or

death. Coleman had no reason to consider these factors

under the old law. They became relevant only under the

new law. Realistically, therefore, Coleman never had the

opportunity to make an informed decision whether to

challenge the trial judge, and thereby prevent him from

becoming the sentencer. That scenario simply did not

present itself under the old law. And yet, Coleman had to

bear the consequence of sentencing under the new law as

if such a decision had been made.

The finality and severity of a death sentence makes it

qualitatively different from all other forms of punish-

ment. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 (1978)

(plurality opinion). The Supreme Court has stressed the

great need for reliability in capital cases requiring that

“capital proceedings be policed at all stages by an espe-

cially vigilant concern for procedural fairness and for the

accuracy of factfinding.” Strickland v. Washington, 466 U.S.

668, 704 (1984) (Brennan, J., concurring in part and dis-

senting in part); see also California v. Ramos, 463 U.S. 992,

998-99 (1983) (“the qualitative difference of death from all

App. 18

other punishments requires a correspondingly greater

degree of scrutiny of the capital sentencing determina-

tion”) (footnote omitted).

“The defendant has a legitimate interest in the char-

acter of the procedure which leads to the imposition of

[the death] sentence. . . .” Gardner, 430 U.S. at 358. When

human life is at stake, the need to ensure that punishment

is meted out fairly and in a noncapricious manner is

preeminent. Dobbert, 432 U.S. at 309 (Stevens, J., dissent-

ing). The defendant is due at least that amount of process

which enables him to put on a defense during trial know-

ing what effect such a strategy will have on the subse-

quent capital sentencing, the results of which may be

equally if not more critical to the defendant than the

conviction itself.

Coleman was given no notice whatsoever of the life

and death consequences of his actions in defending him-

self against the State’s prosecution before and during

trial. A defendant’s right to notice and to fair warning of

the conduct that impacts upon his liberty is a basic princi-

ple long recognized by the Supreme Court. Cf. Bouie v.

City of Columbia, 378 U.S. 347, 350-51 (1964); In re Oliver,

333 U.S. 257, 273 (1948). Because Coleman had no reason

to suspect that his decisions at trial would comeé vack to

haunt him at a sentencing hearirg, we must conclude that

he was denied due process when he was resentenced to

death under Montana’s revised death penalty statute.

The State argues that even if Coleman’s due process

rights were violated, the error was harmless. Ever since

Chapman v. California, 386 U.S. 18 (1967), it has been the

general rule that “an otherwise valid conviction should

App. 19

not be set aside if the reviewing court may confidently

say, on the whole record, that the constitutional error was

harmless beyond a reasonable doubt.” Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986). The harmless error rule

“recognizes . . . that the central purpose of a criminal trial

is to decide the factual question of the defendant’s guilt

or innocence . . . and promotes public respect for the

criminal process by focusing on the underlying fairness

of the trial rather than on the virtually inevitable pres-

ence of immaterial error.” Id. (citations omitted). The

Supreme Court has not exempted capital cases from

harmless error analysis. See, e.g., Satterwhite v. Texas, 108

S. Ct. 1792 (1988) (applying harmless error analysis); Gil-

bert v. California, 388 U.S. 263 (1967) (same); see also Hitch-

cock v. Dugger, 107 S. Ct. 1821, 1824 (1987) (reversing

death sentence because there was constitutional error and

state did not show that error was harmless).

Chapman and its progeny have recognized, however,

that the harmless error rule has exceptions. As the Court

in Chapman observed, “there are some constitutional

rights so basic to a fair trial that their infraction can never

be treated as harmless error.” 386 U.S. at 23; see id. at 23

n.8, citing Gideon v. Wainwright, 372 U.S. 335 (1963) (com-

plete denial of right to counsel); Payne v. Arkansas, 356

U.S. 560 (1958) (introduction of coerced confession);

Tumey v. Ohio, 273 U.S. 510 (1927) (adjudication by biased

judge). Since Chapman, the Court has added te the list of

constitutional violations which merit per se reversal. See,

e.g., Waller v. Georgia, 467 U.S. 39, 49 & n.9 (1984) (public

trial); Holloway v. Arkansas, 435 U.S. 475 (1978) (conflict of

interest in representation throughout entire proceeding);

App. 20

Faretta v. California, 422 U.S. 806 (1975) (self-representa-

tion); Price v. Georgia, 398 U.S. 323 (1970) (double jeop-

ardy). In adding to this list, however, the Court has

emphasized that the “errors to which Chapman does not

apply ... are the exception and not the rule.” Rose v Clark,

478 U.S. 570, 578 (1986).

This case does not involve one of the categories listed

above which the Supreme Court has determined to be

exempt from Chapman harmless error analysis. In this

case, the critical factor rendering violations of these

rights inappropriate for harmless error analysis is the

reviewing court’s inability to determine whether such

violations were in fact harmless beyond a reasonable

doubt. See, e.g., Satterwhite, 108 S. Ct. at 1798 (harmless

error rule applies since “reviewing court can make an

intelligent judgment about whether the erroneous admis-

sion of psychiatric testimony might have affected a capi-

tal sentencing jury”) (emphasis added). Errors that either

“abort[] the basic trial process ... or deny] it alto-

gether,” Rose, 478 U.S. at 578 n.6, have an effect on the

composition of the record so pervasive that it cannot be

determined by the reviewing court. See also Satterwhite,

108 S. Ct. at 1797 (errors that “pervade the entire proceed-

ing” and whose scope “cannot be discerned from the

record” require per se reversal); Van Arsdall, 475 U.S. at

681 (suggesting that errors having a pervasive effect on

the factfinding process are not susceptible to harmless

error analysis). To apply harmless error analysis under

such circumstances would require the reviewing court to

engage in an inquiry that was “purely speculative.”

Satterwhite, 108 S. Ct. at 1797.

App. 21

Applying the foregoing principles to this case, we

hold that the due process violation here is not subject to

harmless error analysis. Coleman was sentenced to death

under a statute not in effect at the time of his trial. The

new statute added a sentencing “trial” at which the sen-

tencing judge could consider any evidence that came in

during the guilt phase. By contrast, the old statute

required the death penalty once a defendant was con-

victed of aggravated kidnapping. Coleman’s counsel

made countless tactical decisions at trial aimed solely at

obtaining Coleman’s acquittal, without even a hint that

evidence in the record would be considered as either

mitigating or aggravating factors. This due process viola-

tion had a pervasive effect on the composition of the trial

record. As we have already observed, Coleman’s counsel

might not have called his client to testify under the new

statute. He might not have brought in evidence of Cole-

man’s prior criminal activity in his cross-examination of

Nank. He might have challenged the trial judge. It would

be fruitless in this case to require trial counsel to provide

a record of how he or she would have handled the case

differently. The error is such that no additional evidence

is needed to demonstrate that the error “pervade[s] the

entire proceeding.” See id.; see also Raley v. Ohio, 360 U.S.

423, 439 (1959) (it is impermissible in a criminal case to

excuse due process violations by assuming that the

defense would have acted as it did had no violation

occurred). We will not affirm Coleman’s death sentence

by speculating that his defense counsel might have made

the same pretrial and trial decisions regardless of the

sentencing scheme. See Givens v. Housewright, 786 F.2d

1378, 1381 (9th Cir. 1986).

App. 22

We, therefore, REVERSE the district court and

REMAND with instructions to determine a reasonable

time for the State to vacate Coleman’s sentence of death

on the aggravated kidnapping count. If within such time

the State does not vacate Coleman’s death sentence, the

district court is instructed to grant the writ of habeas

corpus as to the aggravated kidnapping count.? The opin-

ion of the three-judge panel in this case, reported at 839

F.2d 434 (9th Cir. 1988), is withdrawn.

9 Coleman’s contention that he was prosecuted, and sen-

tenced to death, because of race discrimination when the state

plea bargained with Nank, a white man, but refused to enter

into a plea bargain with Coleman, who is black, does not

impact his conviction of deliberate homicide. He would have

been convicted upon his offer to plead guilty to this crime in

any event. Nor does it have any disadvantageous impact on

Coleman by reason of his conviction of sexual intercourse

without consent, a crime different from the crime of solicitation

to commit sexual intercourse to which Nank pleaded guilty.

Nank’s sentence for solicitation to commit sexual intercourse

(Nank being the “solicitor” and Coleman the “solicitee”) was

40 years. Coleman’s sentence for sexual intercourse without

consent, the crime he was eventually left convicted of follow-

ing his first appeal, was 20 years. Both sentences were the

maximums for the respective crimes. The disparity in the sen-

tences occurred when the Montana Supreme Court struck the

bodily injury element from Coleman’s conviction of sexual

intercourse without consent.

Coleman’s racial discrimination claim, however, does

impact his conviction of aggravated kidnapping, a crime to

which his plea offer would not have applied. Upon resentenc-

ing, the state court will have to determine what sentence to

impose on Coleman and how to treat his conviction of aggra-

vated kidnapping in view of our reversal of his death sentence.

Until Coleman is resentenced, we cannot evaluate the merits of

(Continued on following page)

App. 23

APPENDIX

95-2206.6. Sentence of death — hearing on imposition

of death penalty. When a defendant is found guilty of or

pleads guilty to an offense for which the sentence of

death may be imposed, the judge who presided at the

trial or before whom the guilty plea was entered shall

(Continued from previous page)

his claim of racial discrimination based upon the state’s refusal

to plea bargain with him as it did with Nank.

In his dissent, Judge Alarcon states that he “do[es] not

understand the majority’s reluctance to face up to Mr. Cole-

man’s constitutional attack on the judgment of conviction for

aggravated kidnapping, deliberate homicide, and forcible rape

in the appeal presently before this court. If Mr. Coleman has

stated sufficient facts to show that these convictions were

obtained in violation of his constitutional rights, he is entitled

to an evidentiary hearing i in the district court now.” Alarcon, J.,

dissenting, p. 4740. We disagree. There is a strong practical

possibility that today’s decision upholding one of Coleman’s

principal constitutional arguments will serve ultimately to

make it unnecessary for us to consider Coleman’s remaining

claims. While this may depend in part on Coleman’s and

Montana’s actions following remand, it would not be appropri-

ate for us to presume that those actions will fail to eliminate

any need for this court to address further constitutional

arguments.

We express no opinion as to whether Montana would be

precluded from again seeking the death penalty in the event

Coleman obtains a new trial. Compare Bullington v. Missouri,

451 U.S. 430 (1981), and Fitzpatrick v. McCormick, No. 878-4027,

slip op. (9th Cir. Mar. 7, 1989), with United States v. DiFrancesco,

449 U.S. 117 (1980); North Carolina v. Pearce, 395 U.S. 711 (1969);

Stroud v. United States, 251 U.S. 15 (1919); and United States v.

Andersson, 813 F.2d 1450 (9th Cir. 1987).

App. 24

conduct a separate sentencing hearing to determine the

existence or nonexistence of the circumstances set forth in

95-2206.8 and 95-2206.9 for the purpose of determining

the sentence to be imposed. The hearing shall be con-

ducted before the court alone.

95-22.06.7. Sentencing hearing — evidence that may be

received. In the sentencing hearing, evidence may be

presented as to any matter the court considers relevant to

the sentence, including but not limited to the nature and

circumstances of the crime, the defendant’s character,

background, history, mental and physical condition, and

any other facts in aggravation or mitigation of the pen-

alty. Any evidence the court considers to have probative

force may be received regardless of its admissibility

under the rules governing admission of evidence at crimi-

nal trials. Evidence admitted at the trial relating to such

aggravating or mitigating circumstances shall be consid-

ered without reintroducing it at the sentencing proceed-

ing. The state and the defendant or his counsel shall be

permitted to present argument for or against sentence of

death.

95-2206.8. Aggravating circumstances. Aggravating

circumstances are any of the following:

(1) The offense was deliberate homicide and was

committed by a person serving a sentence of imprison-

ment in the state prison.

(2) The offense was deliberate homicide and was

committed by a defendant who had been previously con-

victed of another deliberate homicide.

App. 25

(3) The offense was deliberate homicide and was

committed by means of torture.

(4) The offense was deliberate homicide and was

committed by a person lying in wait or ambush.

(5) The offense was deliberate homicide and was

committed as a part of a scheme or operation which, if

completed, would result in the death of more than one

person.

(6) The offense was deliberate homicide as defined

in subsection (1)(a) of 94-5-102 and the victim was a peace

officer killed while performing his duty.

(7) The offense was aggravated kidnapping which

resulted in the death of the victim.

95-2206.9. Mitigating circumstances. Mitigating cir-

cumstances are any of the following:

(1) The defendant has no significant history of prior

criminal activity.

(2) The offense was committed while the defendant

was under the influence of extreme mental or emotional

disturbance.

(3) The defendant acted under extreme duress or

under the substantial domination of another person.

(4) The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to

the requirements of law was substantially impaired.

(5) The victim was a participant in the defendant’s

conduct or consented to the act.

App. 26

(6) The defendant was an accomplice in an offense

committed by another person, and his participation was

relatively minor.

(7) The defendant, at the time of the commission of

the crime, was less than 18 years of age.

(8) Any other fact exists in mitigation of the penalty.

95-2206.10. Consideration of aggravating and mit-

igating factors in determining sentence. In determining

whether to impose a sentence of death or imprisonment,

the court shall take into account the aggravating and

mitigating circumstances enumerated in 95-2206.8 and

95-2206.9 and shall impose a sentence of death if it finds

one or more of the aggravating circumstances and finds

that there are no mitigating circumstances sufficiently

substantial to call for leniency. If the court does not

impose a sentence of death and one of the aggravating

circumstances listed in 95-2206.8 exists, the court may

impose a sentence of imprisonment for life or for any

term authorized by the statute defining the offense.

95-2206.11. Specific written findings of fact. In each

case in which the court imposes the death sentence, the

determination of the court shall be supported by specific

written findings of fact as to the existence or nonexistence

of each of the circumstances set forth in 95-2206.8 and

95-2206.9. The written findings of fact shall be substanti-

ated by the records of the trial and the sentencing

proceeding.

95-2206.12. Automatic review of sentence. The judg-

ment of conviction and sentence of death are subject to

App. 27

automatic review by the supreme court of Montana as

provided for in 95-2206.13 through 95-2206.15.

95-2206.13. Review of death sentence - priority of

review — time for review. The judgment of conviction and

sentence of death are subject to automatic review by the

supreme court of Montana within 60 days after certifica-

tion by the sentencing court of the entire record unless

the time is extended by the supreme court for good cause

shown. The review by the supreme court has priority

over all other cases and shall be heard in accordance with

rules promulgated by the supreme court. The sentence

review shall be in addition to direct appeal, if taken, and

the review and appeal shall be consolidated for

consideration.

95-2206.14. Transcript and records of trial transmit-

ted. The clerk of the trial court, within 10 days after

receiving the transcript, shall transinit the entire record

and transcript to the supreme court.

95-2206.15. Supreme court to make determination as

to the sentence. The supreme court shall consider the

punishment as well as any errors enumerated by way of

appeal. With regard to the sentence, the court shall

determine:

(1) whether the sentence of death was imposed

under the influence of passion, prejudice, or any other

arbitrary factor;

(2) whether the evidence supports the judge’s find-

ing of the existence or nonexistence of the aggravating or

mitigating circumstances enumerated in 95-2206.8 and

95-2206.9; and

App. 28

(3) whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant. The court

shall include in its decision a reference to those similar

cases it took into consideration.

WALLACE, Circuit Judge, concurring in part and dissent-

ing in part:

I agree with the majority that there was no infringe-

ment of Coleman’s sixth amendment right to an impartial

jury and, therefore, concur in part II of the opinion. I also

agree with part III to the extent that resentencing Cole-

man under Montana’s 1977 death penalty statute violated

his due process rights. I disagree, however, with part III’s

statement that “[i]Jt would be fruitless in this case to

require trial counsel to provide a record of how he or she

would have handled the case differently.” Maj. op. at

4701-02. Rather, I would remand for an evidentiary hear-

ing to determine whether the due process violation was

harmless beyond a reasonable doubt under Chapman v.

California, 386 U.S. 18 (1967) (Chapman). As the Court

recently held in Rose v. Clark, 478 U.S. 570 (1986), “while

there are some errors to which Chapman does not apply,

they are the exception and not the rule. . . .[I]f the

defendant had counsel and-was tried by an impartial

adjudicator, there is a strong presumption that any other

errors .. . are subject to harmless-error analysis.” Id. at

578-79 (citation omitted) (emphasis added). Under this

holding, we should apply this strong presumption in this

case. I do not see how the majority has rebutted this

strong presumption.

App. 29

Though brought under the due process clause, Cole-

man’s argument closely resembles an ex post facto claim.

See Maj. op. at 4694. The majority would add this new

kind of due process violation to the restricted list of

constitutional errors which require per se reversal. Id. at

4700-01. According to the majority, this due process viola-

tion had so pervasive an effect on the record that we, as a

reviewing court, cannot determine whether the error was

harmless beyond a reasonable doubt. Id. at 4700-01.

I agree that the record, in its present state, cannot

yield an answer to the harmless error inquiry. In my view,

however, the reason for this deficiency lies in the pro-

cedural posture of this case and not in the inherent nature

of the right violated. The district court entered summary

judgment for the State without holding an evidentiary

hearing. Had it held an evidentiary hearing and consid-

ered Coleman’s due process claim, the district court could

have determined whether the due process violation was

harmless beyond a reasonable doubt. We then would be

in a position to “confidently say, on the whole record,

[whether] the constitutional error was harmless beyond a

reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986) (Van Arsdall) (emphasis added).

Coleman’s alleged prejudice could be evaluated by

the district court on remand. The majority recites three

specific examples of how Coleman might have been prej-

udiced. According to the majority, had Coleman’s counsel

known that his client would be sentenced under the 1977

statute, he (1) might not have called Coleman to testify,

App. 30

(2) might not have brought in evidence of Coleman’s

prior criminal activity in his cross-examination of Nank,

and (3) might have challenged the trial judge. Id. at

4701-02.

I see no reason why these (and any other) hypotheses

cannot be tested in an evidentiary hearing. Coleman’s

counsel may well testify that, in light of other objectives,

he would have called his client to the stand anyway. Even

if he would not have called Coleman, it may be that

Coleman’s testimony was cumulative or did not contrib-

ute to the finding of any aggravating circumstance. If so,

Coleman’s testimony may have been harmless beyond a

reasonable doubt. As for Coleman’s counsel’s decision to

bring in evidence of Coleman’s prior criminal activity, the

- district court might determine that the prosecutor likely

would have submitted this evidence at the sentencing

hearing anyway. Given this likelihood, Coleman’s counsel

may testify that he still would have elicited this informa-

tion during Nank’s cross-examination. Finally, there may

have been no good reason for Coleman to challenge the

trial judge. In short, there is no reason why the examples

referred to by the majority could not be tested for harm-

less error in an evidentiary hearing. It may be that the

State would fail in its burden of proving harmlessness

beyond a reasonable doubt. Even so, the issue can and

should be explored.

The problem here is analogous to that in many cases

involving ineffective assistance of counsel claims. Such

claims are disfavored when brought on direct appeal

since “usually [they] cannot be advanced without the

development of facts outside the original record.” United

States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466

App. 31

U.S. 943 (1984) and 469 U.S. 863 (1984), citing United States

v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). For this reason,

ineffective assistance claims are usually brought in

habeas proceedings, see United States v. Pope, 841 F.2d 954,

958 (9th Cir. 1988), where an evidentiary hearing can be

used to explore “what counsel did, why it was done, and

what, if any, prejudice resulted.” Id. (citation omitted).

Similarly, whether the due process violation here was

harmless beyond a reasonable doubt can be resolved by

inquiring into Coleman’s counsel’s trial decisions at an

evidentiary hearing.

Tasco v. Butler, 835 F.2d 1120 (Sth Cir. 1988), also

provides a useful parallel to this case. Tasco allegedly had

received no notice of a recidivism charge filed against

him under Louisiana’s habitual offender statute until the

day of the sentence enhancement hearing. Like Coleman,

Tasco’s federal habeas petition had been denied without

an evidentiary hearing. Id. at 1122. The Fifth Circuit held

that this alleged denial of notice would constitute a due

process violation. Id. at 1123-24. The court then applied

Chapman’s harmless error doctrine to the violation, but

concluded that “[t]he record in this case leaves us in

doubt concerning whether the due process deprivation

affected the outcome of the sentence-enhancement pro-

ceeding.” Id. at 1124. Accordingly, the court reversed the

denial of Tasco’s petition and remanded to the district

court for an evidentiary hearing to determine “when in

fact Tasco and his attorney first received notice of the

recidivism charges,” and, if the notice was insufficient,

“whether the state has shown beyond a reasonable doubt

that [Tasco] suffered no prejudice as a result.” Id. Sim-

ilarly, 1 would order a remand here.

App. 32

Why, then, should we not remand for an evidentiary

hearing? The majority suggests that per se reversal is

appropriate. Rather than inquire into the reasons why the

record, in its present state, will not yield an answer to the

harmless-error inquiry, the majority exempts Coleman’s

claim from harmless-error review at all because of the

nature of the violation.

I view as distinguishable those cases in which the

Supreme Court has excepted particular constitutional

errors from harmless-error review because the “scope of

the violation . . . cannot be discerned from the record,

[and therefore] any inquiry into its effect on the outcome

of the case would be purely speculative.” Satterwhite v.

Texas, 108 S. Ct. 1792, 1797 (1988) (Satterwhite). The crucial

characteristics of these cases appear to be (1) the scope of

the violation cannot be determined from the record, and

therefore (2) the effect of the violation on the outcome of

the case cannot be determined. See id.

The cases usually included in this category are Hollo-

way v. Arkansas, 435 U.S. 475 (1978) (Holloway) (conflict of

interest in representation throughout entire proceeding),

Gideon v. Wainwright, 372 U.S. 335 (1963) (Gideon) (total

deprivation of counsel), and Tumey v. Ohio, 273 U.S. 510

(1927) (Tumey) (biased judge). See Satterwhite, 108 S. Ct. at

1797-98; Van Arsdall, 475 U.S. at 681-82. Before one can

evaluate the differences between Coleman’s due process

infringement and the constitutional violations in Hollo-

way, Gideon, and Tumey, however, it is necessary to under-

stand the precise nature of the infringement in this case.

App. 33

This case involves a novel type of due process claim.

In challenging the retroactive appiication of a sentencing

statute that resulted in his being resentenced to death,

Coleman essentially is claiming that he was deprived of

adequate notice. Maj. op. at 4699. Yet this case differs

from Marks v. United States, 430 U.S. 188 (1977) (Marks)

(fifth amendment due process clause), Rabe v. Washington,

405 U.S. 313 (1972) (per curiam) (Rabe) (fourteenth

amendment due process clause), Bouie v. City of Columbia,

378 U.S. 347 (1964) (Bouie) (same), and In re Oliver, 333

U.S. 257 (1948) (Oliver) (same). Those cases hold that the

due process clause guarantees the right to fair warning of

what conduct or actions are subject to criminal liability.

Marks, 430 U.S. at 191; Bouie, 378 U.S. at 354-55 (“When

a[n] . . . unforeseeable state-court construction of a crimi-

nal statute is applied retroactively to subject a person to

criminal liability for past conduct, the effect is to deprive

him of due process of law in the sense of fair warning

that his contemplated conduct constitutes a crime.”)

(emphasis added). Marks, Rabe, Bouie, and Oliver each

disallowed the retrospective application of “[a]n

unforeseeable judicial enlargement of a criminal statute.”

Marks, 430 U.S. at 192, quoting Bouie, 378 U.S. at 353. Here,

by contrast, there is no question that Coleman had ade-

quate notice of the conduct that constituted aggravated

kidnapping under Montana law. He also had adequate

notice that aggravated kidnapping carried the death pen-

alty under Montana law, though the state’s mandatory

provision was later struck down. See Maj. op. at 4686.

Coleman’s notice of the resentencing procedures was also

adequate to prepare for the resentencing hearing itself.

See Coleman v. Risley, 839 F.2d 434, 451-54, 460-61 (9th Cir.)

App. 34

(panel opinion), reh. en banc granted, 845 F.2d 884 (9th Cir.

1988). Thus, Coleman was deprived of adequate notice

only in the following, limited sense: by not knowing that

he would ultimately be subject to the 1977 sentencing

statute, he did not have adequate notice that his decisions

at trial might have an impact on his sentencing under the

new scheme. The only reasons these trial decisions could

possibly prejudice Coleman is the 1977 statute’s directive

that the sentencing judge consider any evidence, regard-

less of its content, which was admitted during the guilt

phase. See Mont. Code Ann. § 95-2206.7.

Thus, aside from one exception I will analyze later,

Coleman could have been prejudiced by the retrospective

application of the sentencing statute only insofar as his

lack of notice was actually reflected in the state trial record.

That is, only if-Coleman’s counsel introduced damaging

evidence into the record at trial could lack of notice have

prejudiced Coleman at the sentencing hearing. Any trial

decision resulting in the failure to introduce beneficial

evidence at trial could not possibly have prejudiced Cole-

man’s sentencing, because such evidence could have been

introduced at the sentencing hearing. See id.

Bearing this in mind, I will now apply the Satterwhite

analysis to consider whether this type of violation is one

(A) whose scope cannot be determined from the record,

and therefore (B) which has an effect on the case’s “out-

come” that cannot be determined beyond a reasonable

doubt. 108 S. Ct. at 1797.

Tumey, Gideon, and Holloway all involve violations

whose scope is pervasive and cannot be determined from

App. 35

the record. If a judge is biased as in Tumey, the bias will

infect all of the judge’s discretionary decisions made at

trial. Similarly, the total denial of counsel as in Gideon will

result in a record that bears little resemblance to the

record which would have been created with representa-

tion. In either case, it would be virtually impossible to

identify those portions of the record tainted by the viola-

tion. Moreover, there are other practical difficulties which

these cases present. If a judge is truly biased, it would be

fruitless to conduct an evidentiary hearing examining

what the judge would have done without the bias. Sim-

ilarly, where counsel has been denied, it may be impossi-

ble to know who the counsel would have been and what

effect he or she would have had on the trial.

Holloway presents a slightly different situation,

though it too is distinguishable from this case. In Hollo-

way, the Court held that whenever a trial court improp-

erly requires, over timely objection, an attorney to

undertake joint representation of codefendants with con-

flicting interests, the error requires automatic reversal.

435 U.S. at 489-91. In so holding, the Court wrote:

In the normal case where a harmless-error rule is

applied, the error occurs at trial and its scope is

readily identifiable. Accordingly, the reviewing court

can undertake with some confidence its relatively

narrow task of assessing the likelihood that the error

materially affected the deliberations of the jury. But

in a case of joint representation of conflicting inter-

ests the evil — it bears repeating - is in what the

advocate finds himself compelled to refrain from

doing, not only at trial but also as to possible pretrial

plea negotiations and in the sentencing process. It

may be possible in some cases to identify from the

record the prejudice resulting from an attorney’s fail-

ure to undertake certain trial tasks, but even with a

App. 36

record of the sentencing hearing available it would

be difficult to judge intelligently the impact of a

conflict on the attorney’s representation of a client.

And to assess the impact of a conflict of interests on

the attorney’s options, tactics, and decisions in plea

negotiations would be virtually impossible.

Id. at 490-91 (citations omitted) (emphasis in original).

Thus, Holloway turned in part on the fact that the conflict

of interest would likely have an effect on unrecorded

proceedings, such as plea negotiations. This is simply not

the case here. Coleman could only have been prejudiced

by the retrospective application of Montana’s sentencing

insofar as his lack of notice was actually reflected in the

state trial court record.

In a more general sense, the error here had a more

circumscribed and discernible impact on the record than

the violations in Holloway, Tumey; and Gideon. The set of

incentives faced by Coleman’s counsel in the guilt phase

roughly corresponded to those presented in the sentenc-

ing phase of the later-enacted sentencing scheme. His

lack of knowledge regarding the new sentencing pro-

cedure could only have prejudiced his client if it resulted

in his putting into the record evidence which would have

either (1) supported the finding of an aggravating cir-

cumstance, or (2) weighed against the finding of a mit-

igating circumstance. See Mont. Code Ann. § 95-2206.10.

Evidence favorable to Coleman which was omitted by

counsel from the ‘rial record could always be submitted

later at the sentencing hearing. Thus, the scope of the

violation here was more circumscribed and easier to dis-

cern from the record.

cma a aaa

App. 37

There is only one exception in which the state trial

record would not be adequate: the majority’s contention

that Coleman would have challenged the trial judge had

he known the trial judge would have the discretion to

impose the death penalty. But if Coleman’s counsel had

serious doubts about the trial judge’s fairness or impar-

tiality, then he likely would have requested substitution

anyway. The majority argues, however, that “[i]t is one

thing to accept a judge for the purpose of conducting a

fair trial, and quite another to accept that judge .. . to

become the sole decisionmaker on the question of life or

death.” Maj. op. at 4698 (emphasis added). This argument

overestimates both the amount of discretion accorded the

sentencing judge under Montana law and the willingness

of Coleman’s counsel to endure a biased judge for the

trial but not the sentencing phase. Furthermore, Coleman

himself has never suggested to this court that he would

have challenged the trial judge. Rather, this hypothetical

scenario is a product of the majority’s quest to conjure up

ways in which Coleman might have been harmed. In my

view, this contention’s origin provides all the more rea-

son why it should be tested at an evidentiary hearing.

Such a hearing would supplement the trial record and

provide an adequate basis for harmless error analysis of

this contention. Just because Coleman’s counsel could

have challenged the trial judge without cause, see maj. op.

at 4697-98, does not necessarily mean that we should

automatically assume he would have done so, or that,

had he done so, the outcome necessarily would have been

different.

App. 38

It might be argued that where the “outcome” is a

death sentence, harmless error analysis is never applica-

ble. The Supreme Court has rejected this view, and has

repeatedly applied harmless error analysis to capital sen-

tencing proceedings. E.g., Satterwhite, 108 S. Ct. at

1797-98; Hitchcock v. Dugger, 481 U.S. 393, 399 (1987)

(reversing death sentence because there was constitu-

tional error and state did not show error was harmless);

Skipper v. South Carolina, 476 U.S. 1, 7-9 (1986) (Skipper)

(implicitly rejecting idea in concluding that error was not

harmless). In Satterwhite, the Court held that “a reviewing

court can make an intelligent judgment about whether

the erroneous admission of psychiatric testimony might

have affected a capital sentencing jury.” 108 S. Ct. at 1798.

By contrast, Skipper evaluated the harmfulness of the

exclusion of particular mitigating evidence from the capi-

tal sentencing phase. 476 US. at 7-8.

Turning to whether the “outcome” in this case can be

determined beyond a reasonable doubt, I believe that

Montana’s sentencing procedure channels the sentencing

judge’s discretion in such a way that a reviewing court

can evaluate the effect of Coleman’s due process violation

on the sentence imposed. The sentencing determination

under Montana law is based on the presence or absence

of statutorily defined mitigating and aggravating circum-

stances. Mont. Code Ann. § 95-2206.8-.9. Moreover, if the

death penalty is imposed, the sentencing judge must

make specific written findings of fact regarding the pres-

ence or absence of each of the aggravating and mitigating

circumstances. Mont. Code Ann. § 95-2206.11. These find-

ings must be “substantiated by the records of the trial

App. 39

and the sentencing proceeding.” Id. Under this regime,

the impact of the error is more readily ascertainable than

when the reviewing court must judge the error’s impact

on the jury’s final, unexplained decision of guilty or

innocent. Similarly, the impact under the Montana capital

sentencing procedure is more easily determined than

under proceedings in which a jury makes the capital

sentencing determination without making specific writ-

ten findings. See, e.g., Satterwhite, 108 S. Ct. at 1795,

1797-98 (applying harmless error review where capital

sentencing jury answers two statutorily prescribed ques-

tions); Skipper, 476 U.S. at 2-3, 7-9 (implicitly applying

harmless error review where capital sentencing jury

returns final, unexplained decision whether to execute). If

harmless error review could be applied under the

schemes in Satterwhite and Skipper, then a fortiori we could

apply it to the Montana procedure.

Moreover, this approach makes sense for one addi-

tional reason which is worth pointing out. Treating ex-

post-facto-type due process violations as requiring auto-

matic reversal would make little sense in light of ex post

facto jurisprudence. Under that body of law, neither a

procedural nor an ameliorative change in the law is

actionable. Dobbert v. Florida, 432 U.S. 282, 292-97 (1977).

Here, the change in the Montana law appears to have

been both procedural and ameliorative. The determina-

tion under the ex post facto clause whether the challenged

law is ameliorative is the functional equivalent of a harm-

less error analysis. Thus, under the ex post facto clause, as

part of the inquiry into whether the right has been vio-

lated, courts examine whether the claimant was disad-

vantaged or harmed by the change in law. See 3 W.

— “

App. 40

LaFave & J. Israel, Criminal Procedure § 26.6 at 59 (1988

Supp.) (describing category of cases “characterized by a

finding of prejudicial impact in the determination that

there was a constitutional violation” and stating that

“[w]here a court has made such a finding . . . (as where it

concludes that counsel’s representation was ineffective

under the Strickland [v. Washington, 466 U.S. 668 (1984)]

standard, or that nondisclosed exculpatory evidence was

material under the [United States v. Bagley, 473 U.S. 667

(1985)] standard), then there is no reason to superimpose

the Chapman standard to determine whether a new trial is

necessary”). To allow litigants to repackage their ex post

facto challenges to ameliorative laws as due process

claims requiring per se reversal would in effect eliminate

a significant limitation in ex post facto doctrine.

Ill

For the foregoing reasons, I would hold that the due

process violation in this case is subject to harmless error

analysis. 1 express no opinion whether the error was in

fact harmless beyond a reasonable doubt. I would

remand to the district court for an evidentiary hearing.

REINHARDT, Circuit Judge, concurring:

Today, more than thirteen years after a state court

levied an unconstitutional death sentence against Dewey

Coleman, a federal court has invalidated that punish-

ment. While the majority properly considers only one of

Montana’s unlawful acts, the fact remains that the state’s

prosecutors and courts committed a series of errors that

are extraordinary both for their breadth and their

App. 41

egreg.ousness.! The history of Montana’s unrelenting

effort to hang Dewey Coleman illustrates not only the

failings of our legal system but also its saving graces. Ina

more perfect world, Dewey Coieman would not have

lived under a death sentence for over a decade, and

protracted litigation would not have sapped the limited

resources of state and federal courts. In a less perfect

world, a court system that had grown impatient with his

numerous appeals would already have overseen Dewey

Coleman’s execution.

I write separately today not to repeat any of the

arguments thoughtfully presented for the court by Judge

Thompson. I concur without reservation in his opinion. I

add _ my additional comments only in order to point out

that the case of Dewey Coleman illustrates the fact that

curtailing the federal habeas corpus procedures in death

penalty cases would seriously undermine our system of

justice and our commitment to constitutional values.

In 1975, Coleman was sentenced to death for the

crime of aggravated kidnapping. Constitutional error rid-

dled the proceedings.? Despite glaring deficiencies, it was

1 See Coleman v. Risley, 839 F.2d 549, 615 (9th Cir. 1988)

(Reinhardt, J., dissenting) (discussing those errors in detail).

2 The constitutional problems can be roughly divided into

four categories of error: the Equal Protection Clause, sentenc-

ing procedures, due process, and cruel and unusual punish-

ment. First, Montana’s decision to refuse plea bargaining and

(Continued on following page)

App. 42

not until after thirteen years and thirteen court proceed-

ings that we finally granted relief.* Dewey Coleman’s

(Continued from previous page)

seek a death sentence raises serious questions of racial bias and

discriminatory intent concerning which Coleman has been

unable to obtain an evidentiary hearing. While the State

offered Coleman’s white codefendant, a hardened criminal, a

life sentence, Montana refused to negotiate in good-faith with

Coleman - who is black — despite his lack of a criminal record

or a violent past, the difficulty in prosecuting a case built

almost entirely on the testimony of a confessed murderer, and

substantial doubts as to his guilt. Second, during the capital

sentencing phase, Coleman was denied an opportunity to pre-

sent oral argument. The trial court, by formulating, writing,

and distributing its final order prior to the sentencing hearing,

abdicated its constitutional duty to provide the defendant a

fair hearing. The trial court also unconstitutionally based Cole-

man’s sentence on an unadjudicated offense. Third, Coleman

was forced, by statute, to carry the burden of persuasion on the

existence of mitigating circumstances and on the issue of

whether these mitigating circumstances outweighed the aggra-

vating circumstances, turning the normal method of proof on

its head. Fourth, Coleman was ultimately sentenced to death

under a new death penalty statute that was passed after he had

been tried, convicted, and sentenced under an unconstitutional

statute. See Maj. op. passim. Finally, an adjudication of guilt

based only upon the dubious and self-interested testimony of a

confessed murderer and the rninimal physical evidence present

here is constitutionally insufficient to support a capital sen-

tence. See Gardner v. Florida, 430 U.S. 349 (1977) (plurality

opinion). In sum, serious constitutional error affected aimost

every aspect of this case, from the passage of the initial MOon-

tana death penalty statute to the imposition of the current

death sentence.

3 Coleman was first convicted and sentenced to death by

the Sixteenth District Court of Montana in 1975. The Montana

Supreme Court vacated that sentence three years later. State v.

(Continued on following page)

ae ne

App. 43

experience is not atypical for a death row inmate seeking

constitutional relief. Many prisoners spend more than a

decade on death row before federal courts vindicate their

years of litigation. See infra § III. These peripatetic pas-

sages through our legal system have raised serious ques-

tions about both habeas corpus and the practicality of the

death penalty. Critics of the former have argued that the

extended process undermines judicial finality and

threatens the efficient functioning of the federal courts.4

Some have even suggested that the writ be streamlined or

abolished.

(Continued from previous page)

Coleman, 579 P.2d 732 (1978) (Coleman I). On remand, Coleman

was again sentenced to death. The Montana Supreme Court

affirmed. State v. Coleman, 605 P.2d 1000 (1979) (Coleman II).

After the United States Supreme Court’s decision in Sandstrom

v. Montana, 442 U.S. 510 (1979), the Montana Supreme Court

reheard argument and again affirmed. See Coleman II. The

United States Supreme Court denied certiorari. Coleman v.

Montana, 446 U.S. 970 (1980). In early 1981, the Sixteenth

District Court of Montana refused post-conviction relief. The

Montana Supreme Court affirmed. Coleman v. State, 633 P.2d

624 (1981) (Coleman III). The United States Supreme Court

denied certiorari. Coleman v. Montana, 455 U.S. 983 (1982).

Thirteen months later, Montana’s highest court rejected Cole-

man’s state habeas corpus petition. Coleman v. Risley, 663 P.2d

1154 (1983). On August 9, 1985, the United States District Court

denied Coleman’s petition of habeas corpus. A divided three

judge panel of this circuit affirmed. Coleman v. Risley, 839 F.2d

434 (9th Cir. 1988).

4 The genesis of this hostility towards habeas appeals

stems in part from a widely shared misperception of a habeas

explosion. See Smith, Title 28, § 2255 of the U.S. Code, 40 Notre

Dame Law. 171, 175-76 (1964) (listing filing statistics to demon-

strate ‘abuse’ of the writ). Statistics do not support this picture

(Continued on following page)

App. 44

I do not think that... [the Supreme

Court] . . . can continue to evade some responsibility

for this mockery of our criminal justice system. Per-

haps out of a desire to avoid even the possibility of a

“Bloody Assizes,” this Court and the lower federal

courts have converted the constitutional limits upon

imposition of the death penalty by the States and the

(Continued from previous page)

of a beleaguered federal judiciary. Since separate habeas statis-

tics were first compiled in 1971, the number of claims per

prisoner has steadily declined. Although growth in the overall

prison population has off-set this per capita decline, there has

also been a steady growth in the number of federal district

court judges and magistrates. Over a long-term perspective —

since 1944 — the burden on the federal courts of successive

habeas petitions has increased, but “the rhetoric of the boom

has outlasted the reality. . . .prisoner’s habeas petitions have

declined, and that decline began in the early 1970's, long

before the major cases and rules restructuring habeas reliet

were in place.” Resnick, Tiers, 57 So. Cal.L.Rev. 837,950 (1984).

In 1971, at their peak, habeas petitions occupied over 12% of

the federal docket; that number dwindled to 5% twelve years

later. In addition, while 6.1% of all civil cases reach trial, only

2.4% of habeas cases proceed to the trial stage. Id. at 947, citing

Annuai Report of the Director of the Administrative Office of

the United States Courts 60 (1982). Thus, the evidence does not

support the portrait of a federal judicial system tottering under

the weight of successive habeas papers. On the other hand,

death penalty habeas cases raise questions of a different magni-

tude. The severity of capital punishment mandates greater

scrutiny of the merits of death row appeals. Since questions of

death penalty law often involve complex factual and doctrinal

inquiries, death penalty petitions — unlike many other habeas

cases — are more likely to survive motions to dismiss or other

summary motions. Consequently, these complex questions,

fueled by recent expansions in the death penalty, demand a

significant amount of the federal courts’ attention. See infra

§ IV.

App. 45

Federal Government into arcane niceties which paral-

lel the equity court practices described in Charles

Dickens’ “Bleak House”.

Coleman v. Balkcom, 451 U.S. 949, 958 (1981) (Rehnquist, J.,

dissenting from denial of certiorari). I agree with Chief

Justice Rehnquist that there are lessons to be gleaned

from the federal habeas experience in death penalty

cases; but because I believe that the substantial constitu-

tional issues raised by defendants such as Dewey Cole-

man are much more than “arcane niceties”, I would

conclude that the mockery of our criminal justice system

lies not in repetitive federal review but in the persistent

disregard by our courts of fundamental constitutional

rights.

Il.

No analysis of the habeas process is complete with-

out consideration of its historical background. The story

of the Writ of Habeas Corpus begins with the birth of the

English Common Law. See C. Antieau, The Practice of

Extraordinary Remedies 1 (1987). The Great Writ “is per-

haps the most important writ known to the constitutional

law of England, affording as it does a swift and impera-

tive remedy in all cases of illegal restraint or confine-

ment.” Secretary of State for Home Affairs v. O’Brien, 1923

A.C. 603, 609 (H.L.). Its lineage in American jurispru-

dence is no less august, extending from the earliest days

of colonial law through the Constitution> to modern

5 “The privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in cases of Rebellion or Invasion the

public Safety may require it.” Art. I, § 9, cl. 2.

App. 46

times. Although in form simply a method of procedure,

the writ of habeas corpus has long stood as a bulwark

against arbitrary and illegal imprisonment; “its history is

inextricably intertwined with the growth of fundamental

rights of personal liberty.” Fay v. Noia, 372 U.S. 391, 401

(1963). In many ways, the history of the Great Writ is the

history of constitutional liberty in this country.

The historical role of federal habeas review of state

proceedings has been more limited. The contours of fed-

eral habeas jurisdiction were sketched in the first days of

the new country but were not significantly expanded

until the Judiciary Act of 1867.6 The reach of the writ into

state prisons has varied with the ebb and flow of

Supreme Court jurisprudence. The Noia Court extended

the Great Writ deep into state court adjudication, but

recent cases have invoked procedural doctrine to bar

certain claims in federal court. See, e.g., Wainwright v.

Sykes, 433 U.S. 72 (1977) (adopting the cause and preju-

dice test for unlitigated state claims). These erosions of

the Great Writ, however, have not robbed it of its essen-

tial value. “If the States withhold effective remedy, the

federal courts have the power and the duty to provide it.”

Noia, 372 U.S. at 441. Habeas corpus process over state

6 The extent of this nineteenth century expansion has been

hotly debated by courts, compare Noia, 372 U.S. at 415-19 with

Stone v. Powell, 428 U.S. 465 (1976), and by academics, compare

Peller, In Defense of Federal Habeas Corpus Litigation, 16 Harv.

C.R. - C.L. L. Rev. (1982) (extended to the limits of the Consti-

tution) with Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963) (limited to

attacks on state court jurisdiction).

App. 47

incarceration still stands as a basic safeguard of our

liberties.”

Ill.

While the historical role of the writ of habeas corpus

illustrates its significance in American law, modern prac-

tice underscores the need for its continued vitality.

Dewey Coleman’s passage through the Montana judicial

system symbolizes a problem plaguing death penalty liti-

gation generally. Between 1976 and 1983, of the 41 death

penalty cases decided by the Courts of Appeals on the

merits, the prisoner prevailed 30 times, or almost 75% of

the time. Barefoot v. Estelle, 463 U.S. 880, 915 (1983) (Mar-

shall, J., dissenting). “This record establishes beyond any

doubt that a very large proportion of federal habeas

corpus appeals by prisoners on death row are mer-

itorious, even though they present claims that have been

unsuccessful in the state courts, that this Court in its

discretion has decided not to review on certiorari, and

that a federal district judge has rejected.” Id. To protect

the rights of capital defendants, the Supreme Court has

erected a complex structure of procedural and substan-

tive rules. However, these protections, often casually

treated by state courts, would be rendered virtually

meaningless if federal habeas were to disappear. The

statistics show convincingly and the experience of Dewey

Coleman illustrates that any curtailment of the writ of

7 Some of the most influential civil rights decisions of our

time have resulted from habeas corpus petitions filed by state

prisoners. See e.g., Gideon v. Wainwright, 372 U.S. 335 (1963);

Malloy v. Hogan, 378 U.S. 1 (1964)

App. 48

habeas corpus would be tantamount to federal collabora-

tion in a scheme to deny death row inmates their

constitutional rights.

Critics have charged that the high rate of successful

habeas appeals signals not an inability of state courts to

adjudicate constitutional rights but rather heightened

sensitivity of federal courts to death row inmates. While

it is true that the federal courts scrutinize death penalty

appeals more closely than other Cases, the judiciary is

doing nothing more than following established constitu-

tional doctrine. “Death, in its finality, differs more from

life imprisonment than a 100-year prison term differs

from one of only a year or two. Because of that qualitative

difference, there is a corresponding difference in the need

for reliability in the determination that death is the

appropriate punishment in a specific case.” Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (plurality opin-

ion). I find it troubling that the most determined attacks

on the habeas process have come in an area of litigation

where the stakes are so high, and the cost of error equals

a man’s life.

It is difficult to disagree with the Chief Justice that

the results of death penalty litigation threaten to make a

mockery of the criminal justice system. However, it is not

frivolous appeals or complicitous judges that shake confi-

dence in fair adjudication; rather, “it is difficult to avoid

the suspicion that our criminal justice system impeaches

its own integrity by producing reversible errors in

between half and three-quarters of its [death penalty]

cases.” Burt, Disorder in the Court: The Death Penalty and

the Constitution, 85 Mich. L. Rev. 1741, 1793 (1987). When

App. 49

state court judges ignore fundamental principles of con-

stitutional law,§ the basic premises of the judicial system

are shaken; the vast array of errors encourages specula-

tion about the impartiality and detachment necessary to

fair adjudication. This case is a prime example. The Mon-

tana Supreme Court had a number of opportunities to

correct what amounts to a primer of constitutional error:

race and equal protection, due process, cruel and unusual

punishment. Yet, the majority of the court failed to do so

and experienced little difficulty in rejecting Coleman’s

claims.? Given the unwillingness or inability of some

8 The high state court error rate stems from several

sources. First, despite Justice Powell’s protestations to the con-

trary, see Stone v. Powell, 428 U.S. at 493 n.35, experience

suggests that federal courts stand in a better position to adjudi-

cate constitutional rights. This may be a function of greater

receptivity of federal courts to Supreme Court dictates, insula-

tion from majoritarian pressures, and even superior technical

competence. See generally Neuborne, The Myth of Parity, 90

Harv. L. Rev. 1105 (1977). The recent experience of California’s

Supreme Court forcefully shows that the system of direct elec-

tion of judges can impose public opinion upon ‘politically-

neutral’ constitutional interpretations. Second, mere redun-

dance of federal review of state imprisonment poses a formida-

ble barrier to high error rates. Each successive decision

diminishes the possibility of unconstitutional executions. For

the mathematics of redundancy, see Cover & Aleinikoff, Dialec-

tical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035,

1045 (1977).

9 In Coleman I, the court, squarely faced with a recent

controlling United States Supreme Court precedent, was com-

pelled to correct an earlier constitutional violation in the initial

sentence. 579 P.2d at 741-42. Thereafter, the Montana Supreme

(Continued on following page)

App. 50

state courts to vindicate federal constitutional rights,

habeas review of their judgments remains a necessary, as

well as desirable, element of our federal system.

IV.

While disagreements over the death penalty habeas

process continue to fester, both proponents and oppo-

nents of the death penalty agree on at least one issue, that

death penalty litigation threatens effective administration

of the law. Unlike many habeas cases which can be dis-

posed of on the pleadings, see supra n.4, the gravity of

capital cases coupled with the startling high rate of state

error mandates intensive federal scrutiny. Dewey Cole-

man’s case is again illustrative. Over seven years has

passed since a habeas petition was docketed with the

federal district court for Montana; both a three judge and

an en banc panel of this court ultimately subjected his

claims to intense review.'° This single case tied up signifi-

cant federal resources over the last seven years, and there

are two hundred more potential death penalty litigants

living on death row in California alone. Across the coun-

try, the number of potential petitioners has grown rap-

idly. At the beginning of 1985, there were 1420 inmates on

(Continued from previous page)

Court had three opportunities to correct the fundamental con-

stitutional errors raised in the habeas petition. In all three

instances, the majority incorrectly denied relief.

10 The majority and dissenting opinions of the three-judge

panel cover 90 pages in the federal reporter. 839 F.2d at

434-523. While I am not certain that mere volume is a perfect

indicia of the extent of judicial scrutiny, I suspect that there is,

on some occasions at least, a basic :orrelation.

App. 51

death row in the United States; by the end of the year, 171

prisoners had been added to the executioner’s ledger. By

March, 1987, 1,874 inmetes languished on death row, an

increase of approximately 32% over a 2'/2 year period. See

Bureau of Justice Statistics, U.S. Department of Justice,

Sourcebook of Criminal Justice Statistics 1986 at 428-29

(1987). This increase in the number of death row inmates

will be reflected in the number of habeas petitions. In

fiscal year (FY) 1988, the number of new death penalty

cases entering the federal court system is estimated to be

approximately 300. In FY 1989, an estimated 345 more

death row inmates will file habeas petitions in the federal

courts. In FY 1990, we can expect another 425 habeas

petitions to flood the district courts. See generally Span-

genberg Group, Time and Expense Analysis in Post-Con-.

viction Death Penalty Cases (1988); Spangenberg Group,

Caseload and Cost Projections for Federal Habeas Corpus

Death Penalty Cases in FY 1988 and FY 1989 (1988).1!

Because of Caiifornia’s frequent invocation of the death

penalty, the Ninth Circuit will bear a substantial part of

the burden. An estimated 76 new death penalty cases will

confront this court in 1989, and the number of the new

entrants will rise to approximately 95 in 1990. Id. If we

properly review these habeas petitions, we will be unable

to handle our ordinary calender of civil and criminal

cases in an efficient and orderly manner.

11 The Spangenberg Group’s projections of habeas corpus

petitions in the federal court system derive from a 50 state

survey of Attorney General’s Offices and Public Defender’s

statistics. The estimates closely match the figures compiled by

the NAACP.

App. 52

Since it takes an average of over seven years from the

date of sentencing to properly adjudicate a death penalty

claim, collateral attacks on capital sentences will create a

massive backlog in the federal system. Given the nature

of the punishment and the high rate of state court errors,

the federal courts must continue to scrutinize these cases

with utmost care. But the costs of the fair and accurate

adjudication mandated by the Constitution are extremely

high; the limited capacities of the district and circuit

courts will be challenged, and the ability of the federal

system to handle the pressing business of other litigants

will be diminished. As long as capital punishment is

condoned in our country, extensive review of the death

penaity must remain a priority of the federal courts, but,

as the figures indicate, this mandatory review will exact a

price in the impaired administration of our civil and

criminal dockets.

In 1975, Dewey Coleman was sentenced to death;

while state and federal courts debated the merits of his

claim, he languished on death row for over thirteen

years. A great deal of time, effort, and money, both public

and private, has been expended, but the fact that this case

has finally been adjudicated properly makes the process

worthwhile.!2 I realize that there are other values — such

12 | am confident that the death penalty litigation in Cole-

man’s case has now drawn to a close. Although the majority

opinion properly does not reach the hypothetical question

whether a new death sentence could be imposed if Coleman

(Continued on following page)

App. 53

as finality — that are important to the judicial process, but

when the stakes are a man’s life, these values pale in

comparison to accurate and fair adjudication. If cumber-

some administration of the death penalty threatens effi-

cient handling of all other civil and criminal matters, and

some changes must therefore be made with respect to

death penalty cases, the answer lies not in restricting

legitimate appeals but in rethinking the social utility of

the death penalty. Until legislatures reassess the wisdom

of capital punishment’, exacting scrutiny of capital cases

(Continued from previous page)

sought and obtained a new trial and was again convicted, |

think the answer to the question is plain. As Judge Thompson

eloquently writes for the en banc court, “Because Coleman had

no reason to suspect that his decisions at trial would come

back to haunt him at a sentencing hearing, we must conclude

that he was denied due process when he was resentenced to

death under Montana’s revised death penalty statute.” Major-

ity Op. at 4699. The reasoning is necessarily applicable to any

future death sentence imposed on Coleman for the crimes on

which he has heretofore been tried. The record of the first trial

can never be undone. Any future trial decisions Coleman

would make would inevitably be affected by the trial record

his counsel has already created.

13 Among Western nations, retention of the death penalty

is a rarity. In Western Europe, eight countries nominally keep

death penalty statutes on the books. In five of those nations -

Italy, Malta, Spain, Switzerland, and England - the laws permit

capital sentences only for exceptional crimcs, such as wartime

treason. The other three — Belgium, Greece, and Ireland — retain

the death penalty for ordinary homicide. But not one of the

eight countries has executed a prisoner within the last decade.

See Amnesty International, Death Penalty List of Abolitionist

and Retentionist Countries (1988). Clearly, the process of reas-

sessment has taken a different turn in other developed

societies.

cease tl

IT tte

App. 54

will continue to be the duty of the federal courts. And as

long as state courts unconstitutionally sentence defen-

dants to death, the only choice allowed by our laws is for

the federal courts to put their judgments to the highest

tests of the Constitution.'4

TROTT, Circuit Judge, joined by Circuit Judge

THOMPSON, concurring:

—_

Peggy Lee Harstad was viciously murdered on July 4,

1974. That this case is still being litigated over fourteen

years later does not speak well of our system of justice.

The prolongation of such a matter can only have the

effect of preventing her family, friends, and community

from coming to peace with this horrendous event-if that

is possible. Litigants, too, deserve speedier results. All of

us responsible for the anemic pace of justice should

reflect on every ramification of this delay and rededicate

ourselves to doing everything within our power to make

sure that difficult and important decisions that are com-

mitted to us are made as expeditiously as possible. As

Chief Judge Clark said in Brogdon v. Butler, 824 F.2d 338,

343 (5th Cir. 1987) (Clark, C.J., concurring), “Justice

requires that in each instance capital punishment be

imposed with maximum assurance of scrupulous legality.

14 It would, of course, be inappropriate to comment here

on the recently enacted federal legislation which provides for

the imposition of the death penalty in certain cases. See Title

VII of the Anti-Drug Abuse Act, P.L. 100-690. No case has yet

been decided under that statute.

App. 55

But, justice equally demands an assurance that such pun-

ishment be imposed when the minds of men still retain

memory of the crime committed.”

I agree with Judge Reinhardt’s assessment of the

enormous and taxing death penalty workload that looms

on the horizon. I respectfully disagree, however, that

workload is a reason to rethink the social utility of the

death penalty. Where it is the law, it represents the peo-

ple’s views expressed through democratic institutions

regarding the appropriate punishment for the most hei-

nous of criminal acts. Rather than surrender to the chal-

lenge of handling these difficult cases with judicious

alacrity, I find it preferable to expand or streamline the

system to handle the load.

I also must take issue with my colleague’s statement

that Montana’s prosecutors and courts necessarily com-

mitted “a series of errors that are extraordinary for their

breadth and egregiousness.” It is useful to put this case in

context to remember that Coleman at one point tried to

plead guilty while simultaneously proclaiming he was

the innocent victim of racial bias. Then, after the adminis-

tration of “truth serum,” a drug known on occasion to

produce unreliable results, his attorney abruptly indi-

cated Coleman was prepared to admit to his part in the

kidnap, rape, and murder. With this series of events in

mind, it is not appropriate to reject summarily a state

prosecutor’s explanation for his reluctance to accept a

plea of guilty from a man who first said he was innocent,

then in an abrupt, about-face apparently said he was

guilty (after being given sodium amytal), and finally

went to trial on the theory that he was blameless. Many

App. 56

respected trial judges might well have declined to accept

such a plea because of its obvious defects.

Had Montana accepted either of Coleman’s pleas, it

is clear beyond cavil that Coleman would have eventually

mounted a collateral attack against his conviction, claim-

ing an innocent black man under the influence of drugs

had been coerced into pleading guilty and sent to jail for

life for a crime he did not commit. Had he been success-

ful in invalidating such a plea, Montana would have had

to try Coleman years later with evidence that might have

deteriorated beyond resurrection. Had Nank died or

escaped in the interim, Montana’s case might have been

nonexistent, and Coleman might have escaped trial alto-

gether. This would have been unacceptable. It is therefore

not beyond understanding that the State refused to plea

bargain and opted instead to go to trial.

Montana was under no obligation to plea bargain at

all. See Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct.

837, 846, 51 L.Ed.2d 30 (1977). Also, a plea tendered

pursuant to North Carolina v. Alford, 400 U.S. 37 (1970)

will not stand-nor should it-without a strong factual

basis and a clear showing that it was the product of a free

will. Montana’s Hobson’s choice under these difficult

circumstances to put its case before a jury, therefore, is

hardly conclusive grounds for castigation. As the

Supreme Court noted in Singer v. United States, 380 U.S.

24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), our

Constitution regards a trial by jury as the best way to

produce a fair result. The cruel and savage facts in this

case also make it evident that Montana’s selection of

capital punishment falls short of shocking a reasonable

App. 57

person’s conscience. See Burger v. Kemp, 107 S.Ct. 3114

(1987).

I concur generally in Judge Thompson’s analysis of

the due process problem in this case, but only as it relates

to the issue of Coleman’s present sentence. Because of the

procedures in place at the time of the commencement of

Coleman’s trial in October 1975, his counsel was required

to make important tactical decisions without being able to

gauge their impact on a nonexistent post-conviction

death penalty hearing. Anyone familiar with death pen-

alty cases knows the issues confronting defense counsel

highlighted by Judge Thompson are real. This is not a

matter of speculation. The law in Montana had not yet

| provided for a separate hearing on the issue of punish-

| ment and did not do so until 1977. It is for this reason

| that Coleman’s sentence must be reversed.

Judge Wallace in his concurring and dissenting opin-

ion makes a very strong case for an evidentiary hearing

| on the issue of whether the due process violation was

harmless beyond a reasonable doubt. Were it not for the

fact that Coleman’s counsel himself brought Nank and

! Coleman’s involvement in a robbery to the attention of

the jury, I might agree. But this makes it virtually certain

in my judgment that the error cannot be said to have been

harmless.beyond a reasonable doubt.

ct Aone et aes

In one sense, this case is a victim of the turbulence

generated in 1972 by Furman. New procedural guidelines

for the administration of capital punishment were man-

dated. Virtually every state where capital punishment

was on the books, including Montana, had to amend its

laws to conform to the new rules. This took time. The

aaa

App. 58

choices were difficult, the drafting complex. The Supreme

Court provided little guidance. Many cases, including

this one, suffered as a consequence. That the path is

difficult, however, is not sufficient reason to abandon a

constitutional avenue chosen by the people. As an ancient

Greek philosopher once said, “It is a painful thing to look

at your own trouble and know that you yourself and no

one else had made it.” Sophocles, Ajax (c.447 B.C.)(John

Moore trans.).

ALARCON, Circuit Judge, concerning in part and dis-

senting in part:

I concur in that portion of the majority’s opinion that

holds that the record does not support Mr. Dewey Cole-

man’s Claim of a violation of his right to an impartial jury

at the guilt phrase of his trial. I dissent from the major-

ity’s conclusion that Mr. Coleman’s claim, that he was

selected for prosecution and convicted solely because he

is a black man, need not be resolved in this appeal. If Mr.

Coleman was selected for prosecution and convicted in

violation of his right to equal protection, any question

concerning the validity of the punishment later imposed

by the sentencing court would clearly be moot. The

majority has not explained why it determined that it was

required to reach Mr. Coleman’s contention that the jury

that convicted him was improperly selected while, at the

same time, apparently concluding that it was unnecessary

to decide the remainder of his constitutional challenges to

the guilt phase of the trial.

App. 59

Mr. Coleman, a black man, has asked this court to

order the district court to grant him an evidentiary hear-

ing so that he may offer evidence in support of his

contention that he was invidiously subjected to selective

prosecution, represented by ineffective counsel, and con-

victed of three crimes based upon legally insufficient

evidence, notwithstanding his innocence, in violation of

his federal constitutional rights. In a brief and enigmatic

footnote, the majority has expressly declined to review

the merits of these serious constitutional challenges,

which, if true, should entitle him to a new trial if not

immediate freedom from further incarceration. The

majority appears to have ignored the Supreme Court’s

instruction that in considering a capital case “the severity

of the sentence mandates careful scrutiny in the review of

any colorable claim of error.” Zant v. Stephens, 462 U.S. 862,

885 (1983)(emphasis added). Because I believe that the

failure of the majority to determine the merits of each of

Mr. Coleman’s allegations of grave constitutional error

concerning the guilt phase of his trial may result in the

continued confinement of a state prisoner - who may be

innocent — for the rest of his life, I cannot join in the

majority’s advisory opinion concerning the validity of the

punishment imposed for the commission of one of these

crimes.

il °

Over thirteen years ago, Mr. Coleman was convicted

by a Montana jury of deliberate homicide, aggravated

kidnapping, and sexual intercourse without consent, with

App. 60

bodily injury (forcible rape). He is presently serving a

sentence of 100 years for deliberate homicide and a con-

secutive sentence of 20 years for forcible rape. Coleman II,

185 Mont. 299, 605 P.2d 1000,1007 (1979). He also received

a sentence of death for the crime of aggravated

kidnapping.

Mr. Coleman claims that he is innocent and was

selected for prosecution and convicted solely because he

is black. The Montana courts refused to grant Mr. Cole-

man an opportunity to prove that he is the victim of

selective prosecution and other serious constitutional vio-

lations which if true, would compel reversal of his con-

victions and’ the restoration of his freedom. Having

exhausted his state remedies, Mr. Coleman exercised his

rights under 18 U.S.C. § 2254 to petition the federal courts

to hear his evidence that he was selected for prosecution

and convicted solely because he is a black man.

The district court dismissed Mr. Coleman’s petition

without a hearing. A three-judge panel of this court heard

Mr. Coleman’s appeal from the denial of his petition for a

writ of habeas corpus. Two of the judges concluded that

the record failed to support Mr. Coleman’s contention

that “he was tried, convicted, and sentenced to death as a

result of pervasive racial discrimination.” Coleman v. Ris-

ley, 839 F2d 434, 450 (9th Cir. 1988). Our dissenting

colleague was of the view that Mr.Coleman was “entitled

at the least, to a full and fair hearing on [the equal

protection claim] in the district court.” Id. at 482. In a

subsequent passage, the dissent argued that “where the

defendant establishes a prima facie case of racial discrim-

ination, we have an obligation to conduct a hearing and

probe the motives of the prosecution.” Id. at 483.

App. 61

Mr. Coleman petitioned for a rehearing and sug-

gested that such reconsideration should be conducted by

an en banc panel of this court. He again argued that the

record of the state court proceedings amply demonstrated

that he was entitled to an evidentiary hearing to prove

that he was selected for prosecution and convicted

because he is black. We granted rehearing en banc.

In its opinion, the en banc majority has failed to

determine the merits of Mr. Coleman’s contention that he

is entitled to an evidentiary hearing to prove he was

selected for prosecution and convicted solely because of

his race. Instead the majority has limited its review to a

discussion of the validity of the jury selection process and

the punishment imposed as the result of Mr. Coleman’s

conviction for the crime of aggravated kidnapping. The

majority has also failed to address Mr. Coleman’s remain-

ing constitutional attacks on his convictions for aggra-

vated kidnapping, deliberate homicide and forcible rape.

In refusing to consider the constitutional integrity of

Mr. Coleman’s convictions for deliberate homicide and

forcible rape, the majority appears to have blinded itself

to the fact that the prisoner was sentenced to serve 120

years for these offenses and that he seeks an evidentiary

hearing in the district court so that he can demonstrate

that the Montana court’s judgment on the issue of guilt

must be set aside.

Mr. Coleman attacks the validity of his convictions for

deliberate homicide, aggravated homicide, and forcible

rape on the following grounds:

App. 62

One. The evidence produced at trial was insuffi-

cient to convince a rational jury of Mr. Coleman’s

connection to the rape and murder of Peggy Lee

Harstad. “A black man who has consistently main-

tained his innocence has been condemned ‘o death,

time after time, solely on the uncorroborated and

incredible testimony of a white alleged accomplice

who purchased his own life with his testimony.”

Appellant’s Opening Brief, page 48. In his amended

petition for a writ of habeas corpus, Mr. Coleman

also challenges the trial court’s failure to rule on his

objection to the accomplice’s mental competency to

testify at the guilt phase of the trial.

Two. He was denied the effective assistance of

counsel. Mr. Coleman asserts that without his knowl-

edge or consent, his first defense attorney told the

trial judge that truth serum tests had revealed that

his client was guilty. “[T]his information must have

colored not only the trial court’s view of the nature and

extent of Coleman’s guilt, but, when coupled with

Coleman's extensive trial testimony protesting his

innocence, must have led the trial court to conclude

that Colerman was both a murderer and a perjurer.”

Appellant’s Opening Brief, page 23. (emphasis

added). See Appellant’s Opening Brief, page 30 n.1.

Three. Mr. Coleman contends that he “was tried,

convicted, and sentenced as a result of pervasive

racial discrimination.” Appellant’s Opening Brief,

page 47 (emphasis added). He argues that the trial

judge’s reference to Mr. Coleman as “this black boy”

demonstrates racial discrimination compelling rever-

sal of the judgment of conviction of each crime.

Appellant’s Opening Brief, page 47.

The medeatie?é sole response to these constitutional

challenges to the validity of the judgment of conviction for

aggravated kidnapping, deliberate homicide, and forcible

rape is contained in footnote 9 of its opinion. The major-

ity offers the following explanation for its failure to

App. 63

review these colorable constitutional claims concerning

the validity of the guilt phase of his trial:

Coleman’s contention that he was prosecuted

and sentenced to death, because of race discrimina-

tion when that state plea bargained with Nank, a

white man, but refused to enter into a plea bargain

with Coleman, who is black, does not impact his

conviction of deliberate homicide. He would have

crime in any event.

Thus the majority has chosen to ignore Mr. Coleman’s

claim that, notwithstanding his innocence, he was

selected for prosecution solely because he is black.

If Mr.Coleman was selected for prosecution as the

result of invidious discrimination based on his race, a

plea resulting from the state’s violation of his constitu-

tional rights would be tainted and invalid. Contrary to

the majority’s conclusion, proof that the prosecution of

Mr. Coleman was animated by racial discrimination

would clearly “impact his conviction.”

The majority has not cited any authority for its

extraordinary assumption that a state prisoner whose

offer to plead guilty was rejected, may be denied his right

to an evidentiary hearing in order to prove that he was

selected for prosecution solely because of the immutable

fact that he is black. The fact that a person once offered to

plead guilty to avoid the death penalty should not bar

him from proving that he was selected for prosecution

because of his race, especially in a case where it is alleged

that the rejection of his offer is at least prima facie proof of

racial bias.

App. 64

The majority speculates in footnote 9 that if Mr.Cole-

man had entered a plea of guilty under the circumstances

reflected in the record, it would have passed careful

constitutional scrutiny. Without exposing its rationale, the

majority appears to assume that a plea of guilty, by a

person who was the victim of selective prosecution and

injected with sodium amytol [sic] while in custody, is

valid. I cannot agree. To validate a plea under such cir-

cumstances would reward outrageous governmental con-

duct in clear violation of a state prisoner’s rights to due

process and equal protection.

I recognize that the Supreme Court has held that a

trial judge may accept a guilty plea from a person who

informs the court that he is innocent but wishes to avoid

the extreme penalty. North Carolina v. Alford, 400 U.S. 25,

37 (1970). There was no claim in Alford, however, that the

prisoner had been selected for prosecution because of his

race and had received ineffective assistance of counsel.

No showing was made in Alford that the plea of guilty

was constitutionally invalid on any ground. It should also

be noted that the Supreme Court cautioned in Alford that

its holding “does not mean that a trial judge must accept

every constitutionally valid guilty plea merely because a

defendant wishes so to plead.” Id. at 38.

Assuming the truth of Mr. Coleman’s allegations, as

we must in this appeal, it would have been improper for

the state of Montana to have accepted Mr. Coleman’s plea

of guilty if he was selected for prosecution in violation of

his- federal constitutional rights. Furthermore, the evi-

dence is undisputed that Mr. Coleman’s offer to plead

guilty followed an alteration of his memory by the state

concerning his participation in the crimes charged against

App. 65

him as a result of an injection of sodium amytol [sic].

Long ago, in Townsend v. Sain, 372 U.S. 293 (1963), the

Supreme Court observed that a confession of guilt that is

drug induced would be involuntary. Id. at 307-309. I

seriously doubt that any of my colleagues would uphold

a guilty plea obtained under such circumstances.

In footnote 9, the majority also states: “Until Cole-

man is resentenced, we cannot evaluate the merits of his

claim of race discrimination based upon the State’s

refusal to plea bargain with him as it did Nank.” The

majority does not inform us why it cannot “evaluate” the

merits of the claim of racial discrimination prior to resen-

tencing. We have jurisdiction over this matter under sec-

tion 2254. The federal constitutional claims are ripe for

review. If these claims are valid, the majority has a duty

to “evaluate” and invalidate the conviction now. There

can be no valid sentence for a conviction based on

invidious discrimination.

In the passage quoted in the preceding paragraph,

the majority appears to suggest, albeit with delicate sub-

tlety, that Mr. Coleman’s claims of invidious selective

prosecution, may possibly survive this appeal if this court

is dissatisfied for unexplained reasons with the sentence

imposed by the trial court for aggravated kidnapping or

the treatment Montana gives to the conviction for that

crime!. Does the majority mean by this puzzling comment

1 The majority appears to have affirmed sub silentio the

district court’s dismissal of his claims that he was denied

effective counsel and that he was convicted in clear violation of

Montana law on the uncorroborated testimony of a mentally

incompetent accomplice> The majority does not suggest that it

will evaluate the merits of these claims after Mr. Coleman is

resentenced.

App. 66

that Mr. Coleman may return to the district court with a

new petition for habeas corpus relief limited to the sen-

tence “other than death” imposed by the Montana trial

court upon remand for the crime of aggravated kidnap-

ping? Or, instead, is the majority suggesting that Mr.

Coleman may file an untimely petition for a rehearing in

this court for a review of the judgment of conviction for

aggravated kidnapping limited to the claim of invidious

discrimination, if Montana’s treatment of this conviction

falls below the majority’s undisclosed expectations? It

should also be noted that because the remand is solely for

resentencing for aggravated kidnapping, the State of

Montana is under no duty, under the majority’s mandate,

to “treat” further the judgment of conviction for any of the

crimes for which Mr. Coleman stands convicted.

I do not understand the majority’s reluctance to face

up to Mr. Coleman’s constitutional attack on the judg-

ment of conviction for aggravated kidnapping, deliberate

homicide, and forcible rape in the appeal presently before

this court. If Mr. Coleman has stated sufficient facts to

show that these convictions were obtained in violation of

his constitutional rights, he is entitled to an evidentiary

hearing in the district court now. The treatment Montana

may give the sentence for aggravated kidnapping upon

remand has no bearing on the validity of Mr. Coleman’s"

challenge to his convictions for aggravated kidnapping,

deliberate homicide or forcible rape. Let us assume that

upon remand Montana requests and is granted a dis-

missal of the aggravated kidnapping charge. In that

event, has the majority concluded, by its concern over

how Montana will “treat” the aggravated kidnapping

charge, that Mr. Coleman should spend the rest of his life

App. 67

in prison on the remaining charges, without further fed-

eral review, notwithstanding the fact that he has alleged

that he is the victim of invidious selective prosecution

because he is black, that he received ineffective assistance

of counsel at the guilt phase of the trial, and that the

evidence supporting his conviction is based on the testi-

mony of an uncorroborated and mentally incompetent

accomplice? Mr. Coleman has spent over thirteen years in

custody. He is entitled to his freedom now if he can prove

the truth of these allegations without regard to Montana’s

treatment of the aggravated kidnapping charge.

In footnote 9, the majority attempts to justify its

failure to confront Mr. Coleman’s serious constitutional

challenges to his convictions with the curious comment

that “there is a strong practical possibility that today’s

decision upholding one of Coleman’s principal constitu-

tional arguments will serve ultimately to make it unnec-

essary for us to consider Coleman’s remaining claims.”

Majority Opinion, page 4702-03 n.9. Nothing in the

record, the many briefs that have been filed in this matter,

or the arguments of Mr. Coleman’s counsel support the

majority’s speculation that he will abandon his claim that

he is an innocent black man victimized by racial discrimi-

nation if the sentence imposed for aggravated kidnap-

ping is reversed.?

2 If the majority’s efforts at mind reading prove to be

accurate, it may have discovered a calendar clearing procedure

I will label “appellate sentence bargaining,” in which a state

prisoner is induced to abandon meritorious federal constitu-

tional challenges to the guilt phase of the trial in exchange for

a sentence “other than death.”

App. 68

The majority persists in ignoring the fact that if Mr.

Coleman was the victim of invidious selective prosecu-

tion, his conviction for aggravated kidnapping is invalid.

If so, any sentence, whether life or death, must also be set

aside.

The majority has avoided deciding hard constitu-

tional questions properly before it concerning the validity

of the convictions and has purported to resolve a sentenc-

ing issue it has no jurisdiction to reach if selective prosecu-

tion on racial grounds has been demonstrated.

In 1981, Justice Morrison of the Montana Supreme

Court made the following comment about this case:

The majority has one salutary aspect. It has finally

freed Coleman from the yoke of the state court sys-

tem and permits him to pursue his claims in federal

court. A federal court cannot help but be more recep-

_ tive to the important questions that Coleman has

raised but this court has turned down by wholesale

and summary disposition. I cannot conceive that this

case will leave a federal court with the abiding con-

viction that justice was done.

Coleman v. State, 633 P.2d 624, 666 (1981) (Morrision, J.,

dissenting).

Unfortunately, Justice Morrision was wrong. This

case will be returned to Montana by the federal court

system without discussing or resolving Mr. Coleman’s

claim that his convictions must be set aside because of

selective prosecution, ineffectiveness of counsel, and

legal insufficiency of the evidence to convince a rational

trier of fact of his guilt beyond a reasonable doubt.

App. 69

I would not want the task of explaining to Mr. Cole-

man that his federal constitutional challenges to his con-

victions for aggravated kidnapping, deliberate homicide,

and forcible rape will not be reached by this court

because “there is a strong practical possibility” that he

will give up his claim that an innocent man was selected

for prosecution because he is black in view of the tact that

the majority reversed the sentence imposed for aggravated

kidnapping. A prisoner who forcefully has proclaimed

his innocence for over thirteen years, condemned to be

imprisoned for the remainder of his life, might be for-

given if he suppresses his enthusiasm for the majority’s

imaginative interpretation of Mr. Coleman’s undisclosed

goals in this litigation.

The court’s disposition of this appeal is also unfair to

the State of Montana. The majority has reversed the sen-

tence of death for the crime of aggravated kidnapping

because, at the trial on the issue of guilt, Mr. Coleman’s

defense counsel introduced evidence that his client par-

ticipated in an uncharged burglary. Instead of ordering

that a new trial be conducted sc that Montana can

attempt to prove, after an error-free trial, that the extreme

penalty is warranted, the majority has reversed the sen-

tence of death; ordered a punishment “other than death”;

ruled against Mr. Coleman’s challenge to the jury that

convicted him; and implicitly affirmed the denial of an

evidentiary hearing on his remaining constitutional

claims that clearly “impact” on his convictions of each

offense. Thus, with the same brushstroke, the majority

has denied Mr. Coleman the opportunity to prove that he

App. 70

is entitled to his freedom from the threat of any further

incarceration on the aggravated kidnapping charge, not

merely a punishment “other than death,” and interfered

with Montana’s right under the police powers expressly

reserved to the states by our federal constitution, to

impose the death penalty for this offense.

The majority has not explained why it has denied to

Montana the opportunity to seek the death penalty upon

remand under circumstances free of constitutional error.

In footnote 7, the majority expressly declines to reach the -

question whether a state prisoner who was sentenced

under a constitutionally defective statute can receive a

death sentence under a law enacted after his conviction.

Nevertheless, without explanation or citation to the

source of its authority, the majority has decreed that the

State of Montana may not again impose the death penalty

in this case.

If the majority has silently concluded that a state may

not resentence a condemned person under a statute

enacted after his or her conviction, I respectfully suggest

that this important constitutional issue is deserving of

thoughtful discussion and critical analysis. Instead, while

the opinion carefully explains in footnote 7 that this issue

will not be reached, the majority proceeds without expla-

nation to enter an order that denies ex post facto effect to a

death penalty statute. Proper respect for comity and “our

federalism” demands that we act with appropriate

restraint and sensitivity, and set forth a principled expla-

nation, when we deny to a state the right to follow its

own public policy in selecting the appropriate punish-

ment that should be imposed for a violation of its crimi-

nal code. See Rummel v. Estelle, 445 U.S. 263, 274 (1980)

App. 71

(“one could argue without fear of contradiction by any

decision of this Court that for crimes concededly classi-

fied and classifiable as felonies, . . . the length of the

sentence actually imposed is purely a matter of legislative

prerogative.”) I regret that the maj

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