# Petition for Writ of Certiorari — McCormick v. Coleman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0084%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 944 ## Text 3 /\ +i. US. 2 ¥ D 9 ] § 7 JUL 1989 No. 89- JOSEPH F. gp - vol In The Supreme Court of the United States October Term, 1989 y vw JACK McCORMICK, Warden of the Montana State Prison, and MARC RACICOT, Attorney General of the State of Montana, Petitioners, V. DEWEY E. COLEMAN, Respondent. >. al PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT La a 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 Z 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? ii TABLE OF CONTENTS Page CURE T IIIS PIER one c seen cccccnnccnacaces i TARE GP RAP CROM EO oo icin cciescsccededencs iv CIPO CET occ cccccuecscseveseesosrsaswuns 2 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 ee Vv . 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 ee eh ewan ees 2 ee cat hea b denen ene 2 STATUTES: Montana Code Annotated ae cccnancseceseesusen 3 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 } ee ev cc el dcibeesend nsscegh oun bun 2 SE AG 6.0 00.0 +8 0-0500005084065000.94500R8 wh 7 cua aa as | 7 a =|? se ne Ta _ ’ . ; A a ‘ + - X\ = - - \ - . - ° - r : —_ : é . = =n ‘ ~ = - 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. ,% 4 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. oe 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. a 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 ow 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- vr 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. , vy 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. 19 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 11 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 12 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. 13 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 14 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 15 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): ———— 16 [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 17 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 18 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 19 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 20 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. sa vr 21 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. 74 287 316 323 324 ~ 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. I 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. II 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 a 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). I 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 II 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. A. 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 B. 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. I. 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 unwill [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0084%3A1. Public record. Not legal advice.