Opposition Brief — Estelle v. Boardman
Supreme Court brief1992
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@ Court, U.S.
. Supreme .
P 42 FILED
; AUG 10 19%
NO. 91-2006 OFFICE OF THE QLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1991
WAYNE ESTELLE, Warden, Petitioner,
Vv.
GARY STEWART BOARDMAN, Respondent.
BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
* PHILLIP A. TREVINO
201 North Figueroa, Suite 700
Los Angeles, California 90012
Telephone (213) 936-8590
Attorney for Respondent
MARY F. GIBBONS
5141 Colfax Avenue
North Hollywood, California 91601
Of counsel to Respondent
* Counsel of Record
QUESTIONS PRESENTED
I.
WAS IT A PROPER EXERCISE OF DISCRETION FOR THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
TO FIND, BASED UPON THE HISTORY OF THE CASE, THAT
CALIFORNIA WAIVED ANY TEAGUE v. LANE DEFENSE?
II.
DOES A DEFENDANT HAVE A FEDERAL DUE PROCESS RIGHT OF
ALLOCUTION UPON REQUEST PRIOR TO SENTENCING?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. ........ cece cc cece cece er cece eneeescces i
Ae: ey ne rer er ee ee re ee ee ii
TABLE OF AUTHORITIES. .....ccccccccccsccccccessscccsccces iii
gl) oo) ree tee ee eee ee ee ee eo viii
STATEMENT OF THE CASE... ..ccccccccccccsececesesesccscccece 1
Factual Statement...... cc ccc ccccecesecrvesenseseccces 1
Procedural HiStOry......cccecccccererseneessesecscces 3
REASONS FOR DENYING THE WRIT... 1... eee cece cece rene renvene 6
l. The Ninth Circuit properly found, based upon the..... 6
history of the case that, for whatever reason
(tactical or otherwise), thé Petitioner waived the
right to raise a Teague defense.
ne The Ninth Circuit’s exercise of discretion does..... 11
not put it at odds with any other Circuit’s decision.
- The Ninth Circuit’s decision in this matter will....14
not prevent California from raising in a timely
fashion any applicable Teague defenses in future
cases.
4. The Ninth Circuit, looking to tradition and......... 16
practice properly found that a defendant’s right to
allocute on request prior to judgment and imposition
of sentence is a fundamental right guaranteed by due
process.
5. There is no reason for concern here for hybrid...... 24
representation or for the federal constitutional
decisions of the California Supreme Court.
COMNCLAIS ION. coc ccccccccc cress ceceeewseseeesesesesesesesere 26
-ii-
TABLE OF AUTHORITIES
U.S. Supreme Court Decisions
eRe. BR ee sl Pe re ee ee ee ee 50; i3
497 U.S. 37 (1990)
eee Ot Wh eee ST” eres Te eee eer Te ee CE ee eee ee 6
342 U.S. 333 (2932)
Ce Ee ee kb hth HSER ES REAR RARE RD OE OOES 6
481 U.S. 129 (1987)
4 ee ee ee ee ed ee a ee ee ee 16
365 U0... 301 (1961)
oy ey a ge Pe 0 Ae Peer rae ey awe oe ee ee oe ae a ee 25
465 U.S. 168 (1984)
co) a ee | Ae ee er ro ee ee ee ee ee ere eee a, &, @
489 U.S.288 (1989) a
U.S. Courts of Appeals Decisions
Anhe Vv, BOSE COPOE US 65s 66 ewe ERE SK RR NRO RE ER REND OS 17
586 F.2d 334 (4th Cir. 1978)
Boardean wv. Cee ie oss s cena ese wili, Sy Fo De 235, 46, 239
957 F.2d 1523 (9th Cir. 1992)
Cea 2. Ce a 6 kk ee eee Oe ee 86 Bek Oe ae 6. 8 be ORE Oe 12
911 F.2d 1494 (llth Cir. 1990)
ge, ey Ee , eae ee ee een ee eee 12
933 F.2d 1328 (7th Cir. 1991),
* cert. denied, 112 S.Ct. 446 (1991)
ee Be Ee Pere Te ee C TEL CCPC OUEEeeEee 13
888 F.2d 1286 (10th Cir. 1989)
err ST eee ee eee ee 12
ae 919 F.2d 1091 (6th Cir. 1990),
cert. denied, 111 S.Ct. 1608 (1991)
Beit Ws BABCe cee cnsassere eT Tee ee Oe STR O CCE ECTS TCL 11
ms 904 F.2d 950 (5th Cir.1990),
vacated, 112 S.Ct. 1463 (1992)
Eee SO SCORE, once de eee eH CRS dR eee ee RS ORDO ASHE SS 19
871 F.2d 39 (6th Cir. 1989)
~i4i-
U.S. Courts of Appeal Decisions (continued)
United States v. FLEMING, .... eee ween eee erence eereeeeees 19
849 F.2d 568 (llth Cir. 1988)
United States Vv. JACKSON, -cccccceccccscccesesevecscesscces 19
923 F.2d 1494 (lith Cir. 1991)
nite Staten ©. Miser, . ccc cc ccc eeeeerasaeresereteeeenes 18
849 F.2d 896 (4th Cir. 1988)
linitead Staten 8. MAPOe, .occcnrssreereseesesresecceseesene 19
928 F.2d 654 (5th Cir. 1991)
United States Vv. PLINGe, .ccccccecccessessesecesesecssessene 18
868 F.2d 1379 (5th Cir. 1989)
nited States VW. TUENOT, ccc ccccereceseeseesesecevreseessane 18
741 F.2d 696 (5th Cir. 1984)
United States Vv. Walker, cco ccccccsncccesccecesscsesseseeee 18
896 F.2d 295 (8th Cir. 1990)
U.S. Rules and Statutes
Federal Rule of Appellate Procedure 40(@)....-++++++e6- 4, 5
Federal Rule of Criminal Procedure 32..........+.-. 1G, 29s a2
State Cases
Bassett v. Commonwealth, ..... cece eee ee rrr eee ernencceveces 21
284 S.E.2d 844 (1981)
COLMA GT. POODILM, wccccccccescessessessceesdscveseeessece 21
482 P.2d 378 .
SE SS 0 ee ee ee eee ee re 21
203 So.2d 283 (1967).
TAORATES VW. BSEOCE, cccccccccesecscecsneneesesesseseseseeess 21
444 A.2d 876 (1982)
EO OS. BORER. gn ck eee eee Bee ere see Heeesereeeereneees 21
400 N.E.2d 1177 (1980)
OS Ea OF ae ee ee ee ee ee ee ee 21
485 P.2d 112
People v. Gulley,... cece cece cece reece nnceennvcceeessenes 22
17 Mich.App. 646
State Caeses (continued)
Robalewski v. Superior Court, ...ccccccccssvvvveevecevseces 21
197 A.2d 751 (1964)
et ee: 4 ee eae ee ae ee ee ee aaa eee ee 21
143 S.W.2d 279
Sef Ae ll! eer eee eer eee ee RTP ee ee ee ee 21
117 N.E.2d 348 (1960)
A ee Ae. eee ee ee ee ee ee 2 ee 22
461 N.W.2d 356 (1990)
Beate ww. Bivenan, . 500s 04s “Seen TORT PETE ROCCE OCR ee 21
300 S.W.2d 420,
cert. denied, 354 U.S. 914
ee ee ee? ys ee ee er eee ee a ie a 21
761 P.2d 1388 (1988)
fe ae) A err re eee ee eee eee TY ee ee oe 22
280 S.E.2d 775 (1981)
oe it oe) eee ewe era mr area re ee he a er a ee 22
791 P.2d 730 (1990)
State WV. BiGOlOee sd ,ccscececsvecess ree are er he ee eee ee 21
471 A.2d 613 (1984) ;
Pere sk 66 6 bod Cae O Oe eee ew Sew CRRROS OE BON SEES 21
524 S.W.2d 624 (1975)
State Statutes, Rules and Requlations
Alaska Rules of Court, Rule 32(a) (1991)... ..ccccsccesees 21
Arizona Revised Statutes, Rules of Crim.Pro. 26.10....... 21
Arkansas Stat. Ann. §§43-2301, 2303, 2813 (Supp.1973)....21
Cals seenia Pea) COG GS Bee + os.c6 606 ee 6 bases seveeeavess 1
California Penal Code § 288@......ccceeevecssees preteens 1
California Pendl Code § 679. occ wncvescecsssstvsveressecee 23
California Penal Code § LDL. Li ccsvsvevecccccscscnssceses 23
California Penal Code § 1200.......... PEETUTE CLT CCT “£20
District of Columbia Code Ann. §23-103 (1981)...... Trey s 21
_—
State Statutes, Rules and Requlations (continued)
Hawa:i Rev.Stat. §§706-601(2), 706-602, 706-604(1).......-
Idaho Code, Criminal Rules, Rule 33 (1991). ..ceeeeeeeeenes
Indiana Code Ann. §35-4.1-4-5 (Burns 1979 Repl.)........-
Towa Rule 22(3)(G).ccccccccccvcvcseccessesevsevescesesers
Kansas Stat.Ann. §22-3424 (1991)... cee eee ene e ene ereeveces
Maine Rules of Court, Rule 32(a)(2) (1991)... eeeeeees
Maryland Code Ann. G4-343((d). .ccccccccccccevceecessesece
Massachusetts Ann. Laws Rule 28(b) (Law.Co-op 1979)......
Minnesota Rules of Court, Rule 27.03 Subd.3 (1992).......
Missouri Rev.Stat. §546.570 (1959)... eeeeeeeevveess ree
Montana Code Ann. $46-18-115(3) (1991) 0000666 6606885 4500
Nebraska Rev.Stat. §29-2201 (1989)... cece reece ere cvess
Nevada Rev. Stat. Ann. §176.015(2)(b) (Michie 1991)......
New Jersey Rule 3:21-4(b) Siemens the Courts (1991)....
New York Crim.Pro.Law §380.50 (1983)... -..--eee cece eecees
North Carolina Gen.Stat. §15A-1334(b)(1991)........-+226-
Ohio Rev.Code Ann. §2947.05 (1987)... eee eee e eee eeevveee
Pennsylvania Con.Stat.Ann. §1405 (1989)....--eeeeereeeees
South Dakota Codified Laws §23A-27-1 (1988).....---.-22e6.
Tennessee Code Ann. §40-35-210(6) (1990)...-..eeeeeeeeeee
Texas Code Crim. Proc.Ann. Art. 42-07 (1979)... ccrcccveves
Vermont Stat. Ann. Rule 32 of Crim.Pro. (1983). Torrey...
Virginia Code Ann. §19.2-298 (1950)... eee eee cence eeececs
West Virginia Code, State Rules, R.32(C) (USSR). nce e Pen se
Wisconsin Stat.Ann. §972.14° (1985)... eee ence cee eeevcess
Wyoming Court Rule 33(€@)(1)(1979).... eee ee ee enn envnenvcees
-vi-
Other Sources and Materials
Black’s Law Dictionary 70 (5th ed. 1979)... eeeeeeeneeees
Wall Street Journal, August 7, 1992, at Bl, col. 5.......
-vii-
OPINION BELOW
The petition for a writ of certiorari erroneously
indicates that the decision of the Ninth Circuit is
published at 937 F.2d 1523. The opinion of the lower court
is actually found at 957 F.2d 1523 (9th Cir. 1992).
-viii-
"STATEMENT OF THE CASE
Factual Statement
Respondent Boardman was sentenced to state prison for
a twenty-four year term by the Superior Court of California
after his guilty plea to eleven counte of offenses in
violation of California Penal Code §§ 288 and 288a.
During the sentencing hearing, but prior to
pronouncement of judgment and sentence, the court made the
following observation: ‘
I also did receive a letter from Mr. Pearl (sic)
{[victim’s father] that is part of the Probation
Report.
I don’t know if you saw that, Mr. Ziff [defense
counsel]. It was an illuminating letter that I read
that shows the type of damage that he’s done in
matters of this nature. It creates ongoing problems
for so many people. And, so, I guess I would say that
without attempting to emphasize that the more (sic)
than any other, that it was a letter that did have its
effect upon me and it would be a letter that’s
expressed the problems created by what went on between
the defendant and young Mr. Pearl.
[Dec. 12, 1983, RT 7-8]!
During the sentencing hearing, Mr. Boardman, through
his counsel, requested that he be permitted to allocute
personally prior to the pronouncement of his sentence. The
record shows Boaerdman’s counsel advised the court,
"Apparently, the defendant would like to address the court
before I conclude." [Dec.13, 1983, RT 43; SER 7] This
request was denied by the court, which noted that, "I’d
just as soon not, if you don’t mind. Any remarks should
come from (defense counsel]. . . Just in general, I find
it’s better not to have the defendants to make comments."
[Dec. 13, 1983, RT 43; SER 7)
In contrast, the parents of the victims made their
presence known, and were allowed to voice their concerns to
the couyt through the prosecutor and by written submissions
forwarded to the court. 2
1
"RT" refers to the Reporter’s Transcript of the
sentencing hearing before the California Superior Court for Los
Angeles County; "SER" refers to the Supplemental Excerpt of
Record filed by the appellee before the United States Court of
Appeals for the Ninth Circuit.
2
See generally the December 12, 1983, reporter’s
transcript which includes a recitation of the views conveyed to
he court by the prosecution on behalf of the parents of the
complaining witnesses.
ee Bet He gre -
Just prior to imposing sentence, the court stated:
And I must balance the needs of protection of
society against the needs and aid to you, Mr.
Boardman.
And I‘ve listened to society. It’s my duty to
listen to society, to try to be aware of what society
.
J
+
ling the courts what they do at the ballots in
the box, what they do with their letters to the
editor, what they do when they come here in court and
have some feel and be responsive to the attitude of
ety
Dec. 13, 1983, RT 68] (emphasis added
At the nclusion of the hearing, and having refused
t hear from Mr. Boardman, the court imposed a twenty-four
24) year period f incarceration [SER l, 4]
Procedural History
Through direct appeal, and then state and federal
habeas petitions, Mr. Boardman continually pressed his
claim that the sentencing court’s denial of his request to
be heard at the sentencing hearing constituted a denial of
federal due process.
Boardman filed his petition for habeas corpus with the
United States District Court on August 3, 1989. In reply
to the District Court’s Order to Show Cause, California
filed a response to the petition which asserted various
legal bases why the petition should be denied. California
did not assert a Teague defense in the District Court, even
though all of the ensuing proceedings occurred after Teaque
v. Lane was decided by this Court.
Following denial of his petition by the District
Court, Boardman appealed to the United States Court of
Appeals for the Ninth Circuit. Once again, despite full
briefing and oral argument, California did not assert a
Teague defense.
After the Ninth Circuit published its decision on
January 9, 1992, California asserted for the first time
that Teague procedurally barred the relief that Boardman’s
petition sought for almost two and a half years.
California raised this new claim in its petition for a
rehearing filed January 22, 1992. Boardman was unable to
respond to the petition for a rehearing since pursuant to
Federal Rule of Appellate Procedure 40(a), the Ninth
Circuit will not receive an answer to a petition for
rehearing unless requested by the court.?
On March ll, 1992, the Ninth Circuit issued a
supplemental opinion in response to California’s petition
for rehearing. In that opinion, the Court of Appeals noted
that it had the discretion to deem the defense waived where
the state had failed timely to assert it. After conducting
a thorough and complete balancing of the interests
involved, the Ninth Circuit concluded that the state’s
conduct of the litigation and its failure to assert a
Teague defense justified the Court’s finding a waiver since
"Cal.fornia inexplicably failed to raise the Teague defense
both in the district court and on appeal." 957 F.2d at
1537 (emphasis in original) Accordingly, the Ninth Circuit
exercised its discretion and found California to have
waived any Teague defense.
Given the foregoing, Boardman never briefed this issue
before the Ninth Circuit. This is the first time Boardman
has had an opportunity to address this issue. By its
actions, California seeks to convert this Court into a
court of first instance for litigation of Teague claims.
Rule 40(a) of the Federal Rules of Appellate Procedure
provides, in pertinent part, that "[n]o answer to a petition for
rehearing will be received unless requested by the court, but a
petition for rehearing will ordinarily not be granted in the
absence of such a request." No such request was issued by the
Ninth Circuit.
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REASONS FOR DENYING THE WRIT
1. The Ninth Circuit properly found, based upon the
history of the case that, for whatever reason
(tactical or otherwise), the Petitioner weived the
right to raise a Teague defense.
California suggests that review be granted to consider
.
the refusal of the Ninth Circuit to address the merits of
its assertion of a procedural defense based upon Teague v.
Lane, 489 U.S.288 (1989). Yet, California did not advance
this argument in the District Court, in briefing before the
Ninth Circuit or even in oral arqument. Indeed, this
"defense" was raised for the first time (and then only as
an ancillary issue) in California’s Petition for Rehearing
filed with the Ninth Circuit after the Court of Appeals had
fully considered the case and published its decision.
The Ninth Circuit’s refusal to consider California’s
Teague argument was a decision squarely within the proper
bounds of its discretion, in accordance with the principles
articulated in Granberry v. Greer, 481 U.S. 129 (1987), and
first noted long before by this Court. Frisbie v. Collins,
342 U.S. 519 (1952) (cited in Granberry). Granberry
properly calls for a court to take a "middle ground" as it
exercises its discretion in construing a waiver by a state
SNL SMR SN NIE RA OR SN IN eS nM des ND PORTE Re LS le cee . oe +e tee ers
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from a failure to raise arguments and issues in a timely
fashion.
Adopting this framework of analysis, in Granberry this
Court rejected a stri er approach which would have either
a absolutely precluded a party from raising the issue
after the Distr t IzG- DI eedings, I r required tnat
a urt @a@iway I lider tne irgument whenever raised, r
matter at what taa bh Ow ste n the pr eedina ,
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Collins v. Youngblood, 497 U.S. 37 (1990), this Court made
it clear that Teaque was a tool which could be used by a
state when appropriate, but which was not "jurisdictional"
in that it is not so fundamental that a court must raise
the issue sua sponte. Consequently, whether or not to
invoke Teaque is a strategic decision properly vested in
the state. Yet here California urges this Court go further
ind establish a rule that would require federal courts to
econd guess the strategy f the states when they chose not
t it ize this t surely, the federal courts should be
‘ + ; ‘ iT t he ct rte ? ra se, a t me y
) t ‘ ¢ irq ¢ t wh } ©T e Ls
t r igi | N tne federa
t } exte 1¢ lierat f the merits [
habea petit wi t eek relief under new’
‘ ‘ lL + ; , oc} exa + v7 the pr Site
t ‘ s y | >
t } tne federa rei nt aqdare ing the
t t by witht jing of the pr edural
f i eby ¢ raging the irt to expend the
No evidence was ever presented to show whether the
failure t argue Teague ab initio was caused by a strategic
J y
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1C1S1ion Or some otner reason. Nonetheless, competent counsel
i c . , wile : , 3 . " , : } ey =
for the State of California, well versed in the law of habeas
rpus, surely cannot suggest an unfamiliarity with so
fundamental a decision in this area.
oS Ee
time and effort to consider fully the case, only to have
the state seek to emasculate the decision by a last minute
invocation of Teague. Moreover, Teague was never intended
to provide a vehicle for states to disable the power of the
federal court once exercised. The federal courts cannot
afford to allow themselves to be manipulated in this
fashion by disappointed litigants.
2. The Ninth Circuit’s exercise of discretion does not
put it at odds with any other Circuit’s decision.
California advances an illusory conflict between the
circuits as a basis for urging review by this Court. An
examination of the authority cited in the petition shows
that no such conflict exists. California suggests that
three circuits refuse to infer a waiver of the Teaque
argument based upon a state’s failure to raise it. The
cases cited reveal no such rule of refusal to infer waiver.
First, in Smith v. Black, 904 F.2d 950 (5th Cir.1990),
vacated, 112 S.Ct. 1463 (1992),° the court pointed ovt that
courts had differed as to "the appropriateness of
considering Teague limitations without the issue having
been raised by the parties." 904 F.2d at 981 n. 12. The
6 Smith was vacated by a per curiam order of this Court,
making its citation suspect.
L1-
Fifth Circuit then proceeded to consider a Teague defense,
but did so as an exercise of its discretion. Id. This, of
course, harmonizes with the Ninth Circuit’s actions here in
that it recognizes that the courts have discretion as to
t he ADI at . + Treaqu >
ifornia al -ites Hanrahan v. Thieret, 933 F.2d
y t V9 " ert jenied, ll2 S.Ct 446 (1991)
t atte t ent I t endorsed its eariier
j} tnat tate na wa ed any argument
i | ] > ‘ ‘ . + ty
Y , . | Tt i ‘ ? ¥ ]
Ni ‘ 4 494, a
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2 . 41g Jia F.4G ‘ 6tl I 9
608 91), the ixtl
2 w | . [ l'é ig ‘ [ | ] I I tne
e the argument 919 F.2aG a 4
: ind for the prof it n, a
é he that ; rt ha the 11s et n t find a
‘ ] * > + 1a + r ‘ y ta c + meé Ly t ¢
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Totally inapposite, and arguably mischaracterized in
the petition, is Hopkinson v. Shillinger, 888 F.2d 1286
(10th Cir. 1989) (en banc). There the Tenth Circuit found
that the failure to raise Teague did not result in a waiver
of the issue because Teague was decided while that case was
pending, and the court did not feel the state could have
been expected to have anticipated the decision. 888 F.2d
at 1288. Here, of course, Teague was decided years prior
to California’s belated invocation of the rule, and thus no
similar element of surprise from the new doctrine can be
discerned. 7
In sum, California urges this Court to grant review
simpiy because it has not prevailed below. As discussed,
the Ninth Circuit’s ruling embodies a proper exercise of
its discretion. After full consideration of the interests
of comity, federalism and fairness, that court elected not
7 In addition, Collins v. Youngblood, supra, was decided
in June, 1990. Consequently California has long been on notice
that the federal courts are not mandated to consider Teaque
issues in the absence of an argument by the parties. Of equal
importance is the fact that California raises this asserted
defense - late - with respect to the crux of all of the
litigation that culminated in the Ninth Circuit’s decision. Mr.
Boardman has all along contended that a denial of due process was
at stake by virtue of the refusal of the sentencing court to
afford him the right of allocution. This is not a case where the
decision turned on facts or a legal theory unforeseen by the
litigants. This was the issue in the case.
-]3-
to allow on a petition for rehearing the invocation of a
doctrine designed not to create advisory opinions but
rather to avoid them. California cites no case that
supports its novel argument that the federal courts cannot
rely upon the strategic decisions of advocates but rather
must undertake an obligation to obtain express waivers of
all available arguments. &® Review is uncalled for here as
the Ninth Circuit acted well within the discretion which
this Court, and all others, have agreed is appropriate.
ae The Ninth Circuit’s decision in this matter will not
prevent California from raising in a timely fashion
any applicable Teague defenses in future cases.
The Ninth Circuit’s determination that California
waived its right to assert a Teague defense in this matter
is a fact specific determination that will not in any way
impede California’s assertion of such defenses in future
The Ninth Circuit’s supplemental opinion makes
lear that California "brought this problem on itself
California also urges this Court to view the argument
as preserved so long as it opposed the grounds raised in the
petition generally. In so arguing, California fails to state why
courts should have to construe so broadly its position, or any
possible justification why the courts should not require the
state simply to articulate this defense. Indeed, such an
approach would deprive the courts of an early focus on a
dispositive defense, one which if valid could well save the
courts and the litigants the unnecessary expenditure of funds
occasioned by further litigation.
-]4-
by the manner in which it handled the litigation. 957 F.2d
et i337.
If this Court presumes, as surely it is entitled to
do, that California will litigate future cases with the
orders and decision of this Honorable Court in mind, then
the bodekal courts will be less likely to see California
again engage in tactics such as those used here. Such an
outcome will promote respect for and ready utilization of
this Court’s decisions by California, as well as result in
judicial economy for the federal courts in which California
litigates.
Further, such a course will ensure this Court is not
called upon repeatedly to act as a court of first instance
for the litigation of issues such as the factual question
of why the defense was not raised earlier below. It will
further have the salutary effect of encouraging litigants
to litigate fully all issues in a uniform and timely
fashion. This will. also ensure that the lower courts
perform their proper function of providing a forum for
resolution of factual matters and narrowing of the issues
without need for involving this Court in such matters.
-15-
4. The Ninth Circuit, looking to tradition and practice,
properly found that a defendant’s right to allocute on
request prior to judgment and imposition of sentence
is a fundamental right guaranteed by due process.
This Honorable Court decades ago aptly observed: "The
most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence,
speak for himself." Green v. United States, 365 U.S. 301,
304 (1961). The Ninth Circuit’s decision is true to this
proposition, and breathes life into its principle. In
doing so, contrary to California’s assertion, it does not
create conflict with other circuits’ decisions.
‘The precedential value of the decision here is
expressly limited to "circumstances in which a defendant,
either unrepresented or represented by counsel, makes a
request that he be permitted to speak to the trial court
before sentencing." 957 F.2d at 1530. In this regard, the
Ninth Circuit’s decision is fully consistent with the
principle articulated in Green as well as with the
decisions of all other Circuit Courts of Appeal. This is a
fundamental reason that cerciorari should not be granted:
there is no conflict within the circuits on the right to
allocute when a defendant so requests.
The decision, with its narrow holding, does not create
a conflict with any cases of any circuit. Rather, as the
decision correctly observes, the allegedly conflicting
-16-
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no conflict between the circuits on this point.
cases that did not find allocution to be a
ionally based right are readily distinguishable.
one was a defendant affirmatively refused the right to
ute by the sentencing court. "All of the cases
7 Constitutional status t allocution are factually
yuishable because they do not involve the denial of
firmative request t speak Boardman, 957 F.2d at
‘ na ] na
} é 17 pre ented I tne livers
te iSs¢ whe tne ente nq rt ta Ss
‘ ; t whethe tne jefendant w shes t be heard. **‘
tne lé aqaa t : a } {fe re it yuest ] Yr voes a
lant Nave } titutiona I jnt ft be invited t
f pr t tC { ente € The clear,
Ne t th yuest has bes in the negative
In the federal context this has repeatedly been held to
a violation of Rule 32 of the Federal Rules of Criminal
cedure which requires resentencing. United States v. Miller,
'.2d 896, 897 (4th Cir. 1988); United States v. Prince, 868
1379, 1386 (5th Cir. 1989); United States v. Turner, 741
696, 698-99 (5th Cir. 1984); United States v. Walker, 896
a92, Jet (Sta Cif. 990). These decisions were not premised
any constitutional right, but rather upon the provisions of
+e
18
California uses this different answer (to this different
a
question) as the basis for the perceived "conflict" it
finds between the decision below in this matter and the
other reported cases. As shown in the Ninth Circuit’s
decision, impartial analysis reveals neo legal conflict
exists.!!
Boardman and Ashe are the only two instances in which
sentencing courts affirmatively denied defendants the right
to be heard. The paucity of such cases is not surprising
when considered against the statutory framework and caselaw
that exists in most jurisdictions directing courts to
permit defendants to allocute prior to sentencing. Indeed,
even the instant litigation would not have occurred if the
trial judge had complied with California’s own
ll
Although Judge Trott begins his discussion by observing
that his sister circuits have reached conflicting decisions on
the question of allocution, he thereafter demonstrates that in
fact no conflict exists. While the following cases discuss the
issue, they do so in dicta since each was controlled by the terms
of Rule 32. United States v. Moree, 928 F.2d 654, 656 (5th Cir.
1991), and United States v. Jackson, 923 F.2d 1494, 1496 (llth
Cir. 1991). Cf. United States v. Coffey, 871 F.2d 39, 40 (6th
Cir. 1989), and United States v. Fleming, 849 F.2d 568, 569 (llth
Cir. i986). However, none of these courts was actually called
upon to decide the constitutional dimensions of a court
affirmatively silencing a defendant who wished to allocute. For
this reason, the doctrine of judicial restraint in constitutional
matters dictates that their opinions on the subject amount to
nothing more than dicta.
-19-
procedures. /2
This illustrates an equally compelling reason why this
matter does not merit the grant of a writ of certiorari.
Such a fact pattern simply is not likely to occur often.
Most jurisdictions already have statutes similar to the
While California case law does not require a defendant
personally be afforded allocution, California Penal Code § 1200
learly notes, in pertinent part, that "When the defendant
appears for judgment he must be . . . asked whether he has any
legal cause to show why judgment should not be pronounced against
him." This fits squarely within the definition of allocution
given by Black’s Dictionary: "Formality of court’s inquiry of
orisoner as to whether he has any legal cause to show why
judgment should not be pronounced against him on verdict of
conviction." Black’s Law Dictionary 70 (5th ed. 1979).
Nh
federal rule.}3 Hence, the fact pattern presented here is
13
A partial survey of the states and the District of
Columbia reveals the following. These jurisdictions are among
those that follow the federal model embodied in Rule 32 of the
Federal Rules of Criminal Procedure: Alaska, 1991 Alaska Rules
of Court, Rule 32(a); District of Columbia, D.C.Code Ann. §23-103
(1981); Idaho, Idaho Code, Criminal Rules, Rule 33 (1991);
Kansas, Kan.Stat.Ann. §22-3424 (1991); Maine, Rule 32({a)(2) of
Rules of Court (1991)(with exception for certain lesser
categories of offenses); Maryland, Md.Code Ann. §4-343((d)
(applicable in capital cases); Massachusetts, Mass.Ann.Laws Rule
28(b) (Law.Co-op 1979); Minnesota, Minn. Rules of Court, Rule
27.03 Subd.3 (1992); Nevada, Nev.Rey.Stat.Ann. §176.015(2)(b)
(Michie 1991); New Jersey, N.J.Rules Governing the Courts,
R.3:21-4(b)(1991); South Dakota, S.D. Codified Laws §23A-27-1
(1988); Vermont, Vt.Stat.Ann. Rules of Crim.Pro.Rule
32(a)(1)(1983); West Virginia, W.Va.Code, State Rules, R.32(C)
(1992); Wyoming, Wyo. Court Rules, R.33(a)(1)(1979).
These are among the states which have clearly
recognized the right of allocution, either by statute or by
caselaw: Arizona, 17 A.R.S. Rules of Crim.Pro. 26.10(b)(1);
Arkansas, Ark.Stat.Ann. §§43-2301, 43-2303, 43-2813 (Supp.1973),
and Tate v. Smith, 524 S.W.2d 624, 627 (1975); Colorado, Noland
y. People, 485 P.2d 112, Coleman v. People, 482 P.2d 378;
Indiana, Ind.Code Ann. §35-4.1-4-5 (Burns 1979 Repl.) and Minton
v. State, 400 N.E.2d 1177 (1980) (applies only after conviction
at trial); Iowa, Rule 22(3)(d) and State v. Jorden, 461 N.W.2d
356, 359 (1990); Missouri, Mo.Rev.Stat. §546.570 (1959) (as
modified by §546.580) (applicable after conviction at trial by
jury), and State v. Ashworth, 143 S.W.2d 279; State v. Kitchin,
354 U.S. 914; Montana, Mont.Code Ann. §46-18-115(3)(1991);
Nebraska, Neb.Rev.Stat. §29-2201 (1989); New York,
N.Y.Crim.Pro.Law §380.50 (McKinney 1983); North Carolina,
N.C.Gen.Stat. §15A-1334(b)(1991); Ohio, Ohio Rev.Code Ann.
§2947.05 (Anderson 1987), and State v. Baker, 117 N.E.2d 348, 352
(1960); Pennsylvania, 42 Pa.Con.Stat.Ann. §1405 (Purdon 1989);
Rhode Island, Leonardo v. State, 444 A.2d 876, 878 (1982),
Robalewski v. Superior Court, 197 A.2d 751, 753 (1964), State v.
Nicoletti, 471 A.2d 613 (1984); Tennessee, Tenn.Code Ann. §40-35
210(6) (1990); Texas, Tex.Code Crim.Proc.Ann. art. 42-07 (Vernon
1979); Utah, State v. Lorrah, 761 P.2d 1388 (1988); Virginia,
Va.Code Ann. §19.2-298 (1950), and Bassett v. Commonwealth, 284
S.E.2d 844 (Supreme Court of Virgina, 1981); Wisconsin,
Wis.Stat.Ann. §972.14 (West 1985).
Certain states have found it sufficient for the
defendant’s counsel to address the court: Alabama, Irwin v.
-21-
this Honorable Court or on the lower federal ourts.
ecision regarding allocution does not and
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.