57 F.3d 690 (9th Cir. 1994), 91-15609, Moran v. Godinez

Docket Nº:91-15609.
Citation:57 F.3d 690
Party Name:Richard Allan MORAN, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee.
Case Date:November 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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57 F.3d 690 (9th Cir. 1994)

Richard Allan MORAN, Petitioner-Appellant,

v.

Salvador GODINEZ, Warden, Respondent-Appellee.

No. 91-15609.

United States Court of Appeals, Ninth Circuit

November 15, 1994

Submission Deferred May 16, 1994. Argued and Submitted April 25, 1994.

Submission Deferred May 16, 1994.

Resubmitted July 1, 1994.

Amended June 2, 1995.

Cal J. Potter, III, Las Vegas, NV, and Edward Chikofsky, Washington College of Law, the American University, Washington, DC, for petitioner-appellant.

Frankie Sue Del Papa, Atty. Gen., and David Sarnowski, Chief Deputy Atty. Gen., Carson City, NV, for respondent-appellee.

On Remand from the United States Supreme Court.

Before FARRIS, PREGERSON and THOMPSON, Circuit Judges.

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

ORDER

The opinion filed November 15, 1994, Moran v. Godinez, 40 F.3d 1567 (9th Cir.1994), is amended as follows:

1. At page 1572, the word "possible" in the first sentence of the first full paragraph in the righthand column is changed to "impossible". With this change the sentence will read:

When a state court wrongfully fails to hold a competency hearing, "it often may be impossible to repair the damage retrospectively."

2. At page 1572, the word "However" is inserted at the beginning of the second sentence in the first full paragraph in the righthand

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column. With this change, the sentence will begin: "However, although retrospective competency hearings are disfavored,".

3. At page 1572, the "But see " signal and the citation to United States v. Aponte, 591 F.2d 1247 (9th Cir.1978) which follows this signal at the end of the third sentence in the second full paragraph in the righthand column are deleted, and the third sentence in that paragraph which begins: "He was ideally situated", is changed to read:

His familiarity with the case made him well situated to adduce any additional evidence needed to determine Moran's competency.

4. At page 1574, the phrase "substantive constitutional right" in the second sentence of the second full paragraph in the righthand column is changed to "substantive right". The sentence will then read:

Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest.

5. At page 1574, the phrase "substantive constitutional right" in the second sentence of the last paragraph in the righthand column is changed to read "substantive right". With this change, the sentence will read:

This violation of state law, however, did not result in the deprivation of a substantive right, because the state provided Moran with constitutionally adequate procedures to evaluate his competency, see Drope [v. Missouri ], 420 U.S. at 172, 95 S.Ct. at 904 [43 L.Ed.2d 103 (1975) ], even with the burden of proof on Moran.

With the foregoing amendments, Judges Farris and Thompson voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Pregerson voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the cause en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. Judge Pregerson dissents from the refusal to hear this case en banc. His dissent is filed with this order.

The appellant's motion to file a letter reply to the State's response to the petition for rehearing is granted.

PREGERSON, Circuit Judge, dissenting, in which REINHARDT, Circuit Judge, joins:

I dissent from the refusal to rehear this case en banc. The majority opinion is flawed in three very serious respects. I discussed two of these errors in my dissent from the panel's decision in this case, Moran v. Godinez, 40 F.3d 1567, 1577-1586 (9th Cir.1994) (Pregerson, J., dissenting), and I will summarize those two issues only briefly here. The third error is an error of equal magnitude, which I will set forth in more detail below.

First, the majority erred in concluding that the retrospective competency hearing in which Moran was allocated the burden of proof cured the trial judge's error in failing to hold a contemporaneous hearing as to Moran's competence. A violation of the trial court's obligation to hold a competency hearing under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), can only be cured by a post-conviction hearing in which the state bears the burden of proving the defendant was competent to stand trial.

Second, the majority opinion completely fails to examine whether Moran's mental state and the drugs he was given subverted his decisions to waive counsel and plead guilty. In concluding that the Faretta canvass was adequate, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the majority fails to acknowledge that the trial court was required to exercise a heightened degree of care because Moran was unstable to the point of suicide, he was under the influence of state-prescribed drugs, and he was facing the death sentence. See United States v. Christensen, 18 F.3d 822, 825-26 (9th Cir.1994).

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Third, the majority in Moran has adopted a novel and unsupported definition of what constitutes a state-created liberty interest. This definition directly conflicts with existing precedent and represents a radical departure in the law.

Moran raised a due process claim because the trial court violated the law of Nevada by placing the burden of proof regarding his competence to stand trial upon the defendant rather than the state. 1 Moran's due process claim is thus relatively straightforward: state law governing Pate violations creates a liberty interest which is protected under the Due Process Clause of the Fourteenth Amendment, and the state's failure to adhere to its own law in conducting the post-conviction hearing violated Moran's right to due process.

As the majority notes, two requirements must be met for a protected liberty interest to be created: first, the state rule must contain substantive predicates triggering its application; second, the state law must contain explicit, mandatory language concerning the outcome once the substantive predicates are met. Moran, 40 F.3d at 1574.

Here, as Moran points out, the Doggett decision of the Nevada Supreme Court clearly contains the necessary substantive predicate ("when the trial court has failed to follow the procedural safeguards of Pate "), as well as explicit, mandatory language concerning the outcome ("the State is required to forego its usual requirement that the defendant establish his incompetence as of the date of the original trial."). Moran, 40 F.3d at 1574 (quoting Doggett, 572 P.2d at 210) (emphasis added); see also Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir.1991) (finding that a state-created liberty interest exists when, as here, the state misapplies its own law). Therefore it is clear that Moran has established the existence of a state-created liberty interest. Nevertheless, the majority concludes that no liberty interest has been created by Doggett.

The only justification provided by the majority (in its unamended opinion) for concluding that no state liberty interest exists is that the state rule does not protect a "substantive constitutional right" because the federal Constitution does not require the burden of proof to be placed upon the state. Moran, 40 F.3d at 1574. In effect, the majority holds that courts cannot recognize the existence of a liberty interest when a state law creates one unless that liberty interest is also independently guaranteed by the federal Constitution.

The panel has now amended its opinion, and deleted the word "constitutional" in two places within its discussion of Moran's state liberty interest claim. 2 Unfortunately, by eliminating the word "constitutional," the panel has not erased the conflict its opinion creates with existing precedent. The problem with the opinion, both the original version and the amended one, is not the terminology that the panel uses to describe the "substantive right" requirement, but the meaning that the panel assigns to that requirement. As the opinion still makes clear, 3

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the "substantive right" requirement means that state-created liberty interests may only be recognized when the right in question is independently protected by the federal Constitution. This is a rule sharply at odds with existing precedent.

The majority's conclusion that no protected liberty interest exists unless the liberty interest is also independently guaranteed by the federal Constitution is in direct conflict with the explicit holdings of at least two Ninth Circuit decisions. In Fetterly v. Paskett, 997 F.2d 1295 (9th Cir.1993), we held that a state court's failure to weigh sentencing factors in the manner required by state law established "a cognizable claim that in enacting and enforcing [the statute, the state] has created a liberty interest protected under the Due Process Clause of the Fourteenth Amendment." Id. at 1301. In reaching this conclusion, we specifically held:

There is, of course, nothing in the Constitution of the United States that requires Idaho's legislature to approach balancing as it has done in [the state statute]. However, the failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.

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