Moran v. Morris, 79-2655

• Decision Date: 28 December 1981
• Docket Number: No. 79-2655,79-2655
• Citation: 665 F.2d 900
• Parties: Kenneth MORAN, Petitioner-Appellee, v. Paul J. MORRIS, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 900

665 F.2d 900

Kenneth MORAN, Petitioner-Appellee, v. Paul J. MORRIS, Warden, Respondent-Appellant.

No. 79-2655.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1980.

Decided Dec. 28, 1981.

Owen Lee Kwong, Los Angeles, Cal., for respondent-appellant.

Leslie H. Abramson, Beverly Hills, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY and TANG, Circuit Judges, and SPEARS, ^* District Judge.

KENNEDY, Circuit Judge:

The State of California appeals from an adverse judgment in a habeas corpus proceeding. Kenneth Moran, the petitioner, had been convicted of serious crimes in the Superior Court of California in and for the County of Los Angeles. Petitioner was convicted on two counts for kidnapping with the purpose of robbery, two counts for robbery in the first degree, three counts for burglary in the first degree, and for conspiracy to commit those offenses. The convictions were affirmed by the California Court of Appeal, which filed a comprehensive but unpublished opinion.

The petitioner's principal argument in applying for a writ of habeas corpus is that his sixth amendment right was violated because his state trial counsel was incompetent. Petitioner's claim essentially rests on his counsel's failure to object to some of the evidence used to corroborate the testimony of an accomplice who testified for the prosecution.

Moran's habeas corpus petition was referred by the district court to a magistrate for an evidentiary hearing pursuant to the Federal Magistrate's Act, 28 U.S.C. § 636(b)(1)(B) (1976). The magistrate held an extensive evidentiary hearing and on July 25, 1979, filed a detailed opinion, which constituted his initial report and recommendation. The magistrate heard objections to the report from both counsel and substantially rejected them. He filed a supplemental report and recommendation with the district court on September 5, 1979. On that same day, the district court adopted verbatim the magistrate's report and recommendation. The court ordered issuance of the writ, conditioned upon certain further proceedings in the state court. Its opinion, reciting the magistrate's recommendations, is reported. Moran v. Morris, 478 F.Supp. 145 (C.D.Cal.1979).

The proceedings before the magistrate were transcribed long after the district court approved the magistrate's recommendation, precluding the possibility that the district court reviewed the transcript prior to judgment. It is possible that the district court listened to tape-recordings of the proceedings, but the shortness of time between the submission of the magistrate's report and the entry of judgment strongly suggests that this did not occur, and all counsel at oral argument in this court assumed that the district judge did not review the tape or have it available. In approving the magistrate's recommendation, it appears that the district court referred only to the record submitted with the habeas corpus petition. See id., at 147. This submission would have included only the state court trial transcripts, and not the transcripts of proceedings held before the magistrate.

The Federal Magistrate's Act specifically provides that "a judge of the (district) court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (1976). A threshold requirement for a de novo determination is that the district court have a record of the proceedings before the magistrate. Orand v. United States, 602 F.2d 207, 209 (9th Cir. 1979). See also Campbell v. United States District Court, 501 F.2d 196, 206-07 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). This condition was not met here. The error is more significant than simply a failure to observe a technical statutory requirement. The district court was in effect putting in motion the machinery to set aside felony convictions that had been thoroughly reviewed in the state court system. To do so without strict compliance with the statutory requirement of a de novo determination was a serious breach of the etiquette that must prevail in the federal system if the sovereignty of the separate states is to be accorded its proper respect. On this ground alone, the case must be remanded.

The State argues that the district court could not, consistently with article III of the Constitution, delegate an evidentiary hearing to a magistrate where the ultimate issue is the validity of a state court judgment. That contention is, essentially, that any critical findings of credibility or fact on which the grant or denial of a writ will ultimately rest must be made by an article III judge. In our view, this argument is not ripe for our consideration. The Magistrate's Act explicitly provides that a district court may receive any additional evidence it considers necessary. There may be compelling reasons why considerations of comity, faithfulness to the statutory scheme, or the need to resolve the course of a fairly complicated chain of events several years ago will lead a district court to receive substantial significant evidence, including live testimony of any witnesses thought appropriate. If a court makes a de novo determination of the disputed findings or recommendations, it may discover the need to hear additional...