Coleman v. Risley

• Decision Date: 19 January 1988
• Docket Number: No. 85-4242,85-4242
• Citation: 839 F.2d 434
• Parties: Dewey E. COLEMAN, Petitioner-Appellant, v. Henry RISLEY, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 434

839 F.2d 434

Dewey E. COLEMAN, Petitioner-Appellant, v. Henry RISLEY, Warden, Montana State Prison, and Michael T.

Greely, Attorney General for the State of Montana,

Respondents-Appellees.

No. 85-4242.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1986.

Decided Jan. 19, 1988.

Henry T. Greely, Stanford Law School, Stanford, Cal., for petitioner-appellant.

James M. Scheier, Asst. Atty. Gen., State of Mont., Helena, Mont., for respondents-appellees.

Appeal from the United States District Court for the District of Montana.

Before ALARCON, REINHARDT and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Dewey E. Coleman, a Montana state prisoner who has been sentenced to death, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We affirm.

I. FACTS

On July 4, 1974, Peggy Lee Harstad, twenty-one years old, disappeared while driving alone from Harlowton to Rosebud, Montana. The next day her car was found within a few miles of her home, near Rosebud. Several days later, a ranch hand discovered her purse inside a culvert about ten miles from her abandoned car. In the investigation which followed, an elderly couple reported that on the evening Harstad disappeared they had seen a black man and a white man hitchhiking between Roundup and Forsyth, Montana at about the time Harstad had been driving between those towns. The two men were identified as Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man.

On July 9, 1974, representatives of the Rosebud County sheriff's office questioned Nank. He admitted being in the area where Harstad had last been seen alive, and hitchhiking through Forsyth, Montana on the evening of July 4th. In an interview with FBI agents about one month later, Nank also admitted seeing the Harstad vehicle abandoned on the road and finding a purse along the road where he and Coleman had been hitchhiking. By this time the FBI had reported a positive comparison between Coleman's fingerprint and a fingerprint which had been lifted from a paper found in Harstad's purse. Vacuumings taken from the Harstad vehicle revealed Negroid head hairs and two Negroid pubic hairs.

On August 29th, almost two months after her disappearance, Harstad's body was found on the north bank of the Yellowstone River, just west of Forsyth, Montana. Because of decomposition of her remains, a cause of death could not be determined.

Nank and Coleman were arrested in Boise, Idaho in October, 1974 and charged with deliberate homicide in the death of Peggy Lee Harstad. During questioning Nank gave a full confession implicating himself and Coleman in the kidnap, rape and murder of Harstad. Coleman denied any involvement in the crimes. The apartment where Nank and Coleman lived was searched, as was their car. Two motorcycle helmets and a rope Nank said had been used in the crimes were recovered. Coleman and Nank were charged with deliberate homicide, aggravated kidnapping, and sexual intercourse without consent. A conviction of aggravated kidnapping carried with it a mandatory death sentence. Mont.Code Ann. Sec. 94-5-304 (1947) (repealed 1977).

On May 7, 1975, Nank entered into a written plea agreement with the State. He agreed to plead guilty to deliberate homicide and solicitation to commit sexual intercourse and to testify against Coleman in return for dismissal of the aggravated kidnapping charge; the dismissal of the aggravated kidnapping charge was not to occur until after Nank had testified at Coleman's trial. Coleman's counsel entered into plea bargaining discussions. Coleman insisted on maintaining his innocence, however, and was unable to make a plea agreement with the State.

On July 2, 1975, a pretrial hearing was held on a motion brought by Coleman's counsel seeking to obtain a court order authorizing the copying of Nank's medical records. Coleman was not present at the hearing. His counsel explained that Coleman had been taken to Billings, Montana for a sodium amytal examination to see if he could remember the events of July 4, 1974. During the course of the hearing, Coleman's counsel stated he wanted to enter into further plea negotiations with the State. The following colloquy occurred:

Defense Counsel: I want to enter into further plea bargaining with the State and with the Court.... Also what I have to say today, I have not confirmed State's Attorney: I don't go for that at all. I think we're either presenting an argument here. If we're going to hold a plea bargaining conference, let's do that later....

with my client, but I believe because of the shortness of time between now and the time of trial, it should be raised.... My client--well, also I want to proceed on the basis that this is plea bargaining and things I should say should not be held against my client at some later time. Is that understood?

The Court: I think that what he's doing is laying a foundation to bring something up. Now go ahead.

Defense Counsel: That's correct. I'll go forward. I don't believe that my statements can be used against my client in any event. The purpose of the psychiatric examination was to place my client under sodium amytal to see if his recollection and memory could be refreshed, because in all communications with me, he could not tell me what happened. He continually asserted his innocence and it presented quite a problem in trying to defend him. That was the purpose, to send him to Dr. Harr to have him placed under sodium amytal. That investigation has been conducted and I believe on the basis of that examination, that my client will want to enter a plea of guilty.

The Court: Without the condition of--

Defense Counsel: Without the assertion of innocence. Now these statements I make are based on conversations I had with my client prior to the time he went up for the examination. That if the examination revealed certain things that refreshed his memory and indicated that the story that Nank was telling was in fact true, or substantially true, that then my position would be that we should go back to the Court and offer to enter a plea with the understanding that the death penalty not be imposed, and then if the memory is refreshed and his recollection of events is sustained after the sodium amytal has worn off, that then he would testify fully as to what his extent of participation was in the crime, and to avoid what I thought was the prosecution's most severe objection, and that is that he was entering a plea and saying he was innocent, and that this would allow him to get out. Now I know that the State indicated before that they thought he should be hung. I don't know what the State's position is. Now Mr. Coleman will be returning to Miles City, according to Dr. Harr, sometime around eleven o'clock. I intended to immediately confer with him. Doctor Harr has called me already this morning, and from the information I have received, it appears that my client's memory has been refreshed and there was participation on his part in the crime. Therefore, my function I believe, is to try to accomplish and make arrangements with the State and with the Court to save my man's life, and also it presents a personal problem and personal dilemma to me that would mean if we have to continue with the trial with my feelings of what Dr. Harr told me, and that if that's true, it will be very difficult to continue in the defense and to argue the case. Now that's a personal dilemma that I have.

The Court: That may be a personal dilemma, but it's an obligation that you'll have to go through with. So your client now makes the same proposition to the State as Nank has?

Defense Counsel: Yes, he would.

No agreement or understanding was reached at the July 2nd hearing. When court was convened the next day, Coleman was present. His counsel referred to the sodium amytal examination and stated that Coleman would plead guilty "under the same terms and conditions as has been accepted by the State with regard to Mr. Nank." The State refused to accept from Coleman the same plea bargain which had been made with Nank. The prosecutor stated he was concerned about Coleman challenging the voluntariness of his plea at a later time. He stated there were circumstances When Coleman's proposed plea bargain was rejected by the state, his counsel requested to be relieved. He stated that although he could defend Coleman on the aggravated kidnapping charge, there was "no way in the world I can state to the jury that he is innocent of deliberate homicide and that he's innocent of sexual intercourse without consent." The trial court denied the motion, but the Montana supreme court subsequently relieved Coleman's counsel and appointed new counsel to represent him. Coleman's new counsel took over his representation unaware of the proceedings which had taken place on July 2 and 3. ¹

in Coleman's case which made it significantly different from Nank's. He stated these included the fact that claims had been made in Coleman's case that his attorney was incompetent and that a change of venue to avoid prejudice had not been a sufficient change to avoid such prejudice. He also pointed to Coleman's previous assertion of an insanity defense (which Coleman had later waived), and to the possibly unreliable sodium amytal procedure which had prompted Coleman to offer a guilty plea.

Trial began in October 1975. Coleman and Nank both testified. They had met one another at the Veterans Hospital in Sheridan, Wyoming. Coleman was being treated for depression. Nank had a history of mental illness. They were discharged from the Veterans Hospital and traveled to Montana on Nank's motorcycle. They ran out of gas between Roundup and Forsyth during the evening hours of July 4, 1974 and decided to hitchhike. From this point on their stories differed.

Coleman testified that he and Nank had been unsuccessful in their attempt to hitchhike, but that Nank was...