Coleman v. McCormick
| Decision Date | 05 May 1989 |
| Docket Number | No. 85-4242,85-4242 |
| Citation | 874 F.2d 1280 |
| Parties | Dewey E. COLEMAN, Petitioner-Appellant, v. Jack McCORMICK, 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 |
Timothy K. Ford, Seattle, Wash., Henry T. Greely, Stanford, Cal., for petitioner-appellant.
Patricia J. Schaeffer, Asst. Atty. Gen., State of Mont., Helena, Mont., for respondents-appellees.
Appeal from the United States District Court for the District of Montana.
Before GOODWIN, Chief Judge, and WALLACE, HUG, TANG, FLETCHER, ALARCON, CANBY, REINHARDT, NOONAN, THOMPSON and TROTT, Circuit Judges.
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. Sec. 2254. We reverse his sentence of death and remand for resentencing.
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 for Thereafter, Coleman filed a petition with the state court for post-conviction relief. His judgment and sentence 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, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (Coleman III ).
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 unconstitutional. Coleman I, 177 Mont. 1, 579 P.2d at 741-42. Coleman's death sentence was vacated and his case was remanded to the trial court for resentencing. 2 Coleman was then resentenced to death in 1978 under a new Montana death penalty statute which had been enacted in 1977. Mont.Code Ann. Secs. 95-2206.6 to 95-2206.15 (now codified at Mont.Code Ann. Secs. 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. Secs. 95-2206.12 to 95-2206.15. The court upheld his convictions and sentences. State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979) (Coleman II ), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980); Coleman v. Sentencing Review Division of Supreme Court of Montana, 449 U.S. 893, 101 S.Ct. 255, 66 L.Ed.2d 121 (1980) (vacating stay of execution of death sentence and denying certiorari )
Coleman then filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the United States District Court for the District of Montana. This proceeding was stayed to enable Coleman to exhaust his state remedy for review of his convictions and death sentence in light of a recent discovery by his then counsel of a transcript 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 pretrial hearing was the same judge who later sentenced Coleman to death. Coleman's convictions and death sentence were once again reviewed and affirmed by the Montana Supreme Court. Coleman v. Risley, 203 Mont. 237, 663 P.2d 1154 (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 summary 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, denied his motion for summary judgment, and granted summary judgment in favor of the State.
THE CONVICTION
Jury Selection
Coleman challenges his convictions on the ground that his sixth amendment right to an impartial jury was violated. He contends 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 telephoning 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 indicated 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.
hisjury panel was selected in an impermissibly discretionary manner. 3
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 contends that he is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, 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, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).
(1) [T]hat the group alleged to be excluded is a 'distinctive' group in the community;
(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 systematic 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, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).
Coleman contends that as a result of the jury selection 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 socioeconomic 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, 99 S.Ct. at 668; see Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (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 "distinctive" group, Coleman's claims that such a group was underrepresented in jury venires or was systematically excluded in the jury selection process also fail.
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 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. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). There, 200 to 300 jurors were selected...
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