979 F.2d 746 (9th Cir. 1992), 91-16012, Thomas v. Goldsmith

Docket Nº:91-16012.
Citation:979 F.2d 746
Party Name:Shelton R. THOMAS, Petitioner-Appellant, v. Bob GOLDSMITH, Respondent-Appellee.
Case Date:November 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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979 F.2d 746 (9th Cir. 1992)

Shelton R. THOMAS, Petitioner-Appellant,

v.

Bob GOLDSMITH, Respondent-Appellee.

No. 91-16012.

United States Court of Appeals, Ninth Circuit

November 10, 1992

Submitted March 12, 1992[*]

Page 747

Shelton R. Thomas, pro per.

Diane M. Ramsey, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellees.

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

Before: REINHARDT, NOONAN, and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

Shelton R. Thomas, an Arizona state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus. We affirm in part, reverse in part and remand.

I. FACTS

Thomas was convicted in 1981 in Arizona state court of four counts of sexual assault and one count of burglary. Before trial, his counsel requested a hearing on the voluntariness of certain of Thomas' statements to the police. His attorney later abandoned the argument that the statements were not voluntary, and instead, asked that the hearing be held for the sole purpose of establishing what Thomas had said to the police. This request was granted. Thomas was not present when the first two officers were questioned, but at the suggestion of his counsel, was brought to the courtroom for the third officer's testimony.

At trial, Thomas contended for the first time that he had been at a movie theater when the crimes took place. The state had not previously known that he would offer this alibi. The morning after Thomas testified, the state disclosed that it would call the theater manager in rebuttal. The trial judge allowed the rebuttal testimony but required that defense counsel be allowed to interview the witness before he testified.

Thomas was convicted. He appealed his convictions and sentence to the Arizona Court of Appeals, which affirmed the convictions and remanded for resentencing. After resentencing, Thomas again appealed the sentence. This time the court of appeals affirmed. Thomas did not petition the Arizona Supreme Court for review. He subsequently filed two petitions for post-conviction review, which the Arizona courts denied.

Thomas then filed a federal petition for habeas corpus, alleging seven grounds for

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relief. The district court found that five of them were barred by state procedural defaults. The court decided the remaining two against Thomas on the merits. Thomas appealed.

II. GROUNDS DECIDED BELOW ON THE MERITS

A. Surprise witness. Thomas contends that the prosecution gave him inadequate notice that it intended to call a witness to rebut his alibi defense, and that the trial court's decision to admit the rebuttal testimony violated due process. LaMere v. Risley, 827 F.2d 622 (9th Cir.1987), is dispositive. In LaMere, the defendant called alibi witnesses who surprised the prosecution by testifying as to the defendant's location not only on the day of the crime--as the prosecution had expected--but on the preceding day as well. See id. at 625. Immediately after the surprise testimony, the prosecution notified defense counsel that it intended to offer rebuttal testimony as to the defendant's whereabouts on the day before the crime. The trial court permitted the rebuttal testimony over the defendant's objections, but gave defense counsel an opportunity to interview the government's witnesses and prepare for cross-examination before they testified.

Because the prosecution notified the...

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