Austad v. Risley

• Decision Date: 23 May 1985
• Docket Number: No. 83-3933,83-3933
• Citation: 761 F.2d 1348
• Parties: Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellers, Respondents-Appellees, and Attorney General Mike Greely, Additional Respondent and Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1348

761 F.2d 1348

Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellers, Respondents-Appellees and Attorney General Mike Greely, Additional Respondent and Appellee.

No. 83-3933.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 13, 1984.

Decided May 23, 1985.

Curtis C. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for petitioner-appellant.

Margaret M. Joyce Johnson, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.

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

Before BROWNING, Chief Judge, WALLACE, ANDERSON, HUG, TANG, SKOPIL, ALARCON, POOLE, NELSON, BOOCHEVER, and BEEZER, Circuit Judges.

POOLE, Circuit Judge.

Gene Austad was convicted by a jury in a Montana state court of deliberate homicide, robbery, sexual intercourse without consent and aggravated burglary. He was sentenced to life imprisonment on the conviction of deliberate homicide, and to consecutive forty year terms on each of the other three charges. After exhausting his state remedies, Austad filed a petition for writ of habeas corpus in the district court claiming that he had been denied a fair trial because the great volume of pretrial publicity created an environment of hostility which made it impossible to obtain an unbiased jury in the area of Great Falls, Montana. The petition alleged a number of constitutional deficiencies which the district court reviewed, all of which were denied. Austad has appealed only the order denying his claims involving the change of venue and the ruling that he was mentally fit to stand trial.

Specifically Austad argues that the district court's findings that he was not denied a fair trial due to prejudicial publicity are insufficient because the court did not make an independent examination of the exhibits in the state court record which included the publicity.

The crimes charged all took place on April 21, 1978, but because of severe injuries which Austad sustained while fleeing from the police, and because of various pretrial delays, his trial did not take place until almost two years later. The petition contends that the pervasive news coverage following commission of the offenses made it impossible to receive a fair trial by jury even with the passage of time, and therefore due process required that there be a change of venue. The district court considered this constitutional challenge in light of the whole state court record presented and found that Austad had not been denied trial by an impartial jury. The district judge noted that the state trial court had granted Austad individual voir dire examination and, on its own motion, had excused any juror who expressed reservations about the ability to accord the accused the benefit of the presumption of innocence. The voir dire proceedings took up some 2,000 pages of transcript over 21 trial days. Counsel and the court questioned 93 prospective jurors and every person finally seated as a trial juror or as an alternate was passed for cause. The district judge concluded that the procedures adopted by the trial judge were reasonably calculated to reveal any hostility or prejudice and that Austad had not shown that those factual determinations were not thoroughly supported by the record, and that his trial had been fair. A divided panel of this court affirmed the district court. See 739 F.2d 428 (9th Cir.1984). We granted the petition to rehear this case en banc, and withdrew the original opinion. See 743 F.2d 739 (9th Cir.1984).

We affirm.

Presumption of Correctness

As a threshold matter, we must determine whether the findings of the state court challenged in a habeas proceeding are factual in nature. If they are, 28 U.S.C. Sec. 2254(d) requires a federal habeas court to accord such findings a presumption of correctness unless the petitioner establishes certain defects to overcome the presumption. 28 U.S.C. Sec. 2254(d). In this appeal Austad challenges the findings of the state trial court that he was fit to stand trial and that the jurors who tried him were impartial and not biased by prejudicial pretrial publicity.

The Supreme Court has clearly established that the determination of a juror's partiality or bias is a factual determination to which section 2254(d)' § presumption of correctness applies. "[I]t is plainly [an issue] of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton v. Yount, --- U.S. ----, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).

The determination of Austad's fitness to stand trial is also a factual determination. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). Section 2254(d)'s presumption of correctness applies here as well.

Fitness to Stand Trial

Austad claimed that he was not mentally fit to stand trial because he sustained head injuries as a result of a high speed police chase which left him with residual brain damage. He claimed also to be suffering from amnesia and pain and having difficulty in communicating with his counsel. A comprehensive pretrial hearing inquiring into Austad's mental condition was conducted by the state court. The court compiled a voluminous record of testimony including that of an internist, a neurologist, a clinical psychologist, and a psychiatrist. Austad, his mother, and one of his lawyers also testified. The state court found him fit to stand trial according to the federal standards set out in Dusky, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 and that finding was affirmed by the Montana Supreme Court in State v. Austad, 197 Mont. 70, ---, 641 P.2d 1373, 1379 (1982).

Giving to the trial court's findings of mental fitness the deference due under 28 U.S.C. Sec. 2254(d) and Sumner v. Mata 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the district court found no denial of due process. Austad had not overcome the presumption of correctness of the state court's determination.

Burden of Production of State Record

Austad seeks a new habeas corpus hearing because, although the district judge had before him for review the entire transcript of the voir dire proceedings, he did not have and did not review the 92 newspaper clippings and tapes or transcripts of radio and television newscasts which were submitted in the state proceedings as exhibits and which constitute the pretrial publicity of which Austad complains. Austad did not himself produce the exhibits, nor did he request the district court to order their production, or to expand the record to include them as is permitted under Rule 7 of the Rules Governing Sec. 2254 Cases in the United States District Courts. Instead, he bases his claim of error upon our decision in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982) (per curiam), rev'd on other grounds, --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), which he construes as requiring automatic reversal and remand so that the district judge may examine the missing exhibits to determine the sufficiency of the trial court's ruling concerning the obtaining of an impartial jury in the vicinage of Great Falls, Montana, at the time of trial. See also Bashor v. Risley, 730 F.2d 1228 (9th Cir.) cert. denied, --- U.S. ----, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). The state responds that it was the petitioner's duty under 28 U.S.C. Sec. 2254(d) to establish by convincing evidence that the factual determinations of the state court which he challenges were erroneous and to present any part of the record necessary to support his case.

We took this case en banc to reconsider whether a federal court, reviewing a habeas corpus petition under 28 U.S.C. Sec. 2254, is required sua sponte to call up for independent review specific portions of a state court record pertinent to the petitioner's claim where the petitioner has neither produced them nor shown himself unable to do so. In particular, our question is whether the district court had a duty in Austad's case to order production of the pretrial publicity exhibits from the state court where the petitioner did not claim an inability to produce them.

In Harris v. Pulley the petition alleged, as does Austad here, that pervasive pretrial publicity and the trial court's denial of his motion for change of venue made a fair trial impossible and denied him due process. The district court on habeas corpus agreed with the Supreme Court's conclusion that the pretrial publicity had not required a change of venue and had not resulted in denial of a fair trial. Harris had not produced any of the articles or broadcasts; nor, unlike Austad's case, had the district court examined the transcript of the voir dire examination. The Harris court held that

Unless it is shown that the district court examined all relevant parts of the state court record, this court cannot affirm a district court's judgment dismissing a habeas petition. (Citation omitted.)

692 F.2d at 1199-1200. The court stated that, when a petitioner alleges prejudicial pretrial publicity, "the relevant parts of the state court record include, at a minimum, copies of the newspaper articles and, if available, any transcripts of television and radio broadcasts." Id. at 1200. Citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), the per curiam court stated flatly that "the district court should, if necessary, request and examine all relevant parts of the state court record to determine whether the record supports the state court's findings." Id. While acknowledging that the Supreme Court's decision in Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), "requires a federal court in a habeas proceeding generally to accord a statutory presumption of correctness of state court findings," the Harris court said, "but such a presumption is not...