Bashor v. Risley
| Decision Date | 07 February 1984 |
| Docket Number | No. 82-3293,82-3293 |
| Citation | 730 F.2d 1228 |
| Parties | Howard L. BASHOR, Petitioner-Appellant, v. Henry RISLEY, Warden of Montana State Prison; and Michael Greely, Attorney General for the State of Montana, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barbara Harbinson, Oakland, Cal., for petitioner-appellant.
Dorothy McCarter, Helena, Mont., for respondents-appellees.
Appeal from the United States District Court for the District of Montana.
Before FLETCHER and ALARCON, Circuit Judges, and WATERS *, District Judge.
Appellant Howard L. Bashor (Bashor), a Montana prisoner, petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254. The district court, 539 F.Supp. 259, denied the petition. Bashor appeals. We affirm.
Appellant Bashor was convicted of deliberate homicide following a jury trial in a Montana state court. It is undisputed that James Hurley died of a gunshot wound inflicted by the appellant on December 3, 1977 in Kevin, Montana. There are differing versions of the events that led to Hurley's death.
The state presented evidence at trial that on the evening of December 2, 1977, Hurley, Marian Irgens, Duane Enneberg, and Jeanette Frost visited Bert's Bar in Kevin. During the evening, Irgens twice noticed Bashor's car being driven down the road adjacent to the bar. At approximately 1:30 a.m. on the morning of December 3, the group decided to leave the bar. As they left, Bashor's vehicle was observed parked a short distance away from the bar with its headlights on. Bashor's friend, William Schaeffer, was standing in front of the vehicle. Schaeffer shouted at the group. Hurley and Enneberg approached Bashor's vehicle. Schaeffer confronted Enneberg in front of the vehicle. Hurley proceeded toward the driver's window. Bashor was seated in the driver's seat. Within seconds, a shot was heard and Hurley walked away from the vehicle saying, "I've had it." He died shortly thereafter.
Bashor testified that, upon arriving at Bert's Bar, he noticed Hurley's vehicle parked outside the bar. He decided not to go inside until Hurley and his friends had left. Schaeffer was sitting in the passenger's seat of Bashor's vehicle.
Bashor said Hurley left the bar and entered his vehicle. Thereafter, Hurley and Duane Enneberg left Hurley's vehicle and approached Bashor's vehicle. Bashor rolled down his window and told Hurley to go away. Hurley grabbed Bashor by the throat and one arm in an attempt to force Bashor out of the vehicle.
Bashor's left eye had been operated on to remove a cataract and implant a plastic lens. Bashor feared that any blow to his head would dislocate the lens, permanently damaging his eye. Bashor reached for his pistol, which was in a compartment between the front seats of the vehicle. The struggle continued until the gun went off.
After being picked up by the police, Schaeffer underwent a polygraph examination. His answers were to the effect that Hurley had been the aggressor in the altercation. The operator of the polygraph stated in a deposition that he was satisfied that Schaeffer's answers were truthful. The state filed a motion in limine seeking to prohibit Bashor from entering the results of Schaeffer's polygraph examination into evidence. The motion was granted.
Bashor moved for a change of venue based on inflammatory pretrial publicity and general bias against him in Toole County, Montana. The judge reserved his ruling on the motion pending the outcome of the voir dire examination of the jury. At the conclusion of voir dire, the judge denied Bashor's motion.
The jury returned a verdict of guilty of deliberate homicide. Bashor was sentenced to Montana State Prison for a term of thirty years, with ten years suspended. On appeal, the Montana Supreme Court affirmed Bashor's conviction. State v. Bashor, 614 P.2d 470 (Mont.1980) (3-2 decision). On July 17, 1981, Bashor filed a petition for post-conviction relief in the Montana Supreme Court, which was denied on October 19, 1981.
Having exhausted his state remedies, Bashor filed a petition for a writ of habeas corpus in the United States District Court. Bashor was granted leave to proceed in forma pauperis. The district court denied Bashor's motion for appointment of counsel. The district court ordered an expansion of the record to include a copy of the jury instructions. Bashor's petition was denied.
"State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). If the petitioner has a proper claim then "even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question." Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981) (Sumner I). Nevertheless, 28 U.S.C. Sec. 2254(d) limits this authority by mandating a presumption that the factual determinations of the state courts are correct. This presumption is rebutted or inapplicable when one of the seven specified factors showing a denial of due process is present (Sec. 2254(d)(1)-(7)) or the federal court determines that the state's findings are not fairly supported by the record (Sec. 2254(d)(8)). Sumner v. Mata 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982) (Sumner II).
It appears from the record that Bashor did receive due process of law in the state court proceedings and that the state's findings are fairly supported by the record. We therefore, will accord the state's factual findings the required presumption of correctness, as did the district court. 1
Bashor has set forth numerous grounds for relief. We consider each contention and its pertinent facts under separate headings.
Bashor contends that the federal district court should have granted him an evidentiary hearing on his claims of: (1) insufficiency of the evidence, (2) erroneous admission of evidence of threats made by Bashor to Irgens, (3) ineffective assistance of counsel, and (4) improper jury instructions on self-defense. To be entitled to an evidentiary hearing, we must determine (1) whether petitioner's allegations, if proved, would establish the right to relief, and (2) whether the district court was required to hold an evidentiary hearing to ascertain facts to establish the truth of the allegations. Townsend v. Sain, 372 U.S. at 309, 83 S.Ct. at 755; Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1425, 75 L.Ed.2d 787, and cert. denied, --- U.S. ----, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983). We have determined that a federal evidentiary hearing was not required. Although petitioner's allegations, if proved, would entitle him to relief, there is no need for a federal evidentiary hearing to ascertain facts to support those allegations.
The issues of admissibility of evidence and propriety of jury instructions were given a full hearing by the state court. A federal evidentiary hearing was not required on those issues. Townsend v. Sain, 372 U.S. at 312-13, 83 S.Ct. at 756-57 (). Whether the evidence was sufficient to support the verdict must be determined from a review of the evidence in the record in the state proceedings. No evidentiary hearing was required on this issue before the federal district court.
An evidentiary hearing is sometimes necessary to determine whether assistance of counsel was effective. See Sober v. Crist, 644 F.2d 807, 808 (9th Cir.1981) (); Miller v. McCarthy, 607 F.2d 854, 857 (9th Cir.1979) (). Bashor claims that his trial counsel (1) failed to elicit exculpatory testimony, (2) failed to object to testimony offered at trial that had already been ruled inadmissible, and (3) failed to request an instruction on lesser included offenses. The state court records for this case are adequate to review these allegations of ineffectiveness. (See discussion on effectiveness of counsel.) A federal evidentiary hearing was not required to resolve the question of the competency of counsel.
In a memorandum attached to his petition, Bashor argued that a courtroom outburst at trial demonstrated that the trial was conducted in such a hostile atmosphere that he should have been granted a change of venue. Bashor failed to set forth in his petition for a writ of habeas corpus or in the memorandum any facts concerning the alleged courtroom outburst or supporting the conclusion that he was tried in a hostile community. A federal district court is not required to grant an evidentiary hearing where the allegations in the petition are "conclusory and wholly devoid of specifics." Boehme v. Maxwell 423 F.2d 1056, 1058 (9th Cir.1970). A habeas corpus petitioner seeking an evidentiary hearing must allege actual facts which if proved would entitle him to relief. Townsend v. Sain, 372 U.S. at 312, 83 S.Ct. at 756; 28 U.S.C. Sec. 2242.
In the absence of the allegation of any facts, the district court could only speculate about the nature of the "courtroom outburst". The district court did not err in refusing to hold an evidentiary hearing where no facts were pleaded from which it could be inferred that the petitioner was tried before a hostile jury or that the courtroom disturbance had a prejudicial impact on his constitutional rights.
Bashor contends that the district...
To continue reading
Request your trial
-
George v. Almager
...of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir.1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The interests of justice require appointment of counsel when the court conducts an evidentiary hearing on the petition. Terr......
-
Arellano v. Harrington, No. CIV S-10-2684 DAD P
..."'in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). If the court finds constitutional error, it must apply the test for harmless error to determine whether the error had a "'sub......
-
Lam v. Dickinson, No. CIV S-10-0829 EFB P
..."'in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where, as here, the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy......
-
Fernandez v. W L Montgomery
...habeas corpus proceeding." Solis v. Garcia , 219 F.3d 922, 929 (9th Cir.2000) (alteration in original) (quoting Bashor v. Risley , 730 F.2d 1228, 1240 (9th Cir.1984) ); see also Beck v. Alabama , 447 U.S. 625, 638, n. 14, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (expressly reserving decision o......
-
State v. Grier and the Erroneous Adoption of the "punishment-based" Standard of Review for Ineffective Assistance of Counsel Claims Based on All-or-nothing Strategies
...construction of strategic alternatives cannot be the sole basis for finding constitutional deficiency."). 61. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) ("With the benefit of hindsight we know that this [all-or-nothing] strategy was incorrect; however, it did not constitute ineff......