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 |
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.
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.
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 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?
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....
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 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.
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
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...
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