English v. U.S.
| Decision Date | 21 November 1994 |
| Docket Number | Nos. 91-16442,91-16500 and 92-15368,s. 91-16442 |
| Citation | 42 F.3d 473 |
| Parties | Patrick ENGLISH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Derek TANO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Lutrell DAVIS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Ashford Thompson, Honolulu, HI, for plaintiff-appellant English and for plaintiff-appellee Davis.
Suzanne Terada, and Richard S. Kawana, Honolulu, HI, for plaintiff-appellant Tano.
Louis A. Bracco, Asst. U.S. Atty., Honolulu, HI, for the defendant-appellee in English and the defendant-appellant in Davis.
Appeals from the United States District Court for the District of Hawaii.
Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges.
Opinion by Judge REINHARDT; Concurrence by Judge BROWNING.
Introduction
This case forces us to attempt to make some sense of the procedural morass that surrounds habeas corpus. In all three cases, a United States magistrate presided over voir dire without the consent of the defendants. While the cases were still pending on direct appeal, the Supreme Court in Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), held that it is per se reversible error for a magistrate to preside over jury selection in a felony trial without the defendant's consent. Subsequently, each defendant sought review in the Supreme Court, but none of the petitions for certiorari raised a Gomez claim. Instead, the defendants' attorneys chose to pursue the issue in petitions for collateral relief under 28 U.S.C. Sec. 2255. Although the petitioners would clearly prevail on the merits, the government argues that we must overlook the reversible error that transpired simply because their attorneys raised their Gomez claims in Sec. 2255 rather than certiorari petitions. Because, under the law of this circuit (at least as of the time of the purported procedural defaults in this case), there was no rule requiring the petitioners to raise their Gomez claim on direct appeal, we must reach the merits of their petitions. Accordingly, we reverse the judgments of the district court which rejected English's and Tano's petitions, and we affirm the judgment of the district court which granted Davis's petition.
In this consolidated appeal, English and Tano appeal from the judgment of the district court (per Judge Tashima) which denied their Sec. 2255 petitions. The government appeals from the judgment of the district court (per Judge Rosenblatt) which granted Davis's Sec. 2255 petition.
In February of 1988, Patrick English and Derek Tano were tried on cocaine distribution and conspiracy charges in the United States District Court for the District of Hawaii. A federal magistrate presided over the selection of the jury for the defendants' trial, a practice which we had previously upheld on at least two occasions. See United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986). Neither English nor Tano objected to the magistrate's role in the voir dire procedure. The defendants were each convicted on one count. The district court sentenced English to eight years imprisonment and Tano to three years.
English and Tano both took direct appeals from the district court's judgment. However, their briefs on appeal did not assert that the district court erred by allowing the magistrate to preside over voir dire. In an unpublished memorandum, this court affirmed English and Tano's convictions on May 12, 1989. One month later, on June 12, 1989, the Supreme Court held in Gomez that it is per se reversible error for a magistrate to preside over jury selection in a felony trial. English filed a petition for certiorari in the Supreme Court on July 7, 1989, and Tano filed a certiorari petition on July 21. Neither petition raised the Gomez issue, and both petitions were denied in early October.
On September 29, 1989, while his petition for certiorari was pending, English filed a motion raising the Gomez claim in the district court under 28 U.S.C. Sec. 2255. On October 10, the district court issued an order staying English's Sec. 2255 proceedings pending completion of his direct appeal. The order stated:
Although a Sec. 2255 motion may be made "at any time," prudence alone, if not technical exhaustion requirements, dictate that the motion be held in abeyance pending final determination of defendant's direct appeal. For example, it is possible that the Supreme Court may summarily remand for reconsideration in light of Gomez. Or, even if certiorari is denied, the Ninth Circuit may favorably entertain a motion to recall the mandate in light of its own subsequent decision in France.
When the district court filed its order, it was understandably unaware that the Supreme Court had just denied English's petition for certiorari.
On October 31, 1989, Tano filed a Sec. 2255 petition which raised the Gomez claim. Adhering to a procedure similar to the one it had followed in addressing English's petition, the district court entered an order holding Tano's Sec. 2255 proceedings in abeyance pending the completion of his direct appellate remedies. Specifically, the district court ordered Tano to file in this court a motion to recall the mandate in his direct appeal:
Although a Sec. 2255 motion may be made "at any time," prudence dictates that the motion be held in abeyance and petitioner be required to file with the Ninth Circuit a motion to recall the mandate in petitioner's direct appeal, in the light of its own subsequent decision in France.
Neither English nor Tano filed a motion to recall the mandate in this court. 1 The district court deferred submission of English's and Tano's petitions pending the Supreme Court's decisions in United States v. France, 498 U.S. 335, 111 S.Ct. 805, 112 L.Ed.2d 836 (1991) (per curiam) (), and Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). On September 9, 1991, it denied both petitions. See United States v. English, 777 F.Supp. 791 (D. Hawaii 1991). The district court held that English and Tano had defaulted on their Gomez claims by failing to object to the voir dire procedure at trial, on direct appeal, or in a motion to recall the mandate. It further held that the petitioners had shown neither cause nor prejudice to excuse those defaults. English and Tano filed timely appeals.
In January of 1988, Lutrell Davis was tried in the United States District Court for the District of Hawaii, on charges of mailing threatening communication and threatening to assault or murder a federal judge. A federal magistrate presided over jury selection, and Davis did not raise any objection to the procedure. The jury convicted Davis, and the district court sentenced him to 20 years imprisonment.
Davis appealed, but he did not claim on appeal that the district court erred in allowing the magistrate to preside over voir dire. On May 31, 1989, this court affirmed Davis's conviction. See United States v. Davis, 876 F.2d 71 (9th Cir.1989). Less than two weeks later, on June 12, 1989, the Supreme Court issued its decision in Gomez. Davis filed a petition for certiorari on July 31, 1989. His petition did not contain a Gomez claim. The Supreme Court denied the writ of certiorari on October 2, 1989.
On September 29, 1989, before the Supreme Court had denied his petition for certiorari, Davis filed in the district court a motion for a new trial under 28 U.S.C. Sec. 2255. He alleged that the district court had committed reversible error by delegating jury selection in his case to a federal magistrate. 2 The district court granted Davis's petition on January 17, 1992. It held that Davis's failure to raise the Gomez claim on direct review or in a motion to recall the mandate was excused because (1) a consistent line of Ninth Circuit authority prior to Gomez made any objection to the voir dire procedure futile; (2) Davis could not have raised this issue for the first time in his petition for certiorari; and (3) this court's procedures following the Loma Prieta earthquake prevented Davis from moving to recall the mandate. The district court also held that the procedural default rules set forth in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), do not apply here, because Davis filed his Sec. 2255 petition before his conviction was final on direct appeal. The government filed a timely appeal.
The claim asserted by English, Tano, and Davis is a simple one: that the district court committed reversible error by allowing a magistrate judge to preside over voir dire at their trials without their consent. After Gomez, this claim is clearly meritorious. If we may reach the merits of the claim, we must direct the district court to vacate the verdicts and grant English, Tano, and Davis new trials. The government does not contest these facts. 3 The government simply argues that the defendants procedurally defaulted their Gomez claims when their attorneys decided to raise the claims in the district court on motions for Sec. 2255 relief, rather than raising them for the first time in petitions for certiorari in the Supreme Court or in motions to recall the mandate. The government further contends that English, Tano, and Davis have not shown cause and prejudice to excuse their purported defaults, and thus that the district court had no discretion to consider their claims. We conclude that English, Tano, and Davis did not default on their claims. ...
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