Hanson v. Mahoney, 02-35795.
| Decision Date | 18 July 2003 |
| Docket Number | No. 02-35795.,02-35795. |
| Citation | 338 F.3d 964 |
| Parties | Dale Michael HANSON, Petitioner-Appellant, v. Mike MAHONEY, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Ness, Assistant Federal Defender, Helena, Montana, for the petitioner-appellant.
Carol E. Schmidt, Assistant Attorney General, Helena, Montana, for the respondent-appellee.
Appeal from the United States District Court for the District of Montana; Leif B. Erickson, Magistrate, Presiding. D.C. No. CV-00-00049-LBE.
Before: Betty B. FLETCHER, Melvin BRUNETTI, and M. Margaret McKEOWN, Circuit Judges.
Opinion by Judge Betty B. Fletcher.
Dale Michael Hanson, whose petition for a writ of habeas corpus challenging his Montana conviction for sexual assault and deviate sexual conduct was dismissed by a magistrate judge, brings two issues before this court. First, he contends that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253 and, therefore, he asks this court to rule that his request for a COA must be returned to the district court for consideration by an Article III judge. Second, he contends, in the alternative, that the magistrate judge erred in holding that he procedurally defaulted his claim that the state trial court's instruction on unanimity was defective under State v. Weaver, 290 Mont. 58, 964 P.2d 713 (1998). Because we hold that magistrate judges are authorized to issue COAs, and we agree that Hanson's claim for relief is procedurally defaulted, we affirm.1
Hanson was convicted in Montana of sexual assault and deviate sexual conduct in 1995. At trial, the district court instructed the jury that a unanimous verdict was required to convict Hanson, but did not specify that unanimous agreement as to at least one underlying sex act was necessary to support a conviction on each charge.
On appeal with new counsel, Hanson raised a number of issues for the first time, and he contended that his trial counsel had been ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to raise them below. Hanson, however, raised no claim that the jury instructions on unanimity were deficient. The Montana Supreme Court rejected his claims of trial error and held that his counsel had not been ineffective under Strickland. State v. Hanson, 283 Mont. 316, 940 P.2d 1166, 1174 (1997).
After the Montana Supreme Court issued its disposition of Hanson's direct appeal, it reversed another defendant's conviction for a similar crime on direct appeal. The court held that the trial court committed plain error by not instructing the jury "that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information." Weaver, 964 P.2d at 717.
Hanson filed a petition for state collateral review. He was assisted by Ed Sheehy, an attorney under contract with the Montana Department of Corrections to help prisoners with appeals and petitions for post-conviction relief. Sheehy ghost-wrote Hanson's petition and briefs. Hanson raised claims of ineffective assistance of counsel, and because of Sheehy's assistance, he added a claim under Weaver challenging the jury instructions.
The Montana Supreme Court dismissed the petition. See State v. Hanson, 296 Mont. 82, 988 P.2d 299 (1999). It held that Hanson's claim of instructional error was barred under Mont.Code Ann. § 46-21-105(2), which provides in pertinent part that "[w]hen a petitioner has been afforded the opportunity for a direct appeal of the petitioner's conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under this chapter." The Montana Supreme Court explained that the cases on which the appellant in Weaver had relied had been decided before Hanson's direct appeal and that Hanson was aware of the applicability of the plain error doctrine to his case because he had argued that the trial court had committed plain error on grounds other than the unanimity instruction. Hanson, 988 P.2d at 300-01. The Montana Supreme Court explicitly declined to reach Hanson's claim that he was entitled to retroactive relief under Weaver notwithstanding § 46-21-105, because to reach the merits of the claim would frustrate the consistent application of the statutory bar. Id. at 301.
Hanson, acting pro se, filed a timely petition for habeas corpus in federal district court. He claimed that under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), he was entitled to the retroactive application of the unanimity instruction required by Weaver; and that he was entitled to relief based on his trial counsel's ineffective assistance. A magistrate judge, Leif Erickson, determined that Hanson's claim for relief under Teague and Weaver was procedurally barred as was part of his claim of ineffective assistance of counsel. Magistrate Judge Erickson appointed counsel for Hanson, and the parties consented "to have a U.S. Magistrate Judge conduct any and all further proceedings in the case, including trial, order the entry of a final judgment, and conduct all post judgment proceedings." The case was duly assigned to Magistrate Judge Erickson.
In a reasoned order, Magistrate Judge Erickson denied Hanson's motion to reconsider his ruling that the claim under Teague and Weaver and some of Hanson's ineffective assistance of counsel claims were defaulted. In a second reasoned order, the magistrate judge dismissed Hanson's remaining claims of ineffective assistance of counsel on the merits and, after addressing Hanson's renewed arguments regarding procedural default, entered final judgment in the case.
Hanson filed a timely notice of appeal and asked that an Article III judge consider his request for a COA. Magistrate Judge Erickson denied Hanson's motion to have his request for a COA considered by a district judge and held that because the parties consented to his adjudication of post-judgment proceedings, he had the authority to adjudicate the request for a COA. The magistrate judge, upon consideration of the merits of Hanson's request, issued a COA as to the unanimity claim and denied one as to the claims of ineffective assistance of counsel.
Hanson contends that magistrate judges are not authorized to issue COAs.2 We disagree.
We begin our analysis with the scope of authority that Congress conferred on Magistrate Judges. "Congress intended magistrates to play an integral and important role in the federal judicial system." Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir.2003) (en banc).
Issuing a COA is within the scope of the authority granted to magistrate judges under the Federal Magistrates Act. The Magistrates Act permits magistrate judges to conduct all proceedings in civil cases if the parties consent: "Upon consent of the parties, a ... United States magistrate judge ... may conduct any or all proceedings in a jury or non-jury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves." 28 U.S.C. § 636(c)(1).3 The statute affirmatively states that "an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court." 28 U.S.C. § 636(c)(3). Here, the state and Hanson consented to the magistrate judge's adjudication of "any and all further proceedings in the case, including trial, order the entry of a final judgment, and ... all post judgment proceedings." The decision to issue a COA is plainly a post judgment proceeding within the scope of the parties' consent, and it is clearly a "proceeding[] in a ... civil matter." See 28 U.S.C. § 2254.
Nothing in the statutes that govern the issuance of COAs mandates the contrary conclusion that a COA may be issued only by an Article III judge. Under 28 U.S.C. § 2253(c)(1), a "circuit justice or judge" must issue a COA before an appeal of a final order in a case under § 2254 may be taken. It is well settled that the phrase "circuit justice or judge" — though ambiguous — includes district judges as well as circuit judges. United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir.1997). Accord Dressler v. McCaughtry, 238 F.3d 908, 912 n. 3 (7th Cir.2001) (). The statute is silent as to whether the "judge" must be an Article III judge, and nothing in the phrase suggests that Congress intended the words "circuit justice or judge" to exclude magistrate judges when they act in a capacity otherwise authorized by the Magistrates Act.
The procedural requirements of the Federal Rules of Appellate Procedure similarly do not preclude magistrate judges from issuing COAs. Rule 22 provides in part that "[i]n a habeas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability." Fed. R.App. P. 22(b)(1). Although the list of judges does not include magistrate judges, there is no indication that it was intended to limit the scope of § 2253(c)(1). Indeed, the advisory committee note to the 1998 amendments that added the phrase "circuit justice or a circuit or district judge" to Rule 22 make clear that the phrase was inserted in the...
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Hanson v. State, DA 15–0352.
...was dismissed as procedurally defaulted. Hanson appealed the dismissal. The Ninth Circuit Court of Appeals affirmed in Hanson v. Mahoney, 338 F.3d 964 (9th Cir.2003).¶ 7 Represented by counsel, Hanson next petitioned for postconviction relief on August 13, 2012. He asked for a “hearing for ......
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Hanson v. Mahoney, 02-35795.
...18, 2003. In our decision, we affirmed the magistrate judge and concluded that magistrate judges can issue a COA. Hanson v. Mahoney, 338 F.3d 964, 967-69 (9th Cir.2003). In affirming the magistrate judge's decision that the Weaver rule was barred, we concluded that M.C.A. § 46-21-105 was cl......