Manlove v. Tansy

• Decision Date: 16 December 1992
• Docket Number: 91-2157,Nos. 91-2156,s. 91-2156
• Citation: 981 F.2d 473
• Parties: Lonnie K. MANLOVE, Petitioner-Appellee/Cross-Appellant, v. Robert J. TANSY, Warden for the New Mexico State Penitentiary, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 473

981 F.2d 473

Lonnie K. MANLOVE, Petitioner-Appellee/Cross-Appellant, v. Robert J. TANSY, Warden for the New Mexico State

Penitentiary, Respondent-Appellant/Cross-Appellee.

Nos. 91-2156, 91-2157.

United States Court of Appeals, Tenth Circuit.

Dec. 16, 1992.

Peter Schoenburg, Chief Asst. Federal Public Defender, Albuquerque, NM, for petitioner-appellee/cross-appellant.

Tom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, NM, for respondent-appellant/cross-appellee.

Before LOGAN, EBEL, and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Respondent Robert Tansy, Warden for the New Mexico State Penitentiary, appeals from an order granting petitioner Lonnie Manlove's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Manlove cross appeals, challenging the rejection of one of the grounds for his petition. The dispositive issue is whether the district court erred in concluding that the denial of Manlove's request for a continuance of the trial to obtain a witness violated his due process rights. We hold that the district court did not err. In light of this disposition, we do not reach the other two issues raised on appeal. Accordingly, we affirm the district court's order.

Manlove was charged with kidnapping, criminal sexual penetration, and aggravated assault. The prosecutrix testified that on the evening of February 4, 1979, she went for a walk at about 8:30 p.m. A car pulled up and a man jumped out, pointed a gun in her face, and told her to get in the car. He drove out of town and stopped, then forced her to perform oral sex at gunpoint. However, his attempt at sexual intercourse was unsuccessful. She was able to see his face when the car light came on. She testified that she had seen gloves and shirts in the car, and that she lost a pink comb in the car. She further testified that the inside door handle on her side of the car was missing. After the man dropped her off, she watched the car and tried to memorize its license plate number. She called the police, and gave them a description of her assailant, the car, and the license plate number. She identified Manlove as her assailant at the police station and at trial.

The arresting officers testified that they stopped Manlove in his car at approximately 11:55 p.m. that night. They seized a small handgun from under the driver's seat, and observed black gloves and clothes in the car similar to those described by the prosecutrix. A later search revealed the comb that the prosecutrix claimed she left in the car. Upon inventorying the car, a police officer discovered that the inside door handle on the passenger side was missing. No medical evidence was offered as the prosecutrix had not had a physical examination after the assault.

Trial commenced on Friday, July 6. At 3:30 p.m. on July 6, 1979, Manlove's attorney, Tom Cherryhomes, requested a continuance of the trial until the following Monday, July 9, because he had just learned that a witness who had promised to testify had instead left town. The witness, Elizabeth Pike, was the prosecutrix's roommate on the night of the assault. Pike would have testified that the prosecutrix had concocted stories in the past about being kidnapped, being picked up hitchhiking, and sometimes being molested; that the prosecutrix's statement to the police contained some of the exact language she had previously used to describe sexual fantasies; that the prosecutrix had recanted an abduction story once; and that the prosecutrix was the type of person who would willingly see an innocent man put in jail.

The district court denied the continuance for four reasons: 1) Cherryhomes failed to subpoena Pike within ten days after notice of the trial date, as required by local rule; ¹ 2) Cherryhomes should have telephoned the district attorney's office when he knew he intended to call Pike as a witness, rather than mailing notice; 3) the state had not had an opportunity to examine Pike before trial; and 4) the judge would be out of town the following Monday.

Manlove then presented an alibi defense through friends and family. He did not testify. The jury returned its verdict at 2:38 p.m. on Saturday, July 7, finding Manlove guilty as charged. Pike was served with a subpoena on Monday, July 9.

Manlove moved for a new trial. He submitted Pike's affidavit in which she stated that she had intentionally evaded service of process because she was fearful the prosecutrix would harm her or her animals if she testified. The motion was denied. Manlove filed an appeal as of right, raising as an issue whether denial of the continuance violated his right to due process. The New Mexico Court of Appeals concluded denial of the continuance was not an abuse of discretion because Cherryhomes was not diligent in having a subpoena issued for Pike at such a late date, and affirmed the conviction. Manlove did not seek review in the New Mexico Supreme Court.

Manlove unsuccessfully raised the continuance issue in post-conviction motions and a state habeas petition. The state court concluded in the habeas proceeding that the trial judge denied the continuance because he had plans to go fishing, but that Pike's testimony would have been inadmissible under New Mexico's Rape Shield Law, N.M.Stat.Ann. § 30-9-16. ² It therefore denied the petition.

Manlove filed a habeas corpus petition with the New Mexico Supreme Court, raising denial of the continuance as an issue. While that court questioned the propriety of denying the continuance under the local rule, it concluded that principles of finality precluded further review of the issue. Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237, 243 (1989). Respondent concedes that Manlove exhausted his state remedies as to all issues raised in the present proceeding.

Manlove then filed this federal habeas petition. A magistrate judge issued proposed findings and a recommended disposition in which he concluded, inter alia, that denial of a continuance violated Manlove's due process rights. The district court adopted the magistrate judge's proposed findings and disposition and granted the petition, ordering Manlove released unless a new trial was held within ninety days. ³

Respondent contends that the district court used an incorrect standard to determine that denial of a continuance violated Manlove's due process rights. ⁴ He argues that the district court analyzed the issue under the factors for cases that come before the court on direct appeal rather than on habeas review.

Whether the right to due process was violated is a mixed question of law and fact. Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990). The state court's findings are presumed correct, unless one of the factors listed in 28 U.S.C. § 2254(d) is present or the findings are not fairly supported by the record. Id. at 1392 (footnote omitted). Legal conclusions and mixed questions of law and fact are reviewed de novo, although findings of fact underlying mixed questions are accorded the presumption of correctness. Id. at 1393.

Case, 887 F.2d at 1396, held that on direct appeal, a court reviews the denial of a continuance for abuse of discretion, and will not reverse unless the denial was arbitrary or unreasonable and materially prejudiced the appellant. The four factors that may be considered in determining whether a denial is arbitrary and unreasonable are:

the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; a need asserted for the continuance and the harm that appellant might suffer as a result of the district court's denial of the continuance. No single factor is determinative and the weight given to any one may vary, depending on the extent of the appellant's showing on the others.

Id. (quoting United States v. West, 828 F.2d 1468, 1470 (10th Cir.1987)).

However, "when a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion, but 'it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.' " Id. (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981)). " 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' " Id. at 1397 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). Nevertheless, the focus must be on the need for the continuance and the prejudice resulting from its denial. Id.

The district court found that Cherryhomes had not been diligent; that a continuance would have accomplished Manlove's goal of placing the prosecutrix's credibility in question; that a continuance would not have been a great inconvenience to the court, the state, or its witnesses; and that Manlove showed a need for Pike's testimony and prejudice from denial of the continuance. It placed particular emphasis on the need and prejudice factor. We conclude that it applied the correct standard.

As to the district court's analysis of the West factors, the parties dispute whether Cherryhomes was diligent. The relevant, undisputed facts are as follows: Pike's name was mentioned during the preliminary examination held February 16, 1979, but the nature of her potential testimony was not revealed at that time. Cherryhomes did not represent Manlove at that time, but became involved in the case in March 1979. He made several requests to the public defender, whose office represented Manlove at the preliminary examination, to provide him with tapes of the hearing, and was assured the tapes were being transcribed and a copy would be provided to him as soon as that process was completed....