McKenzie v. McCormick

• Decision Date: 24 June 1994
• Docket Number: No. 93-35142,93-35142
• Parties: 40 Fed. R. Evid. Serv. 1313 Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Jack McCORMICK, Warden, Montana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1415

27 F.3d 1415

40 Fed. R. Evid. Serv. 1313

Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Jack McCORMICK, Warden, Montana State Prison, Respondent-Appellee.

No. 93-35142.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 1994.

Decided June 24, 1994.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, Gregory A. Jackson, Jackson & Rice, Helena, MT, for petitioner-appellant.

Paul D. Johnson, Asst. Atty. Gen., Helena, MT, Stephanie Ross, Point Roberts, WA, Jayne Mitchell, Pondera County Atty., Conrad, MT, for respondent-appellee.

Appeal from the United States District Court for the District of Montana.

Before: NORRIS, BEEZER and KOZINSKI, Circuit Judges.

Opinion by Judge KOZINSKI.

KOZINSKI, Circuit Judge.

Nearly 20 years after he was sentenced to death for the brutal murder of Lana Harding, Duncan Peder McKenzie, Jr., appeals the denial of his second federal habeas petition, claiming that a meeting between the special prosecutor and the sentencing judge denied him due process of law.

I. Background

While litigating his first federal habeas petition, ¹ McKenzie discovered that Special Prosecutor Douglas Anderson had met with Judge Nelson, who presided over McKenzie's trial, for 45 minutes on February 7, 1975--a week after the guilty verdict and a month before sentencing. Asserting that this meeting violated his right to due process at sentencing under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), McKenzie apparently exhausted his state remedies ² and filed his second federal habeas petition. ³ The district court, Judge Battin presiding, held an evidentiary hearing where Anderson testified he met with Judge Nelson to discuss payment for his services as special prosecutor. ⁴ Judge Battin granted summary judgment to the State ⁵ and denied McKenzie's petition because McKenzie "presented no evidence that sentencing was discussed" or that the meeting "involved and affected the sentencing decision." Memorandum and Order of 3/3/87, CR 24 at 3-4.

On appeal, it was discovered that the reporter's notes of Anderson's examination were lost and, three and a half years later, Judge Battin reconstructed the record pursuant to Fed.R.App.P. 10(c). According to Judge Battin's recollection, Anderson flatly denied discussing "anything that would have a bearing on the sentencing of McKenzie" during direct examination, Order Certifying Record, ER 20, but admitted during cross-examination that his discussion "may have included" certain aspects of the case, as they related to work Anderson had performed, id., ER 22. ⁶

We reversed and remanded, holding that Anderson's reconstructed testimony raised a genuine issue of material fact precluding summary judgment and that the proper inquiry was "whether matters were discussed that did or could have influenced the judge in his sentencing decision." McKenzie v. Risley, 915 F.2d 1396, 1398 (9th Cir.1990). The case was remanded to the District of Montana where Judge Battin recused himself from further proceedings and Chief Judge Hatfield assigned the case to Judge Lovell, who allowed additional discovery and scheduled an evidentiary hearing. Two days before the hearing, however, petitioner challenged Judge Lovell's impartiality on the ground that Judge Lovell had practiced law in Montana and may have had personal knowledge of the characters and reputations of Anderson and Judge Nelson. Judge Lovell recused himself, and there being no other judge available in the District of Montana, the case was reassigned to Judge Ryan of the District of Idaho.

Based on the evidence presented to him and a review of the record, Judge Ryan found that McKenzie had presented "no credible proof that there were any matters or issues or subject matter discussed by Mr. Douglas Anderson and Judge Robert J. Nelson during their ex parte conversation on February 7, 1975, which did or could have influenced Judge Robert J. Nelson in his sentencing decision." Order of 11/23/92, ER 106.

McKenzie appeals this ruling, arguing that the district court erred in allocating the burden of proof and making various evidentiary rulings.

II. Burden of Proof

On habeas review, state court judgments of conviction and sentence carry a presumption of finality and legality, Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993), and may be set aside only when a state prisoner carries his burden of "proving that [his] 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), overruled on other grounds, Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Miller v. Stagner, 757 F.2d 988, 992 (9th Cir.), amended, 768 F.2d 1090 (9th Cir.1985); Bashor v. Risley, 730 F.2d 1228, 1232 (9th Cir.1984); see Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir.1986) ("burden is on the petitioner ... to establish certain defects to overcome [the] presumption [of correctness]"). Petitioner must also convince the district court "by a preponderance of evidence" of the facts underlying the alleged constitutional error. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir.1976).

Relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), McKenzie argues that a showing that there was an off-the-record contact between the prosecutor and the sentencing judge is sufficient to shift the burden to the State to prove that matters relevant to sentencing were not discussed and that the meeting did not affect his sentence. Gardner does not support this novel rule, and the principles of federalism, comity and finality undergirding federal habeas jurisdiction counsel against it.

In Gardner, after the jury retired to deliberate as to sentencing in a death case, the state trial judge announced he would order a pre-sentence investigation report. Although the jury found that mitigating circumstances outweighed aggravating circumstances and returned an advisory sentence of life imprisonment, the trial judge sentenced Gardner to death, basing his decision in part on "the factual information contained in said pre-sentence investigation." Id. at 353, 97 S.Ct. at 1202 (quotations omitted). Portions of that report were never disclosed to defense counsel. Not surprisingly, the Supreme Court concluded that "petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id. at 362, 97 S.Ct. at 1207.

Gardner's case thus differs from McKenzie's in a crucial respect: In Gardner, no one disputed that the information the sentencing judge read in the pre-sentence report was highly relevant to sentencing; that, after all, was the purpose of the report. Nor was there any doubt the judge relied on this information in making his sentencing decision. Both facts--which lie at the heart of the constitutional error in Gardner--were taken for granted.

But what was assumed in Gardner is hotly contested in McKenzie; it's the very question we ordered answered on remand: "[W]ere [matters] discussed that did or could have influenced the judge in his sentencing decision"? 915 F.2d at 1398. Judge Ryan answered with an unequivocal "no" after considering Judge Battin's reconstruction of Anderson's testimony, numerous affidavits and depositions, and the testimony of many witnesses. Order of 11/23/92, ER 99-106. His finding, grounded in a thorough review of the record, is not clearly erroneous. See Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Wardley Int'l Bank, Inc. v. Nasipit Bay Vessel, 841 F.2d 259, 261 n. 1 (9th Cir.1988) (clear error standard applies as well when findings are based on documentary evidence or inference). Indeed, Judge Ryan's finding that there was no evidence of anything "which did or could have influenced Judge Robert J. Nelson in his sentencing decision," Order of 11/23/92, ER 106, is perfectly consistent with Judge Battin's earlier finding that there was no evidence supporting the allegation that the meeting "involved and affected the sentencing decision," Memorandum and Order of 3/3/87, CR 24 at 4. See n. 5 supra. Because, as two district judges have now found, no information relevant to sentencing was communicated during the course of the meeting, Judge Nelson obviously couldn't have relied on it. Thus, unlike Gardner, McKenzie never made a threshold showing of constitutional error, and the burden to prove the harmlessness of that error never shifted to the State.

We understand McKenzie to be making the somewhat related argument that the burden of stating a constitutional violation did not initially rest with him because the fact of contact between the prosecutor and the trial judge raised a presumption of prejudice. Again, this might be an appropriate rule where there's been ex parte contact, i.e., where the prosecutor was acting as an advocate for the government. But it has no place where there's been a finding of fact that the prosecutor was simply inquiring into his fees and nothing pertaining to the substance of the case was discussed. ⁷

Proof that there was a contact between the judge and the prosecutor does not satisfy petitioner's burden nor does it overcome the presumption of constitutional correctness accorded final state judgments of conviction and sentence; only proof of an improper contact does. Because McKenzie failed to present that proof, Judge Ryan correctly left the burden of proof on McKenzie, and his finding that McKenzie had not satisfied it was not clearly erroneous. ⁸

III. Evidentiary Rulings

McKenzie also alleges that Judge Lovell and Judge Ryan made erroneous evidentiary rulings. We review for abuse of discretion. Morgan v....