McKenzie v. Risley

• Decision Date: 10 March 1988
• Docket Number: No. 85-4156,85-4156
• Parties: Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Henry RISLEY, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1525

842 F.2d 1525

Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Henry RISLEY, et al., Respondents-Appellees.

No. 85-4156.

United States Court of Appeals, Ninth Circuit.

Argued En Banc and Submitted Aug. 12, 1987.

Decided March 10, 1988.

Timothy K. Ford, Seattle, Wash., for petitioner-appellant.

Chris D. Tweeten, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.

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

Before WALLACE, FLETCHER, FARRIS, PREGERSON, ALARCON, CANBY, NORRIS, WIGGINS, BRUNETTI, KOZINSKI and O'SCANNLAIN, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge:

Appellant Duncan Peder McKenzie, Jr., convicted of murder and sentenced to death by the State of Montana, appeals from the district court's dismissal of his petition for writ of habeas corpus. A panel of this court affirmed the dismissal in McKenzie v. Risley, 801 F.2d 1519 (9th Cir.1986), but McKenzie's suggestion for rehearing en banc was subsequently granted. 815 F.2d 1323 (9th Cir.1987). We now affirm.

I. BACKGROUND

The Montana Supreme Court described the facts as follows:

The victim in this case was Lana Harding, a 23 year old rural school teacher in Pondera County, Montana. On Tuesday morning, January 22, 1974, she failed to appear at school. At the Pioneer School teacherage where she lived the bed was found in a disheveled condition. The sheriff of Pondera County was called and officers were dispatched to the school arriving there midmorning.

Investigation that day revealed (1) a red tennis shoe belonging to Lana Harding just outside the school, (2) a drag trail from the teacherage to a nearby road, (3) blood near the end of the drag trail (later identified as Lana's type and RH factor) and (4) a wrist watch belonging to Lana in the same area as the blood. Lana Harding was last seen in Conrad, Montana, 13 miles from the teacherage on Monday, January 21, at about 5:00 p.m.

Defendant had recently moved into the community and was working for the K & K Wholesale Seed Company, located approximately three miles from the Pioneer School teacherage. A day or so before January 21 he made arrangements to buy a 1948 black Dodge pickup, recognizable to most inhabitants of the area because it had belonged to one local owner for a long period of time. On January 21 defendant had worked on the pickup after work. He was seen leaving K & K Wholesale Seed Company at approximately 6:45 p.m. in his black pickup headed toward his place of residence not far from the teacherage. The pickup was seen about 7:00 p.m. about a mile from the teacherage.

Approximately an hour later, around 8:00 p.m., defendant knocked on the door of the Pearson farm residence located across the road from the teacherage. He asked for assistance in starting his pickup. It was later determined his pickup was parked in the road at a point where the drag trail ended and where the blood and watch were found the following day. At the Pearson residence defendant asked directions to his own residence and called his wife to say he was coming home. Don Pearson pulled the pickup, got it started and noted defendant did not drive on towards his place of residence. Shortly thereafter, the pickup was seen being driven toward the drill where Lana's body was found the following day.

Her body was found clothed only in a shirt[,] sweater and bra. It was draped over the tongue of a grain drill. She had been severely beaten about the head and body. The forensic pathologist who examined the body testified the death blow had been delivered to the head and laid open the right side. A rope was tied around her neck; there was evidence she had been strangled; however pressure had been released so she did not die of strangulation. A coil of wire was entangled in her hair, later shown to have come from a roll of wire found in the back of defendant's pickup.

During the search for the body and the investigation of the homicide three additional items were found: (1) A pair of gloves worn by defendant at work were found in a field not far from where the body was discovered with human blood on them, (2) overshoes with Lana's type blood and brain tissue on them were found about a quarter of a mile away, and impressions from the soles matched the heels of boots later taken from defendant's home; and (3) Lana's purse was found near the place where the overshoes were covered.

As a result of the investigation by the sheriff and his deputies, the county attorney, on Tuesday afternoon, January 22, filed a complaint charging defendant with assault before the justice of the peace. The county attorney also obtained a warrant for the arrest of defendant and a search warrant.

Defendant was thereafter arrested at his home. The black Dodge pickup was seized and impounded and blood was found in the bed of the pickup and on the springs; the back end of the pickup had been recently sprayed with black paint; the spray paint was later identified by FBI experts as identical to paint brand-named "Weekend" which was not available in the Conrad-Pondera County, Montana area. A can of the black spray paint was found in the cab of the pickup and another was later found at defendant's home.

The following items were found in the back of the pickup: (1) a coil of wire later identified as having been the source of wire found in the victim's hair, (2) an exhaust manifold that had been painted black, and (3) human blood of the same kind and RH factor as Lana's and brain and corticle tissue were found on the manifold. Dr. John Pfaff, who examined the victim's body and the manifold, testified that the manifold could have inflicted the fatal blow.

At the drill site where the body was located, a piece of brass from a water pump was found. The prior owner of the Dodge pickup testified this piece of brass was in [the] back of the pickup when defendant took possession of the pickup on January 19.

Several co-workers at the K & K Wholesale Seed Co. testified at trial that defendant had said on January 21 that he broke in every new vehicle by engaging in sexual intercourse in [it]. Several days before defendant had remarked that he had had intercourse with country school teachers; and that they were naive, he could teach them, and they were easy to get.

Subsequently defendant was charged with several crimes to which he entered pleas of not guilty. Following trial, he was convicted by a jury of the crimes of deliberate homicide by means of torture and aggravated kidnapping. Judgment was entered thereon and a death sentence imposed. Defendant appealed.

State v. McKenzie, 186 Mont. 481, 608 P.2d 428, 434-36 (1980) (McKenzie III ).

The panel opinion summarized the extensive procedural history of the case:

The Montana Supreme Court affirmed the convictions and the sentence. State v. McKenzie (I), 557 P.2d 1023, 171 Mont. 278 (1976). The Montana Supreme Court rejected McKenzie's claim, inter alia, that the trial court's jury instructions on presumptions and the Montana death penalty statute violated the Constitution. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). McKenzie v. Montana, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977).

On remand, the Montana Supreme Court, after reexamining all of the issues raised by McKenzie, adhered to its original decision. State v. McKenzie (II), 581 P.2d 1205, 177 Mont. 280 (1978). The Montana Court held that the jury instructions did not erroneously shift the burden of proof on the issue of intent, but even if they did, such an error would not have affected the jury's verdict because the evidence of intent was overwhelming. 581 P.2d at 1223-24.

Following the Montana Supreme Court's affirmance of the convictions and the sentence in McKenzie II, McKenzie sought relief through the Sentence Review Division of the Montana [Supreme] Court. His petition for review was denied. His attempted appeal of that decision to the Montana Supreme Court was also denied because there was no appeal from a decision of the Sentence Review Division.

McKenzie again petitioned for certiorari to the United States Supreme Court. Certiorari was granted, the judgment was vacated, and the case was remanded for further consideration in light of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). McKenzie v. Montana, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979). The Montana Supreme Court once again affirmed the convictions and the sentence. State v. McKenzie (III), 608 P.2d 428, 186 Mont. 481 (1980). This time, however, the Montana Court conceded that some of the jury instructions unconstitutionally shifted the burden of proof to McKenzie to disprove that he had the criminal intent necessary to support his conviction. 608 P.2d at 457-58. His conviction was nevertheless reaffirmed because the court found the unconstitutional jury instructions harmless beyond a reasonable doubt in light of the overwhelming evidence of intent. 608 P.2d at 459.

McKenzie once again sought certiorari from the United States Supreme Court. This time certiorari was denied. McKenzie v. Montana, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980) (Justices Marshall and Brennan dissenting). McKenzie then filed a petition for post-conviction relief or habeas corpus in the Montana state district court. The petition was denied. The denial was affirmed by the Montana Supreme Court. McKenzie v. Osborne (McKenzie IV), 640 P.2d 368, 195 Mont. 26 (1981).

McKenzie then filed a petition for a writ of habeas corpus in federal district court. The district court dismissed the petition and it is from that dismissal that McKenzie timely appeals to this court.

801 F.2d at 1522-23.

The panel rejected all of McKenzie's arguments and affirmed. McKenzie petitioned for rehearing of three questions resolved by the panel: (1) whether the Sandstrom...