Orsini v. Wallace

• Decision Date: 16 October 1990
• Docket Number: No. 88-2581,88-2581
• Citation: 913 F.2d 474
• Parties: Mary Lee ORSINI, Appellant, v. Virginia WALLACE, Warden, Women's Unit, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 474

913 F.2d 474

Mary Lee ORSINI, Appellant, v. Virginia WALLACE, Warden, Women's Unit, Arkansas Department of Correction, Appellee.

No. 88-2581.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 11, 1989.

Decided Aug. 31, 1990.

Rehearing and Rehearing En Banc

Denied Oct. 16, 1990.

Byron Rhodes, Hot Springs National Park, Ark., Lynn Pruitt, Little Rock, Ark., for appellant.

Clint Miller, Little Rock, Ark., for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BRIGHT, Senior Circuit Judge.

HEANEY, Senior Circuit Judge.

In 1982, Mary Lee Orsini was convicted in Pulaski County, Arkansas, Circuit Court, for the capital murder of Alice McArthur. She was sentenced to a term of life imprisonment without parole. Her conviction was affirmed by the Arkansas Supreme Court, Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), and the United States Supreme Court denied certiorari. Orsini v. Arkansas, 469 U.S. 847, 105 S.Ct. 162, 83 L.Ed.2d 98 (1984). Orsini then petitioned unsuccessfully for state post-conviction relief. Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985).

Orsini subsequently petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. She asserted sixteen separate grounds for relief. A United States magistrate, proceeding with the consent of the parties and pursuant to the congressional grant of authority in 28 U.S.C. Sec. 636(c), entered a final judgment denying Orsini's petition without an evidentiary hearing. Orsini appeals from the final judgment of the magistrate. She contends on appeal that: (1) she was denied due process when prior inconsistent statements of material witnesses and when the details of special inducements given to "Yankee" Hall, a co-conspirator, to testify against Orsini were withheld by the prosecutor's office; (2) she was denied her right to a fair trial because the prosecutor permitted the known perjured testimony of three key material witnesses, including that of "Yankee" Hall, to stand unrefuted at trial, released Hall's close-up confession implicating Orsini a few days before trial, and engaged in other misconduct; (3) she was denied her right to a fair trial as a result of pretrial publicity; and (4) she received ineffective assistance

                of counsel at trial and on direct appeal. 1   We initially address, sua sponte, the question of whether the magistrate had jurisdiction to hear and render final judgment on Orsini's habeas petition
                

I. JURISDICTION

The parties concede that statutory authority exists for a magistrate to enter final judgment on a habeas petition with the consent of the parties involved. They do so even though the Federal Magistrates Act has been consistently given a narrow interpretation. See Gomez v. United States, --- U.S. ----, 109 S.Ct. 2237, 2240, 104 L.Ed.2d 923 (1989); United States v. Trice, 864 F.2d 1421, 1429 (8th Cir.1988). Because this issue involves the subject matter jurisdiction of this Court, an independent determination of this issue is in order. Upon review of the language and history of the Federal Magistrates Act, we believe that Congress intended for magistrates to be authorized to conduct habeas proceedings within the limitations set forth in 28 U.S.C. Sec. 636(c)(1). See Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir.1987).

Section 636(c)(1) provides, in pertinent part:

(c) Notwithstanding any provision of law to the contrary--

(1) Upon consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury 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. Sec. 636(c)(1) (1988). Both requisites are met in this case. ²

Because habeas proceedings are customarily characterized as civil proceedings, e.g., Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724 (1987); Stewart v. Bishop, 403 F.2d 674, 677 (8th Cir.1968), the plain language of section 636(c)--even in light of the specific inclusion of habeas petitions in section 636(b)(1)(B)--indicates that magistrates, upon consent of the parties and reference by the district court, have jurisdiction to order entry of judgment in a habeas case.

While an argument can be made that Congress did not intend to authorize magistrates to enter judgments in habeas petitions, we do not believe that it withstands careful scrutiny. In our view, the legislative history confirms the plain meaning of section 636(c). In 1976, in an effort to overrule Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), ³ Congress We next ask whether section 636(c) comports with Article III of the Constitution. In a non-habeas case, this Court, sitting en banc, held that it does not violate Article III for Congress to delegate case dispositive authority, which is the essence of the judicial power of the United States, to a non-Article III officer. Lehman Bros. Kuhn Loeb v. Clark Oil & Refining, 739 F.2d 1313 (8th Cir.1984). Eleven other circuits accept this view. ⁵ We reasoned that section 636(c) did not violate Article III because Article III courts firmly "control" each magistrate. Id. at 1316. This "control" results from the Judicial Conference participating in decisions regarding the pay, locale, and number of magistrates; the district court retaining the discretion to refer or recall any case from the magistrate; and review by a court of appeals as a matter of right. Id. at 1315-16. Judges Lay, Arnold and Bowman dissented. ⁶

                passed section 636(b)(1)(B), intending the language "notwithstanding any provision of law to the contrary" to "overcome any problem which may be caused by the fact that scattered throughout the code are statutes which refer to 'the judge' or 'the court.' "    H.R.Rep. No. 1609, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6169.  In 1979, Congress passed section 636(c) with the same "notwithstanding any provision of law to the contrary" language.  Although in this latter instance Congress did not specify its intention, it is fair to assume that Congress intended the same effect by the language in the 1979 Act as Congress did in the 1976 Act. 4   Also in 1979, the Supreme Court amended Rule 10 of the Rules Governing Section 2254 Cases in United States District Courts to provide a generic grant of authority:  "The duties imposed on the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. Sec. 636."    In light of this, we believe that Congress intended section 636(c), as the plain language indicates, to authorize magistrates to enter judgments in habeas proceedings on consent of the parties and reference by the district court
                

The only circuit to address the constitutionality of section 636(c) in a habeas setting is the Eleventh Circuit in Sinclair v. Wainwright, 814 F.2d at 1519. In that case, Senior Judge J. Smith Henley of the Eighth Circuit, sitting by designation Orsini asserts that Lehman is not dispositive in this case because of the nature of the habeas proceeding. We disagree. Nothing in this Court's opinion in Lehman indicates that our holding was limited to jurisdiction over civil, non-habeas matters. ⁷ See Lehman, 739 F.2d at 1316; Sinclair, 814 F.2d at 1519. Moreover, Orsini's arguments fail because none of the arguments relate to traditional Article III concerns. ⁸

wrote an opinion holding section 636(c) constitutional, even in the habeas setting. Id. He reasoned that the provision was constitutional because consent was required and the district court retained some control over the magistrate. Id. Finally, Orsini's argument that a remand is in order because her consent was uncounseled also fails because she did not raise that issue initially to this Court. Therefore, we hold that for purposes of Article III, section 636(c) is constitutional and that the magistrate had subject matter jurisdiction to enter judgment.

II. THE DUE PROCESS AND FAIR TRIAL ISSUES

When one has had an opportunity to thoroughly digest Orsini's claims that she was denied due process and a fair trial, it becomes clear that the answer turns on several incidents involving "Yankee" Hall's pretrial statements and his testimony at trial.

"Yankee" Hall was the state's principal witness. Prior to trial Hall agreed with Sheriff Tommy Robinson and Prosecutor Wilbur "Dub" Bentley that in return for the state accepting his plea of guilty to first degree murder, rather than to capital murder, he would sign a confession detailing all the events surrounding his and Orsini's involvement in the murder of Alice McArthur. (A person found guilty of capital murder must be sentenced to death or life without parole. A person found guilty of first degree murder is eligible for parole.) Pursuant to a plea agreement, Hall gave and signed a long and detailed confession on August 29, 1982. In that confession Hall stated that he had been hired by Orsini to murder Alice McArthur. He recited that Orsini had been promised $15,000 by William McArthur, Alice's husband, if she would arrange the murder. Hall declared that he and Orsini attempted to bomb Alice McArthur's car, that the bomb had exploded, but that Alice McArthur was not injured. Hall stated that Orsini approached him again and stated that William McArthur still wanted his wife killed and had raised the ante to $25,000. Hall and Orsini then worked out a plan to kill Alice McArthur in her home. Hall then stated that he hired Larry McClendon, who was a friend of his from the penitentiary, to be the trigger man. According to Hall, the $25,000 payment was to be split among himself, McClendon, and Orsini.

Hall stated that the plan was to have him and McClendon gain entry into the McArthur home...