Reiger v. Christensen

• Citation: 789 F.2d 1425
• Decision Date: 21 May 1986
• Docket Number: No. 84-1528,84-1528
• Parties: Vernon REIGER, Sr., Petitioner-Appellant, v. Robert CHRISTENSEN and Tany S. Hong, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1425

789 F.2d 1425

Vernon REIGER, Sr., Petitioner-Appellant, v. Robert CHRISTENSEN and Tany S. Hong, Respondents-Appellees.

No. 84-1528.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 14, 1985.

Decided May 21, 1986.

Vernon Reiger, Sr., in pro per.

Arthur E. Ross, Deputy Prosecuting Atty. City and County of Honolulu, Honolulu, Hawaii, for respondents-appellees.

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

Before SKOPIL, FLETCHER, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Vernon Reiger, Sr. appeals in pro se from the district court's denial of his habeas corpus petition alleging ineffective assistance of counsel and various due process claims.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On February 25, 1979, an intruder attacked Josephine Hoapili in her apartment. After sexually assaulting her, the attacker shot Hoapili three times in the back of her head with a .22 caliber pistol.

The State of Hawaii charged Reiger with rape, attempted murder, and first degree burglary. The State's case against Reiger rested on Hoapili's identification of Reiger as her assailant and on circumstantial evidence linking Reiger to Hoapili's apartment. In particular, Reiger's estranged girlfriend, Shannon Scott, testified that she had previously lived in Hoapili's apartment and that Reiger still had a pass key. Reiger was convicted as charged after a jury trial in Hawaii state court. The Hawaii Supreme Court affirmed. State v. Reiger, 64 Hawaii 510, 644 P.2d 959 (1982).

On August 4, 1982, Reiger filed a habeas corpus petition. The district court denied his petition on the merits without holding an evidentiary hearing. Reiger seeks reversal on the following grounds:

One. The district court erred in denying Reiger's claim of ineffective assistance of counsel without conducting an evidentiary hearing.

Two. The district court erred in finding that the state trial court's admission of a photo array from which the victim had identified Reiger did not deprive Reiger of his due process rights.

Three. The district court erred in finding that the state trial court's admission of a prosecution witness's statement that Reiger had a "long police record" did not violate Reiger's due process rights.

Four. The district court erred in holding that the state trial court's refusal to grant a mistrial based on the State's delay in disclosing negative fingerprint test results did not deprive Reiger of due process.

Five. The district court erred in ruling that the state trial court's refusal to admit evidence of a prosecution witness's prior shoplifting conviction for impeachment purposes did not violate Reiger's due process rights.

Six. The district court erred in finding that the state trial court's refusal to segregate the jurors for questioning regarding their exposure to potentially prejudicial pretrial publicity did not violate Reiger's right to a fair and impartial trial.

We discuss the facts pertinent to each claim under separate headings.

II. STANDARD OF REVIEW

We review de novo a district court's decision on a petition for a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985); Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.1985). This court also reviews de novo the district court's determination that trial counsel rendered ineffective assistance. Weygandt v. Ducharme, 774 F.2d at 1492-93; Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Reiger claims that he was deprived of his Sixth Amendment right to counsel by his state trial counsel's deficient performance. He contends that his trial counsel erred by (1) failing to introduce evidence that a murder with a similar modus operandi had been committed in Hoapili's apartment building one year prior to the attack on Hoapili, (2) failing to object to questioning concerning Reiger's connection with local organized crime figures, and (3) eliciting damaging testimony from two prosecution witnesses on cross-examination.

Reiger's failure to raise these claims before the Hawaii Supreme Court precludes him from raising them in federal court. A habeas petitioner must exhaust state remedies unless he shows an absence of available state corrective process or circumstances rendering such process ineffective. 28 U.S.C. Sec. 2254(b); see Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983). If the habeas petitioner's claim was not presented to the state court on direct appeal, state collateral remedies must be exhausted. Sweet v. Cupp, 640 F.2d 233, 235 (9th Cir.1981). Although Reiger's failure to raise these issues on direct appeal to the Hawaii Supreme Court bars state collateral relief, see Hawaii R.Penal P. 40(a)(3); ¹ Matias v. Oshiro, 683 F.2d 318, 320-21 (9th Cir.1982), a failure to comply with state procedural rules does not exempt a habeas petitioner from the exhaustion requirement unless he demonstrates cause and prejudice for his failure to exhaust state collateral remedies. Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977); Matias, 683 F.2d at 321. Because Reiger has made no showing of cause for his failure to comply with Hawaii procedural rules, federal relief is not available to him. See id. Reiger was represented by different counsel on his appeal to the Hawaii Supreme Court (they also represented him on his petition to the district court); he does not indicate dissatisfaction with their performance.

Reiger also argues that his trial counsel erred by (1) failing to introduce at trial, test results that indicated that Reiger's fingerprints were not found in Hoapili's apartment; (2) failing to voir dire jurors who had been exposed to potentially prejudicial pretrial publicity concerning the case; (3) failing to object during the opening and closing arguments to prosecutorial comment that the crimes were committed in the manner of a "gangland execution"; and (4) failing to object to prosecution witness Shannon Scott's testimony that Reiger had "a long police record." Reiger asserts that the district court should have held an evidentiary hearing to resolve these claims.

We may not affirm a district court's summary denial of a writ of habeas corpus unless the record on appeal indicates that the district court independently reviewed all relevant portions of the state court record. Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985); Johnson v. Lumpkin, 769 F.2d 630, 636 (9th Cir.1985). The district court did not review the transcript of the trial in this matter. Because resolution of Reiger's claims of ineffective assistance is dependent upon a review of the trial transcript, we remand for such independent consideration those of Reiger's ineffective assistance of counsel claims that were raised before the Hawaii Supreme Court. See Richmond, 774 F.2d at 961; Johnson, 769 F.2d at 636.

Our decision in Austad v. Risley, 761 F.2d 1348 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985) is not to the contrary. In Austad we held that a habeas petitioner who alleges that the jury's exposure to prejudicial pretrial publicity prevented him from receiving a fair trial has the burden to produce pertinent portions of the state court record. Id. at 1353. We opined that the district court has no duty sua sponte to obtain and examine the state court exhibits unless the petitioner is unable to produce the record. Id. We reasoned that the determination of a juror's partiality or bias is a factual determination to which 28 U.S.C. Sec. 2254(d)'s presumption of correctness applies, id. at 1350, and concluded that it is petitioner's duty under section 2254(d) to establish by convincing evidence that the challenged factual determinations of the state court were erroneous. Id. at 1353.

In contrast, Reiger's habeas corpus petition, like that in Johnson, alleges an ineffective assistance of counsel claim, a mixed question of fact and law. See Butcher v. Marquez, 758 F.2d at 376. We have held that the section 2254(d) presumption of correctness applies only to issues of fact as found by the state courts, and does not apply to federal court review of state court decisions regarding mixed questions of law and fact. See Fendler v. Goldsmith, 728 F.2d 1181, 1190-91 n. 21 (9th Cir.1983). We give deference to the state court's findings of the underlying facts, but reserve the right to give different legal weight to such facts. Butcher v. Marquez, 758 F.2d at 376. Our holding in Austad premised as it was upon a petitioner's duty to produce evidence in support of a challenge to a state court's factual findings, has no application to the instant case.

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court set out six separate circumstances in which a federal court reviewing factual issues previously decided by state courts must grant an evidentiary hearing to a habeas applicant. See id. at 313, 83 S.Ct. at 757. In the instant case, the district court's failure to review the relevant portions of the state court record prevented it from ascertaining whether an evidentiary hearing was appropriate. See id. at 319, 83 S.Ct. at 760; Richmond v. Rickets, 774 F.2d at 961-62. Where, as here, the state court opinion contained no specific factual findings, ² there may be a heightened need for an evidentiary hearing. See Townsend, 372 U.S. at 320, 83 S.Ct. at 760 (evidentiary hearing required where state trial judge "rendered neither an opinion, conclusions of law, nor findings of fact."). Accordingly, we reverse and remand Reiger's ineffective assistance counsel claims to the district court with instructions to review the relevant portions of the state court record and to determine whether an evidentiary hearing is required.

IV. ADMISSION...