Walters v. McCormick, 94-35684

• Decision Date: 24 January 1996
• Docket Number: No. 94-35684,94-35684
• Citation: 76 F.3d 390
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. George Ronald WALTERS, Petitioner-Appellant, v. Jack McCORMICK, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 390

76 F.3d 390

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

George Ronald WALTERS, Petitioner-Appellant, v. Jack McCORMICK, Respondent-Appellee.

No. 94-35684.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 18, 1995.

Decided Jan. 24, 1996.

Before: FARRIS, NOONAN, and HAWKINS, Circuit Judges.

MEMORANDUM ^*

George Ronald Walters appeals the denial by the district court of his petition for habeas corpus. The petition challenges his conviction of sexual assault and sexual intercourse without consent in violation of Montana Code Ann. §§ 44-5-502 and 503. The facts of the case are set out in State v. Walters, 506 P.2d 497 (Mont.1991).

Walters' challenges are two: (1) that the four-year old victim, K.C., was incompetent to be a witness so that permitting her to testify violated his right to due process and to confront the witnesses against him in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and (2) that the trial judge excluded evidence that was his sole means of defense in violation of his right to due process under the Fourteenth Amendment. Each argument has plausibility, a plausibility enhanced by Walters' persistence in his claim of innocence of the crimes--a persistence that appears to exclude him from participating in a state program for the treatment of sexual offenders and so extends his sentence far beyond what the sentencing judge had in mind when he said that after completing this treatment Walters would be eligible for parole in two years. Despite the force of the arguments advanced for Walters, we affirm the judgment of the district court.

The state, to begin with, contends that Walters has not exhausted his state remedies. The federal magistrate agreed, but the district court on de novo review concluded that he had. Rather than plunge the case into what could be procedural maze with Walter buffeted from federal to state to federal court, we think it no prejudice to the state to proceed directly to the merits when our judgment on the merits is for the state; the equitable discretion governing habeas proceedings authorizes the short-cut. See McClesky v. Zant, 499 U.S. 467, 490 (1991).

The competency of K.C. to testify was conscientiously considered by the trial judge in an evidentiary hearing he devoted to this question. It was apparent to him that K.C. gave a number of inconsistent answers and was at times unreliable. At other times she appeared to know what truth is and to be aware of the consequences of speaking it or not speaking it. In reaching his determination of competency, the judge leaned fairly heavily on the testimony of Janet Hossack, a licensed counsellor in psychology who had interviewed K.C. Hossack was candid in pointing to the deficiencies in K.C.'s truth-telling abilities, noting that she did entertain fantasies such as there being monsters in her bed and...