Gary Stewart Boardman v. Wayne Estelle, Warden

BOARDMAN, Gary Stewart

Petitioner-Appellant, Warden, ESTELLE,

Wayne

Respondent-Appellee.

No. 90-55238. Appeals, States Court Circuit.

Ninth April

Argued Submitted 9, 1992. Jan.

Decided Supplemented,

Opinion 11, 1992.

Rehearing Denied March Cal., Trevino, Angeles, A. Los

Phillip petitioner-appellant. Roeschke, Glassman, F. Donald

David F. Cal., Gen., Angeles, Atty. Los Deputy respondent-appellee. TROTT, NORRIS, HALL and

Before Judges. Circuit comments_ ex- is from And this make Judge: TROTT, Circuit n me.” believe perience, may be counsel persuasive The most sentence, argu- as his appealed the for a defendant speak Boardman to able he eloquence, process because halting denied due ing was might, with he to respond personally permitted to was not himself. speak for of Court California The letter. Mr. Perle’s 301, 304, States, 365 U.S. v. United Green unpub- in an argument this rejected Appeal in- that Boardman’s opinion, holding lished plurality). J., writing the (Frankfurter, “inconse- court the was ability to address denied he was asserts Gary Boardman other, evi- mitigating light quential” trial the state because process law due the sen- presented argument dence speak him to allow refused court Re- counsel. judge by Boardman’s tencing affirmatively he hearing after sentencing law, held court case the on California lying agree that to do so. requested to decide discretion trial has court that defendants requires criminal process represented criminal defendant whether sentencing if before to allocute permitted prior speak allowed by counsel for consid- and we remand request, they so held further court sentencing.1 The case this the error whether eration court’s fail- instance, that, the trial in this harmless. was speak did Boardman allow ure to deprivation. process a due constitute I without affirmed Court California counts guilty to four pleaded Boardman opinion. of lewd counts and seven copulation oral for habe- petition filed then Boardman involving under children conduct, each court, asserting in the district corpus During hear- the age. years of the when denied due again he was a let- mentioned specifically judge ing, the speak. request refused trial court Perle, N. Conrad from received ter court, supple- aas filed his traverse victims, noting: of one father Board- corpus petition, his habeas ment to I read illuminating that letter It was an by the was harmed he asserted man damage that type of that shows he had intended refusal court’s of this matters done in has] [Boardman by parents of offered information rebut problems for ongoing It creates nature. the traverse: He stated in victims. And, so, guess I I many people. so is that consideration very important One it letter say that ... was would expressly were of the victims parents me and upon have its effect did and several invited expressed letter that’s abe op- of this availed themselves individuals on be- went by what created problems silencing Consequently, portunity. young Mr. tween him of deprived petitioner, Perle. heard, his voice to have comments, making these Before or to any accusations in answer either Board- did not know stated that leniency. plead for personally letter. seen the had counsel man’s original). (emphasis asked hearing, Later properly magistrate Although court. to address through his a defendant as whether the issue stating framed “I’d request, denied The court in a state by counsel represented Any who mind. not, you if don’t soon just as a fundamental proceeding (Board- you from should come remarks sentence, he of his mitigation I general, find attorney).... Just man’s con- magistrate right. such found ... defendants not to have it’s better Wheeler, 286 n. 22 Cal.3d Sanchez, Cal.App.3d People v. 1. (1978); People Cal.Rptr. 583 P.2d People v. Wi see also Cal.Rptr. 110 Cal.Rptr. Cross, Cal.App.2d Cal.Rptr. 13 Cal.App.3d . ley, 57 People v (1976), grounds, disapproved on other raises asking for an Boardman now first time “[f]or that Boardman eluded 32(a)(1)(C), proceedings” .in these the claim that “he Fed.R.Crim.P. extension damaging ask crimi- could have refuted a letter judges federal requires presented to address the to the state court.” they wish nal defendants for are at a loss to understand He held there was basis We court. California’s argument rule to state as well as the district court’s extending the federal traverse, prejudice ruling. clearly found no his Boardman He also proceedings. permitted “ser- Boardman, holding light of the stated that because he was not offenses, speak sentencing, to the he could the harm not rebut of the iousness victims, community, presented to the court danger to the information mitiga- request parents. proba- In his to the trial victims’ facts offered certification, sentence, again the effectiveness ble cause Boardman tion nothing suggests the issue. Because did attorney, raised Petitioner’s Boardman issue, person- timely repeatedly this we Petitioner could have raise anything refusing a lesser sen- the district court erred in prodqced have conclude ally said would to consider his claim. tence.” magis- adopted the The district court Ill findings and recommendations trate’s corpus peti- habeas dismissed Boardman’s primary now to the issue We turn subsequent also denied his tion. The court this case: whether a criminal defendant is cause, probable a certificate of request for process denied due the trial court denies again argued he had in which prior the court request his to address through process denial denied due been sentencing.2 Finding right, no such to consider The court refused allocution. identify magistrate below could no basis he had been argument Boardman’s than right of allocution other for a inability respond to by his prejudiced Procedure, Rules of Criminal Federal _ family damaging from victims’ letters proceed apply to state court which do argument The court found members. court erred ings. believe the lower We it had not properly presented because overlooking origins of the ancient both corpus petition or raised in the habeas been failing right and in this common-law timely Boardman filed this in the traverse. importance recognize continuing of the appeal. affording defen- protected by interests opportunity speak on his own

dánt the Accordingly, we reverse. behalf.3 II stage matter, Sentencing critical of the preliminary we must As Mempa Rhay, 389 U.S. process, district erred criminal determine whether the 256-57, finding properly did not that Boardman (1967), to which inability respond to L.Ed.2d the issue of his raise guarantees apply. United process due asserts that Perle letter. California conduct.”) attempt we conclude transparent Because reject 2. We California’s dimension, crimes rath- see our attention on Boardman’s is of Constitutional focus in- ques- significant Constitutional er than the Constitu- fra, view would limit California’s argues California that Board- tion he raises. commit rights defendants who tional of those by denial of allocution man was not harmed accept unusually We cannot distasteful crimes. of his crimes. of the nature offensive a result. such justification a child molester who "Whát drugs offer in his behalf?” children furnishes process agree dissent that 3. We with the repugnant those crimes makes it nature of relying sentencing judge from precludes a opportunity vital that he have the all the more assumptions. materially However, untrue information leniency plead explain his actions and during process that due we believe See, e.g., Gustafson, 650 the court. In re from rights sentencing hearing affords the Cir.1981) (“Even a defen- sentencing judge beyond merely preventing the most heinous crime has convicted of the dant considering untrue information. from prior sentenc- to address the court the ing apologize explain or her for or and thus only Lundien, States criminal form of though the Even court. Cir.1985), cert. time, significantly over changed trials re 815, 88 L.Ed.2d right of a de- supporting interests “cannot of due quirements sentencer address his personally to fendant application through mechanical ascertained “ regard, In this constant. remained by ‘his formula,” are determined but of a allo- in 1961 that found Supreme Court decisions, reason, past course tory, part vital is still a cution strength confidence and stout ” process. profess.’ faith democratic relevant 496, 500, unmindful Leslie, are not Groppi v. in crimi- changes have evolved (1972) (quoting major 585, 632 582, 30 L.Ed.2d cen- seventeenth since the procedure v. nal Committee Anti-Fascist Joint number sharp decrease the tury 162-63, 123, McGrath, 341 U.S. —the punishable which were crimes (Frankfurt of 624, 817 95 L.Ed. to testi- death, right of the crimi of In the er, J., concurring)). context right to behalf, the his own fy on that democratic law, of the nal backbone why a no reason we see But counsel. to criminal defendant right of a is the faith limited to the rule should procedural accusers; it against his himself defend if it arose under circumstances allocution, recognized that long been remain. protects it right the reasons personally to defendant right of the the n less- innovations modern of these None court,4 element is an essential the defendant, personal- for the ens the need the Specifically, criminal defense. of a to present opportunity ly, to have oppor “contemplates an right allocution of mitigation. plea in court his bring mitigat tunity for 304, of at 655.5 81 Green, attention at S.Ct. 365 circumstances U.S. States, 383 v. United court.” Sherman importance of recognizing the After Cir.1967). (9th 837, F.2d 839 Green, of allocution right following year Hill concluded Court right of a crim the “traditional of Denial 424, 82 S.Ct. States, 368 U.S. v. United prior to allocution inal defendant (1962),that a 468, 417 sentence,” Groppi, 404 of imposition if he had to ask a defendant failure judge’s 586, as recognized was of although a violation say, anything to early Green as requiring reversal error 32(a)(1)(C),6 an was not Fed.R.Crim.P. 304, 301, States, 365 U.S. v. United and could dimension of Constitutional Del L.Ed.2d 670 corpus. The of habeas support writ States, v. United Piano it was not however, that noted, Court right of Cir.1978). When (3rd who was a defendant presented with English common under matured allocution an denied however, affirmatively law, defendant was a criminal hearing at which during the testify and could permitted sug- Nor imposed. Carr, 172 was Conn. sentence behalf. State his own the sentence imposing (1977). gested 374 A.2d un- or either misinformed [judge] was before allocution defendant’s has been inquiry of 6. The common-law Formality of court’s 4. "Allocution: 32(a)(1)(C) Rules of the Federal any legal he has cause Rule prisoner codified as whether pronounced v. Frank why judgment United States should not Criminal Procedure. show — (7th Cir.), Black’s against lin, on verdict of conviction.” cert. him 1979). (5th Dictionary ed. U.S.-, Law L.Ed.2d 229 32(a)(1)(C) re comply Rule with Failure summarily Green on dismisses dissent 5. The resentencing. States United quires remand inapplicable premise it is Navarro-Flores, Cir. However, 32(a). dis- construing Rule Moree, 928 F.2d 1980); see also explicit Court’s for the sent account does Walker, 1991); States Cir. underlying the rights the distinct discussion Cir.1990). procedural rules. innovations" "modern any origin”). relevant circum- tion of “immemorial informed as express Indeed there is no claim that read this stances. the Justices’ view anything the defendant would have had long-standing that there is a basis for the formally say at all to he had been allocution, separate indepen- cor- speak. invited to Whether [habeas dent of the entitlement created Rule pus] relief be available if a viola- 32(a). 32(a) occurred in the context tion of Rule recently, explicitly recog- Most the Court is a aggravating of other circumstances nized in yet McGautha that it had not question therefore do not consider. confirmed the Constitutional basis for the added). (emphasis 82 S.Ct. at 472 right of allocution: “This Court has not open question Hill therefore left directly determined whether or to what ex- a defendant who asks the court to concept tent of due of law Constitutionally guaranteed speak has a requires wishing that a criminal defendant do so. present argument presum- evidence term,

The next the Court hinted at how ably relevant to the issues involved sen- open question answered. should be tencing permitted should be to do so.” Id. Behrens, 162, 84 375 U.S. n. (reject- at 218 91 S.Ct. at 1473 n. 22 (1963), 11 L.Ed.2d 224 the Court S.Ct. ing defendant’s claim that he was denied importance again affirmed the of a federal right guilt allocution because and right personal speak to before defendant’s penalty proceeding, were determined in one sentencing, holding district court that the asking leniency and his statements in modifying erred in the defendant’s sen- sentencing could be considered in determin- Black, in his Justice writ- tence absence. ing guilt). The Court assumed without de- Court, as a for the described allocution ciding require does Constitution law,” right the defen- “ancient permit that the trial court a defendant to just prior dant must be allowed to invoke to speak requests. at if he so Id. sentencing. at 84 S.Ct. at 297. “It Id. pre- at 91 S.Ct. at 1472-73. It is right of to is then that the be cisely lingering question this that we must opportunity an to make a state- afforded today. decide judge in his is of ment to the own behalf importance.” concurring In his most Id. IV opinion, Harlan allocution Justice described argues a defen California first “elementary right.” as an represented by dant elects to be coun who He “Even if he has S.Ct. at 298. observed: right speak in his sel has no own behalf. earlier, has no assur- spoken a defendant adopted courts have this California ance that when the time comes for final view, finding right allocution for a sentence the district will remember represented defendant. “The [defendant] in his the defendant’s words absence by counsel and it was the represented was weight.” give them due Id. at counsel, than of the function of that rather right at 298. Justice Black noted himself, to address the court defendant “recognized” in of allocution is Fed. Cross, People the defendant’s behalf.” 32(a). Id. at 84 S.Ct. at 296. R.Crim.P. 678, 682, Cal.Rptr. Cal.App.2d “elementary Harlan described this Justice 32(a). right” as “embodied” Rule Id. at reject argument. A defendant also McGautha by counsel represented chooses to 91 S.Ct. who California, 1454, 1472, (1971) (allocu- right allocution.7 does not waive his 28 L.Ed.2d right representation creating A defendant who elects The dissent worries about behalf. However, "hybrid" representation. simultaneously by a defen- does not waive his counsel right entirely separate of allocution is dant’s right testify Similarly, trial. a defendant right represented by to be from a defendant’s through surrogate, presents his his case who right of can be analo- counsel. The forego right personally attorney, does not testify gized right to on his to a defendant’s (1975). The representa- is entitled a defendant “That merely provide proceed- “does stages of the Sixth Amendment at all of counsel

tion neces- the ac- sentencing, does not including be made shall ings, that a defense his own speak ‘in cannot personally mean he sarily cused; the accused grants to punishment.” mitigation Faretta, ... behalf’ his defense.” make States, v. United Taylor (emphasis at 2533 counsel (permitting added) a defendant (holding that 32(a)’s requirement satisfy Rule does by guaranteed self-representation right of offered personally defendant Amendment). we find Because the Sixth A defendant’s speak). opportunity sentencing to have right to allocute not a is represented to be choice as the quality personal the same right to direct of his complete surrender ar- defense, reject California’s make a forci- a court defense,8 permit does abandoned gument that Boardman between interpose that counsel bly to he retained coun- allocution when personal of his the exercise sel. rights. criminal the administration When as it V hedged about ... law protec- safeguards for the an affirmatively denied accused, deny him of an tion Furthermore, as- speak. choice his free exercise to the responded he would serts that safeguards these some of dispense with unlike the Hill letter, de- parent’s victim’s privileges in his imprison a man tois ... “would have claim he did not fendant who it the Constitution. call Hill, 368 say.” U.S. anything at all had McCann, rel. ex States Adams v. United Although we have 429, 82 S.Ct. 241-42, 236, 279-80, 269, 63 S.Ct. U.S. 317 issue,9 cir- our sister decided this yet v. Faretta quoted in (1942), 268 L.Ed. 87 conflicting results. reached 815, cuits have 806, 95 S.Ct. 422 U.S. California, and volun- competent considered defendant’s imposition of sentencing judge before im- matters of fundamental tary decisions sentence. action.... affecting trial of the portance omitted). omitted) (citations recently (footnote re Supreme Court The California 8. right to control defendant’s a criminal affirmed issue two obliquely in touched on Bloom, People in v. his areas of defense certain Judge relied on recently, Reinhardt cases. Most 669, 1221, 1194, P.2d Cal.Rptr. 774 259 Cal.3d 48 (4th Carolina, Cir. 586 F.2d 334 Ashe v. North 1039, denied, 110 S.Ct. (1989), U.S. 494 698 cert. infra, 1978), in dissent from see discussion 1503, 638 108 L.Ed.2d Risley, opinion v. original panel in Coleman occasions, "recognized we have numerous On withdrawn, Cir.1988), 434, (9th 493 839 personal respect defendant’s the need to McCormick, 874 v. nom. Coleman rev’d sub in most decisions on the ‘fundamental’ choice banc), 1989) (en (9th in which Cir. F.2d 1280 (1985) 39 (People v. Frierson a criminal case.’’ permitting importance a defen pressed the 73, 814, 803, Cal.Rptr. 705 P.2d 218 Cal.3d sentencing. In Cole comment before dant to capital defense 396.) case Thus even however, judge's man, the trial issue was prevent the defen power has counsel by the defendant’s consider statements failure to Lucky (People testifying at trial dant from sentencing, an affirmative prior to 1, 282, 259, Cal.Rptr. 753 (1988) 247 Cal.3d 45 personal allo- defendant's denial of the 1034, denied, 109 U.S. 488 [cert. P.2d 1052 cution. ]) (1989) 848, and the 980 L.Ed.2d S.Ct. 102 may Burr, 484 grazed this issue Weiss phase We also testify penalty denied, Cir.1973), (9th cert. (People F.2d 973 penalty preference for death (1974), 924, 1161, hold 961-963, L.Ed.2d 115 915, S.Ct. 39 248 94 (1988) Cal.3d 45 Guzman to be heard in denied, contemnor’s that a 467, 488 917 Cal.Rptr. [cert. 755 P.2d “undoubtedly a ‘fundamental was 882, own right.’ 1005 U.S. ’’ case, present control the does not Weiss (1988) (1989) ]; 45 Cal.3d People v. Grant however, the defendant neither because there Cal.Rptr. 894 [cert. 755 P.2d opportunity to attorney given the were nor his denied, Furthermore, sentencing. prior to heard ]). L.Ed.2d request to ad make a defendant did Weiss both the view endorse[s] ... This court, as did Boardman. respect dress the obligated to are court and counsel Circuit, represented by attorney an facts whether he has confronted with Fourth The here, say anything found before sentence is im presented those very similar to Hill, posed” is not a Constitutional error. Constitu right of allocution was 471; North In Ashe v. 368 U.S. at guaranteed. tionally (6th Coffey, cert. Cir.1978), States 871 F.2d Carolina, Cir. F.2d 334 (no 1989) allocution, constitutional basis denied Hill); Fleming, citing defen 849 F.2d at 569 (1979), state court two L.Ed.2d 1072 Coffey, (same). prior the Sixth Circuit relied sought address the dants on Hill their re find no Constitutional violation. judge denied sentencing. The defendant, howeVer, Coffey did not cor ask filed a habeas The defendants quest. court, and hence there court, asserting they to address the in federal pus petition denial as there was they no affirmative process because were were denied Prince, United States v. present case. of allocution. not afforded (5th Cir.), cert. noting the Su agreed, Circuit Fourth 321, 107 L.Ed.2d open in 493 U.S. this issue had left preme Court (1989) (no de violation where that when a defendant Hill. think “We court); fendant did ask to address the to the his desire effectively communicates Paz, v. De La imposition speak prior to the judge to trial Cir.1983) Hill (citing propo for the sentence, process not a denial of due it is sition that request.” failure defendant’s grant offer Miller, speak is “not a funda 849 the States v. see also United 336; defect.”) (citing Ashe for mental permit defendant must be proposition that denying Constitutional All of the cases speak for reasonable amount ted to factually distin- are status time). they do not involve the guishable because request speak, denial of an circuits have also found Other affirmative importantly, present case. More Constitutionally guaran allocution to be however, reasoning unpersua- their we find teed, engaged even although none because, finding that allocution has analysis of Ashe. The Fifth and sive brief basis, they overstate defen no Constitutional held a Circuits have that Eleventh holding. These cir- allocate Hill’s carefully defined rights present and to dant’s to be limiting comment ignore cuits Court’s dimen sentencing of Constitutional are “ag- impact of Moree, consider the that it did not sion. United States a under which Cir.1991) (citing gravating circumstances” process might a due of be Cir. denial allocution Huff, States v. read Hill more nar- Jackson, we violation. Because 1975)10); emphasis on the Court’s Cir.1991) (also relying rowly, and 1494, 1496 (11th with its limits of hold- acknowledgment of the v. Flem But see United States on Huff). reasoning of these adopt (right ing, we do ing, Constitutional, citing circuits. to allocution

Hill). personal nature Recognizing the right guarantee of the hand, Amendment’s circuits, have Sixth on the other Some defense, ability a unique of a is not to make right of that the concluded behalf, his own and plead defendant circuits Constitutionally secured. These acknowledgment of Supreme Court’s that a rely primarily on Hill’s statement practice continuing vitality of defendant “to ask a judge’s failure trial permitting a importance of is court stressed court’s reliance basis for the 10. The Huff pre-sen- respond prejudicial to all a respond who was concerned defendant not clear. Huff prosecution. opportunity to materials submitted denied delivered remanding tence material However, judge. In parte to the ex court state nowhere does Huff resentencing, noted the court Constitutionally right is to allocute that the represent- present and to to be be based. sentencing Constitutionally based. ed at attorney sentencing, ments their permitting to alloeute before a defendant speak may is a the denial of their be sentencing, hold that allocution we Otherwise, process found to harmless error. guaranteed by due clause be request peti- if the was made holding limited of the Constitution. Our vacated, and defendant, tioners’ sentences must be ei- to circumstances which they in a proceed- resentenced represented by coun- unrepresented ther which allows them the sel, he request permitted makes speak in their own behalf. trial before sentenc- to the ing. request, If denies the trial court Ashe, 586 F.2d at 337. process. received due case, present In the hear- Boardman, ing transcript establishes

VI counsel, through request made a address the court. Boardman asserts that next consider whether such by his re- prejudiced inability he was denial of can be held harmless. Perle, spond to a letter from Mr. one of the subject Because find denial of allocution we parents. discussing impact victim’s analysis, error we remand to harmless sentencing, of the letter at the trial court the district court to determine whether attorney said “I to Boardman’s don’t in this case. was harmless you if know saw There has [the letter].” magnitude Most errors either been determination ex- subject analysis, are to harmless error attorney Boardman or his saw the letter. cept to fair trial those “which are so basic Furthermore, do not know what state- that their infraction can never be treated ments Boardman would have made to the Fulminante, harmless error.” Arizona record, on this we are court. Based unable — 1246, 1263-64, U.S.-, to determine whether the error was harm- J., (Rehnquist, writing L.Ed.2d 302 less. We remand a determination Court); see section II for also Clemons letter, see the whether Boardman did Mississippi, in his what said (1990) (Constitu 108 L.Ed.2d 725 permitted speak. If the district tionally apply permissible to harmless error determines that denial allocution was analysis instructional error that affected harmless, the case should be returned sentencing). Court has dis courts so Boardman can be state tinguished between errors which affect exercising resentenced after pro “the within which the trial framework allocution. ceeds,” harmless, can never be and REMANDED. Fulminante, REVERSED errors in the trial itself. errors, at 1265. The latter class of HALL, CYNTHIA HOLCOMB Circuit they significant implicate even when Con Judge, dissenting: rights police stitutional involve serious misconduct, subject are to harmless error by finding I majority believe the errs analysis. right Id. Denial of the of allocu right had a that Boardman constitutional trial, in tion is error an conduct personally address court at sentenc- process. a in structural defect the trial view, ing. my majority In transforms such, not a As find that it is fundamen into a the common law of allocution may tal and so treated as harm defect major- federal constitutional mandate. The agree less. We with the Fourth Circuit’s ity’s holding is at odds with the wide discre- Ashe, re approach in in which the court enjoyed by sentencing judges tion and manded the district court a determi process rights of accordingly narrow due actually the defendants nation whether sentencing. majority, defendants at they and speak, asked to what moreover, cavalierly unwisely places and given requested opportunity. if said stamp “hybrid repre- approval upon its by defendant al- prove to be irrel- sentation” of a criminal Should information lowing advantages all evant of state- or cumulative view through counsel. Limitations on Criminal Procedure pro se proceeding (1982) (constitution 18.02, I at 299 does not respect, must dissent. all due With § require hearing provide but most states I one). majority’s opinion Part III of the sentencing hearing, provid- notes that a outset, analysis majority’s At its ed, stage is a critical for Sixth Amendment by failing to wrong track onto the veers purposes. to counsel That observa- of due general contours examine tion, however, nothing does to further our sentencing proceeding to before process at analysis of the Due Process question of allocution. highly specific mandates a to allocution. Clause process is due a defen- what To determine supra, McNamara, 18.02, R. sentencing proceeding, § in a state court dant v. New look to Williams first we must evidentiary pro- Stringent procedural York, 93 L.Ed. 337 U.S. unnecessary sentencing tections are at be- Williams, (1949).1 In cause the reasonable-doubt stan- “[o]nce by state imposed a upheld a sentence applied to a dard has been obtain valid report presentence of a judge on the basis conviction, criminal has been ‘the sharply dis- containing hearsay. The Court constitutionally deprived liberty of his appropriate for the procedures tinguished may the extent the State confine from criminal trial guilt phase of a state ” Pennsylvania, him.’ McMillan v. sentencing deter- for the appropriate those n. 2419 n. mination: Meachum v. (1986) (quoting 91 L.Ed.2d 67 guilt of a defen- passing Tribunals Fano, 215, 224, 96 S.Ct. 427 U.S. hedged by always dant have been (1976)). Thus, judge 49 L.Ed.2d 451 a procedural limitations. evidentiary strict upon hearsay presented within a may rely American and since the But both before investigative report. presentence nation, courts in this a colonies became Williams, 249-51, at 69 S.Ct. at policy England practiced country and Wondrack, 1084-85; sentencing judge could under which also see (9th Cir.1978); 809-10 in the sources a wide discretion exercise States, Farrow v. United him types used to assist of evidence Cir.1978) (dicta) (“[A] defen- n. 25 determining and extent of the kind to cross dant has no limits imposed within punishment to be supply information who examine witnesses by fixed law. rec- sentencing.”). “We must on in relied judge’s at 1082. The at of the information now ognize that most accommo- wide discretion by judges guide them upon relied tailoring a sen- policy of dates a state’s intelligent imposition of sentences would culpabil- defendant’s tence to the individual were restricted unavailable if information Id. capacity for reform. ity and open witnesses given Williams, at 1083-85. subject to cross-examination.” Thus, 69 S.Ct. at fact, right to is no constitutional there at sen- all, information considered hearing most states but “by ‘some hearing. Specht v. tencing only supported need be a provide for such do ” v. Brothers Patterson, 1209, basis.’ 605, 18 minimum factual 87 S.Ct. Dowdle, 1388, (9th 1390 (no sentencing (1967) 326 to a L.Ed.2d Petitto, v. 767 (quoting hearing); in a hearing participate such or to (9th Cir.1985)). 607, McNamara, 611 B. Richard recognized that Court before the has was decided Court’s attention 1. Because the punishment from of kind upon process to defen “death is a different the due been focused other"). appears the cases, to remain any to Williams capital must be careful not in dants sentencing hearings analyzing starting point capital applicable and non- rules to confuse the Arave, Florida, v. 947 non-capital See Creech sentencing. cases. capital 430 See Gardner Cir.1991); 873, 1197, 1204-05, v. Dow 349, 357-58, Brothers 51 F.2d dle, 880 Cir.1987). 1388, (Williams (1977) opinion) (plurality L.Ed.2d personally allowing Boardman re- without does process though due Even not, Boardman does to the letter. respond sentencing a provide a state court quire of not, that consideration argue could pro- Clause does Process hearing, the Due process violation. a due was itself the letter These sentencing. on limitations vide some of the effects parent’s account from sentencing judge prevent limitations has his victim behavior Boardman’s information. materially untrue relying on satisfy due basis to factual sufficient First, a Brothers, F.2d at See has Indeed, Supreme Court process. upon prior rely may not sentencing court statements” impact “victim such held that in violation obtained convictions sentencing. at by courts may considered Tucker, States United counsel. — U.S.-, Tennessee, Payne v. 593, 92 S.Ct. (1991) 115 L.Ed.2d v. Mor- States L.Ed.2d chal- eighth amendment over (upholding Cir.1979). gan, impact evidence victim lenge admission his sentenc- argue that does Boardman trial). capital sentencing phase at any such convictions. upon ing judge relied inability argues his only that Boardman defen- forbids a Second, process due his violated court personally “assump- upon being based sentence dant’s sentencing. Board- process at right to due which record his criminal concerning tions that showing no whatsoever made man has Townsend untrue.” materially [are] or information upon false relied judge 68 S.Ct. Burke, 334 U.S. nothing in proffered assumptions, and Burke, the (1948). In L.Ed. he would that argument to this court was violated due held that sentencing. to tell the liked have mistakenly be- sentencing court when — U.S.-, Idaho, Lankford Cf. been, convicted petitioner have lieved past. The crimes of certain sentencing when (due process violated prior erroneously recounted three had believe that counsel to defense judge led peti- sentencing when “convictions” of death considering imposition was not two of fact, acquitted of had, in been tioner then sentenced penalty and charges were charges and prior those “would death because Id. in the third. dismissed these that arguments addressed advanced emphasized that The Court at 1255. Thus, Lank- circumstances”). Burke cor- unable to was petitioner unrepresented judge’s refusal us that teach ford infor- mistaken court’s rect the did personally Boardman allow history: criminal about his mation refus that process because not violate severity of the duration or It rely upon judge did cause al constitutionally renders sentence information inaccurate designed or invalid; it is the careless Boardman. founda- on a of sentence pronouncement not rendered Moreover, was Boardman false, materially extensively and tion so respond to unable to opportunity to prisoner had Burke, petitioner Unlike letter. which counsel services by the correct by counsel. represented proceed- provide, that renders any communicated could have His counsel process. lacking in due ings or concerns arguments Boardman’s Thus, I believe “Underlying the sentencing judge. hang Boardman can only hook is the theme ... showing that upon ais process claim a due of sentence mitigation matters materially relied sentencing judge prior sentencing judge presented to fairly formulating his sen- information untrue Katz v. final sentence.” to rendition Cir.1980)(not- (1st tence. King, 627 process of due parameters sentencing ing uncertain argues Boardman deciding sentencing without non-capital considering by inappropriately judge acted is constitutional right to allocution victims of his parent of one from a a letter Thus, Hill, Green, and have cor- other statutory). Boardman could cases inter- or by 32(a) assumptions preting held simply erroneous Rule are any rected immaterial to Thus, I lawyer. through his procedures our determination of what sentencing the refusal of believe that Due Process Clause mandates in a state personally ad- Boardman judge to allow sentencing proceeding. right the court did not violate dress majority’s upon failure to focus process. due interpreting cases the Due Process Clause his- with the My is consistent conclusion process in order to discover what was due At common tory right to allocution. sentencing pro- his state court law, opportunity not an allocution was ceeding astray. has led it Both Burke and mercy plead for because defendant to process inform us that no due viola- Tucker mandatory for most of death was sentence tion has occurred here because Boardman Note, Due Process Procedural felonies. upon was not sentenced based inaccurate Felony, 81 Sentencing at Judicial or unreliable information. Boardman’s as- (1968). In- n. Harv.L.Rev. right sentencing serted to allocute at is not stead, give the defen- function was “to its grounded upon a desire to correct mistaken present one of a formal dant assumptive by or held factual beliefs legal reasons which re- strictly defined sentencing judge. Even had Boardman delay of sentenc- quired the avoidance grievances with the harbored then, me, ing.” 832-33. It seems Id. at beliefs, judge’s information or Boardman’s served allo- the functional interests provided ready for him to counsel avenue assigned properly to counsel cution can Thus, judge. convey those concerns to the at 833 judge. See id. by a majority’s conclusion that due (“Since to the allo- an affirmative answer right at sentenc- mandates a to allocution showing legal of a has to be a cutus ignores larger is error because pro- why sentence should not be ground upon pur- process structure which it nounced, appropriate, seem where it would ports rely. counsel, put ques- the defendant defendant rather than to the tion to counsel

himself.”). II 32(a) Procedure Rule of Criminal Federal effectively grants majority’s holding right of allocution now mandates representation right hybrid Boardman a criminal trials. The in federal be afforded the constitutional by holding that he had inter- heavily upon cases majority relies directly with the right to interact rule to discover a Constitution- preting that by coun- though represented he was even See, e.g., Hill v. right to allocution. al has cautioned that Supreme Court sel. The States, United representation is not mandated hybrid Green L.Ed.2d McKaskle v. Amendment. See the Sixth States, 168, 183, 104 S.Ct. Wiggins, 465 U.S. however, cases, Those L.Ed.2d (appointment of Constitution nothing about what the tell us right to does not violate standby counsel sentencing pro- state court mandates defendant pro se self-representation, but (rule Note, supra, at 832 ceeding. See assistance). such may not demand right). any- If 32(a) law codifies a common expressly must A criminal defendant us that thing, Hill teaches Amendment his Sixth unequivocally waive in the Constitu- embodied to invoke order fed- failure of the held that the tion. Hill Carroll, Adams self-representation. sentencing judge to ask eral Cir.1989). When a sponte whether wished sua presumed to he is equivocates, 32(a). Hill, of Rule was a violation of counsel assistance requested the The Court 82 S.Ct. at 470. U.S. at self-repre exercising not constitu- plainly held that the error was to be believed generally 82 S.Ct. at sentation in nature. Id. at tional 1534 yet has not decided Supreme Court The of defendants best interests

against the Teague may the waive Ylst, a state 921 whether v. Jackson law. the untrained it. timely raise by failing Cir.1990). defense Boardman (9th 889 F.2d Arkin, Dilemma: Prisoner’s The a desire Marc M. expressed unequivocally no time Courts Federal forego assistance in the Lower represent himself After Life Craven, Lane, 482 415-16 v. N.C.L.Rev. See, Teague v. 69 e.g., Meeks of counsel. Cir.1973) govern- state- (9th (“The of when (passing question 467 F.2d invoking right nonretroactivity to self- Teague may ment of defendant waive a ment equivo- “prototype of a While representation clearly settled.... defense claim Thus, cannot cation”). decided has now Supreme Court right of upon based right to allocute explicitly waive may government did not he because self-representation claim, nonretroactivity has Teague representation. right waive regarding guidance lower courts given such under circumstances any other defen- imperiling criminal In addition (footnotes found.” a waiver counsel, majority’s dants’ omitted)). integrity seriously undermines analysis creating “a constitu- by trials of criminal one) have this (including circuits Some appear- choreograph special right to tional not, waiver, but others allowed Wiggins, by counsel.” ances analy any significant engaged none has re- (mocking such 953 S.Ct. at Lewis, v. Adamson issue. See on the sis analysis, a majority’s sult). Under Cir.1992) (9th (Teague 614, 615-16 955 F.2d about vacillates who criminal defendant fifth time on argued first for defense represented to be he chooses whether de proceeding; en banc third appeal and argue on always be able will counsel raised at appropriate fense “not denied he was either that appeal Thurman, v. stage”); Coe late assistance (authored opin Cir.1990) (9th n. 1 I believe Because represent himself. 1991)(court addition per curiam ion with un- most opinion is therefore majority Teague defense “discretion” to has dissent. wise, respectfully I petition for time the first raised for case, Boardman in this opinion slip Dixon, Maynard v. rehearing); (9th op. 105 slip Estelle, No. v. Cir.1991)(“assuming, without (4th fol- 9, 1992), supplemented Jan. Cir. its defense waived deciding, that the State lows: may have been non-retroactivity ... Lane”), Teague v. to it under available — U.S.-, denied, CURIAM: cert. PER Black, (1992); v. Smith L.Ed.2d case, in this opinion In our earlier (“we Cir.1990) (5th n. 12 904 F.2d criminal that a we held reach the choice is the better believe his sentenc speak at right to State”); pressed issue now Teague affirmatively requests hearing after Scroggy, v. Kordenbrock Estelle, 90- No. so. Boardman to do (“The banc) Cir.1990) (en n. 4 1992). Jan. Cir. slip op. on argument based any waived state has time, the first contends state now — U.S.-, ”), cert. Teague holding our rehearing, that petition ain Hill L.Ed.2d habeas, in violation rule” a “new created McMackin, Lane, 489 U.S. Teague doctrine address the did not parties (“Although the 1060, 103 L.Ed.2d 288, 109 S.Ct. ap- may be rule ... question belatedly has the argues it The state com- find ourselves retroactively, we plied (new-rule) de the Teague itself of to avail Teague v. light of ... do so in pelled to rehearing petition for deny the fense. other Lane....”), disapproved Teague has waived the state — Nunnemaker, Ylst grounds, in this case.

1535 130, Granberry’s petition. L.Ed.2d 706 habeas Id. at -, 115 111 S.Ct. Jabe, appeal F.2d 107 S.Ct. at 1673. On from the (1991), v. 951 noted in Couch as curiam); argued petition, dismissal of the Illinois (6th (per Hanra 96 Granberry first time that had not ex- Thieret, 1337 n. 19 the 933 F.2d han — remedies; U.S.-, Granberry Cir.), denied, 112 hausted state cert. (1991); Hopkin claimed the issue was waived. Id. L.Ed.2d 464 S.Ct. 1286, 1288(10th Shillinger, 888 son v. opinion The heart of the Court’s banc) (“We Cir.1989) (en that the non- hold history principles considered the be- waived, and defense is not retroactivity requirement: “comity hind exhaustion — considered”), cert. should be federalism_” 134, 107 Id. at S.Ct. and. U.S.-, S.Ct. Noting importance good at 1675. Dugger, Card relations, federal-state the Court none- (11th Cir.1990). n. 30 to “take a theless instructed the circuits look at the issue” of waiver when the fresh timely Ordinarily, arguments not to raise the exhaustion state had failed E.g., deemed waived. Wine presented are in 851, defense the district court. States, v. United brenner Cir.1991). general This doc n. 7 case, of this For the resolution Granber- arguments raised applies to trine of waiver analogue provides Young- than ry better petition in a for rehear the first time case, Younger, Like this and unlike er. Lewis, ing. States v. a waiver the state Granberry deals with (9th Cir.1986) (order amending 1250, 1250 Further, corpus of a habeas defense. F.2d 1318 opinion published at 787 case, in like Teague defense at issue Cir.1986), denying petition for rehear in defense at issue Gran- the exhaustion banc). rehearing ing and en comity grounded in concerns for berry, is Compare and federalism. Collins argues implicitly Teague The state 37, -, 110 S.Ct. Youngblood, 497 U.S. rule, ordinary subject to this defense is not (1990) (“the 2715, 2718, 111 L.Ed.2d 30 however, doctrine is Teague grounded important con- Teague rule is comity in concerns for and feder grounded relations”) with of federal-state 308-10, 109 siderations Teague, 489 U.S. alism. See U.S. at 107 S.Ct. Granberry, 481 Harris, 1073-75; Younger v. S.Ct. at cf. (discussing comity “the interests 750-55, 37, 43-54, the ex- as the basis for and federalism” (1971), Teague, cited in L.Ed.2d 669 doctrine). haustion may A state U.S. at statement, only by express Younger waive distinguishable Granberry is Of course issue. through failure to raise the See petitioner a habeas from this case because Employment Bureau Servs. Ohio his state remedies to exhaust who fails 471, 480, 97 Hodory, he has federal court once may return to (1977). Thus, 52 L.Ed.2d 573 Thus, the issue exhausted those remedies. might appear analogy Younger, it to reach Granberry was whether implies nonwaiver of by the state silence now, petition or later. merits of habeas defense. Teague Granberry, 481 U.S. timing The rule is one at 1675-76. pursuing analogy Rather than when, federal if, therefore controls however, analogy follow an Younger, a state court conviction. will review Granberry v. courts to home: is closer to reach the Here, issue is whether Greer, reasoning now, But the or never. (1987), Supreme merits a unanimous L.Ed.2d 119 de- nonexhaustion Granberry on the by a discussed waiver decision which Teague defense. applies fully to the fense habe- of the nonexhaustion state distinguishable, but Granberry Illinois filed corpus. Granberry, In way.1 meaningful 12(b)(6) response motion Fed.R.Civ.P. Youngblood, "jurisdictional.” Teague rule is Youngblood, noted the the Court relief, federal habeas for claim spondent’s analogy to imperfect Following the be therefore should that defense and instructive is approach its Granberry, waived”) Granberry, 481 U.S. with deemed

here: (“The appellate 133, at 107 S.Ct. han- ought to appellate court an How regard the obligated to is not ... court petition when habeas a nonexhausted dle as argue nonexhaustion] State’s [failure objection this raised not has the State claim”). of the absolute waiver an might that question a court is district the extreme, fail petitioner’s a ways. the other different At in three answered be remedies, peti a like state the to exhaust silence on ure the State’s might treat on a new reliance preclud- tioner’s default procedural as a matter bar to considera rule, “an inflexible is not on raising issue the from ing the State Young Compare the merits.” tion of extreme, might we At the other appeal. (“Although the blood, at 2718 bar inflexible as an nonexhaustion treat con important grounded rule Teague peti- of the merits to consideration relations, we of federal-state sideration court, therefore and federal by the tion in the sense ‘jurisdictional’ think it is not when dismissed petition a be require that grant of Court, despite limited a this that a failure has been there appears it issue certiorari, decide the raise and must adopt third, might an Or, we to exhaust. ”) Granberry, U.S. with sponte sua direct and approach intermediate already (“We have at 1673 exercise discretion appeals of courts state to exhaust failure decided adminis- whether case to decide each deprive appellate an does remedies be better served justice of would tration consider the merits jurisdiction of court reaching byor insisting on exhaustion by application”). corpus a habeas of petition forthwith. merits eliminated, Gran- extremes the two With (footnotes S.Ct. Id. at ap- for “middle course” a berry articulates omitted). confronting a defense habeas courts pellate apply to possibilities same three first for time the state by raised to a objection raise failure to an state’s Granberry, 481 U.S. appeal. Con- on new petitioner’s reliance habeas state When the S.Ct. here, as in And Granber- rule. stitutional otherwise, inadvertently or fails, whether first already has excluded ry, the Court non- arguably meritorious raise an possibilities. two defense[,].... [t]he exhaustion extreme, failure the state’s the first At the interests determine Teague defenses the exhaustion to raise be better will comity federalism and state, by “procedural default” is not forth- addressing merits by served appellate bar absolutely does not and ... with. de- raising sponte those from sua courts Parks, 494 U.S. Compare fenses. Saffle held in trial has been a full [I]f 1264 n. n. evident that district J., (Brennan, dissenting) L.Ed.2d occurred, it justice miscarriage of ar- (“Although case briefed [this] court of for the appropriate may ... be parties Teague, gued after neither nonexhaustion appeals to hold retroactivity any amicus briefed nor has been waived.... defense Moore, issue”) and Zant 1675-76. 107 S.Ct. at Id. at 1518, 1519, 103 L.Ed.2d 837, 109 S.Ct. is the too, course” the “middle Here J., dissenting) (“petitioner did (Blackmun, have discre- appeals courts re- course: retroactivity a defense best raise suggest might the Court motion)." This authority proposition, at 2718. As analo- as the best Amendment following the Eleventh provided "Cf. sees citation: more Without Fla., of this case. Regents gy for the resolution Patsy v. Board of however, Court, guidance from the explicit n. n. the Eleventh Amendment into (Eleventh not delve will ... Amendment need Granberry at hand. is so close Court on own when raised and decided its court, tion, required, to address a fore the district we may but are consider it interests defense raised for the first time waived Teague comity, federal- (or, perhaps, petition justice served.”); in a ism and appeal even cf. Ylst, rehearing). As the Court noted Gran- Martinez v. 1156-57 (9th Cir.1991) (finding berry, waiver state of argument petitioner raised nonconsti- expressed have also our reluctance [w]e tutional corpus, claims on habeas citing party to adopt rules that allow a with- cases). raising hold a defense until after case, proceeding ‘main event’—in Stone, We will follow where this court Although in District Court—is over. held the exhaustion defense waived be- record indicates that the State’s fail- cause: in ure to raise the nonexhaustion defense The already district court has held a full inadvertence, this case was the result of trial, adequately and the state has not tactics, rather than a matter of it seems justified its failure to raise the issue at adopt permit, unwise to a rule that would Moreover, that time. reversal of the dis- might encourage, the State to and even grant trict of habeas relief] courtf’s ruling seek a favorable on the merits would force prison Stone return to holding the ex- the district court while a sentence that a federal court has de- for use on haustion defense reserve clared unconstitutional. The interests of necessary. appeal comity require federalism and do not injustice. Granberry, 481 U.S. at 107 S.Ct. at such an (citations omitted). and footnote Sub- Stone, above, 894 F.2d at 1135. As noted stituting for “exhaustion” and “Teague” reasoning applies of Stone with even perfectly yields “non-exhaustion” above greater force here because California inex- argument allowing tailored favor plicably Teague failed to raise the Teague court to find waiver of the defense. appeal. both in the district court and on Indeed, case, “main only in this is the We will not save the state from such a completed, the rematch is finished event” gaffe. has enforced well, dealing as because we are with procedural peti- strict forfeitures habeas rehearing. petition for efficient and final tioners in the interests of Following Granberry, have discretion adjudication. Why should not the state be question reject Teague defense. The pedestrian appel- rule of similarly held to a then becomes: how should we exercise that procedure? Concerns of federalism late In Granberry, discretion this case? respect judg- a state’s criminal and Supreme Court advised: marginal here because the state ments are That discretion be exercised brought problem on itself. light existing, our of the relations under short, Granberry provides the best judi- system government, between the guid- consequently the best analogy—and cial tribunals of the Union and of the this case. ance—for the resolution States, recognition of the fact that appeal have dis- held courts of Granberry public good requires that those rela- waiver, on facts analo- to find cretion by unnecessary tions be disturbed here, this circuit gous presented to those equally conflict between courts bound Accordingly, we will has found waiver. rights guard protect secured rule claim. the state’s new not entertain Constitution. merit. arguments lack other The state’s (quotations at 1674

Id. at rehearing DENIED. petition omitted); Arave, 954 F.2d see Paradis v. (9th Cir.1992) (petitioner’s “fail- waived”); ure to exhaust his remedies is Godbehere,

Stone Cir.1990) (“Where, here, the state argument

failed to raise an exhaustion be-

Case Details

Case Name: Gary Stewart Boardman v. Wayne Estelle, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 11, 1992

Citation: 957 F.2d 1523

Docket Number: 90-55238

Court Abbreviation: 9th Cir.