Gene Andrew Austad v. Henry Risley and Thomas Sellers, and Attorney General Mike Greely, Additional And

multiplier applied work, to have a factor and the excellent results tled ter’s appellees that fee. The are therefore enti- achieved.” attorneys’ amount of tled to an fee 2412(d) express contains no au- Section $322,700. party Each shall bear its own multiplier. use of a Un- thorization for the appeal. costs on Congress approved contends derwood multiplier by its use of the part, of a use AFFIRMED in REVERSED “special factor” section term part.

2412(d)(2)(A)(ii). explains that She justify the use of a

term has been used under statutes

multiplier for awards made EAJA, including the Civil than

other Act, 42

Rights Attorney’s Fees Awards § VII, (1982); Title U.S.C.

§§ (1982); seq. the Rehabilitation 2000e et §

Act, (1982); Clay- and the 29 U.S.C. Act, ton AUSTAD, Andrew Gene Petitioner-Appellant, argu find We do not Underwood’s persuasive. important distinc ment Two apart the statutes tions set EAJA from all Sellers, Henry RISLEY and Thomas analogizes. The first is which Underwood Respondents-Appellees, places specific dollar that EAJA alone and hourly rate to awarded. limit on the statutory precise, limit is so Because the Attorney Greely, Mike Addition- General byit refuse to inflate without we 350% Respondent Appellee. al Congress stronger indication that intended No. 83-3933. for us to do so. Appeals, Second, United States Court of the statutes that unlike Ninth point, Circuit. uses to illustrate her Underwood against of fees EAJA authorizes an award Argued Dec. 1984. and Submitted We must consider care United States. May Decided government’s fully scope waiver sovereign immunity. We cannot or of its “specifical

der an award that has not been

ly unequivocally authorized Con Corp.,

gress.” Hoomissen v. Xerox Van Cir.1974). There Congress in

is insufficient indication that expose to com

tended to the United States hourly rate. We therefore

pounds may applied to multiplier

hold that a not be

fees awarded under EAJA.

VII

CONCLUSION entitled to a reasonable

Underwood is litigation and settlement

attorneys’ fee for performed in this

administration services attorneys are entitled

case. Underwood’s hourly speci- rate compensated

to be by the district court but are not enti-

fied Jardine, Thompson, Stephen-

Curtis C. son, Weaver, Falls, Mont., Blewett & Great petitioner-appellant. for Boochever, Judge, Circuit concurred opinion Hug, Margaret and filed Joyce Johnson, which Circuit M. Atty. Asst. Judge, joined. Gen., Helena, Mont., for respondents-appel- lees.

Alarcon, Judge, Circuit dissented and opinion.

filed BROWNING,

Before Judge, Chief WAL- LACE, ANDERSON, HUG, TANG, SKO- PIL, ALARCON, POOLE, NELSON, BOO- CHEVER, BEEZER, Judges. Circuit POOLE, Judge. Circuit Gene Austad was convicted jury in a homicide, Montana state court of deliberate robbery, sexual intercourse without con- aggravated sent and burglary. He was imprisonment sentenced to life on the con- homicide, viction of deliberate and to con- forty year secutive terms on each of the charges. exhausting other three After his remedies, Austad filed a writ the district court claiming that he had been denied a fair trial great pretrial public- volume of because ity created an hostility environment of impossible which made it obtain unbi- jury Falls, ased the area of Great Mon- petition alleged tana. The number constitutional deficiencies which district reviewed, all of which were denied. appealed only deny- Austad has the order involving change his claims of ven- ruling mentally ue and the that he was fit trial. stand Specifically argues Austad that the dis- findings trict court’s that he was not de- prejudicial publicity nied a fair trial due to are insufficient because the court did not independent make an examination of the exhibits in the state court record which establishes certain defects to overcome publicity. 2254(d). presumption. included this appeal challenges findings charged place The crimes all took on the state trial court that he was fit to stand April inju- but because of severe jurors trial and that the him who tried were fleeing ries which Austad sustained while impartial prejudicial pre- not biased police, from the and because of various publicity. trial pretrial delays, place his trial did not take years petition until almost two later. The Supreme clearly Court has es pervasive coverage contends that the news ju tablished that the determination of a following commission of the offenses made partiality ror’s or is a factual bias determi impossible by jury it fair receive a trial 2254(d)’spresump nation to which section time, passage even with the of and there- applies. plainly tion of correctness “[I]t process required fore due that there be a of juror historical fact: did a [an issue] change of venue. The district court con- any opinion swear that he could set aside challenge light sidered in this constitutional might he hold and on the decide case presented of the whole state court record evidence, juror’s protesta and should the and found that Austad had not been denied impartiality tion of have been believed.” by impartial jury. trial an The district — Yount, U.S. -, Patton v. 104 S.Ct. judge noted that the state trial court had 2885, 2891, (1984). 81 L.Ed.2d 847 granted Austad exami- individual voir dire The determination of Austad’s fitness to and, motion, nation on its own had excused stand trial is also a factual determination. any juror expressed who reservations Dusky States, See v. United 362 U.S. ability about to accord accused the (1960) (per 80 S.Ct. presumption benefit of the of innocence. curiam). 2254(d)’spresumption Section of proceedings up voir dire took some applies correctness here as well. 2,000 pages transcript days. over 21 trial Fitness Stand Trial questioned pro- Counsel and the court spective jurors every person finally and mentally claimed that he was not juror seated as a trial or as alternate fit to stand trial because he sustained head passed for judge was cause. The district injuries high speed police as a result of a procedures adopted by concluded that the chase which left him with residual brain judge reasonably the trial were calculated damage. He suffering claimed also to be any hostility prejudice to reveal and that pain having from amnesia and and difficul Austad had not shown that those factual ty communicating his A with counsel. thoroughly sup- determinations not were comprehensive pretrial hearing inquiring record, ported and that his trial had into Austad’s mental condition con was panel been fair. A of this divided ducted the state court. The court com affirmed the district court. See 739 F.2d piled testimony a voluminous record of in (9th Cir.1984). granted petition We cluding internist, neurologist, that of an banc, to rehear this case en and withdrew psychologist, psychiatrist. clinical and a original opinion. See 743 F.2d 739 Austad, mother, lawyers his and one of his Cir.1984). also testified. The state court found him according fit to stand trial to the federal

We affirm. in Dusky, standards set out 362 U.S. Presumption Correctness finding 824 and that L.Ed.2d matter, As a threshold we must deter- affirmed the Montana findings mine whether the of the state Austad, Court State v. 197 Mont. challenged proceeding in a habeas —, 641 P.2d are, they are factual nature. If § 2254(d) requires Giving findings a federal habeas to the trial court’s findings presump- court to accord such of mental due under fitness deference § 2254(d) Mata, tion of petitioner correctness unless the and Sumner v. 66 L.Ed.2d 722 duced them nor shown himself unable do (1981), particular, so. In question the district court found no denial of our is whether the district process. due Austad had not court had a overcome the Austad’s case to order pretrial presumption of correctness of the state publicity exhibits from the state court court’s determination.

where the did not claim an inabil- ity them. Burden Production State Record Harris v. Pulley alleged, corpus Austad seeks a new habeas hear here, pervasive does Austad pre- because, although judge the district trial publicity and the trial court’s denial of had before him for review entire tran change his motion for of venue made a fair script proceedings, of the voir dire he did impossible trial pro- denied him due newspa have and did not review the 92 cess. The district court on per clippings tapes or transcripts of agreed with the Court’s conclu- radio and television newscasts which were pretrial sion that the publicity had not re- submitted in the proceedings state as ex quired change of venue and had not pretrial pub hibits and which constitute the resulted in denial of a fair trial. Harris licity complains. of which Austad produced had not any of the articles or exhibits, did not himself nor broadcasts; nor, case, unlike Austad’s had request did he the district court to order the district court examined the transcript production, expand their or to the record to of the voir dire examination. The Harris permitted include them as is under Rule 7 court held that § Governing of the Rules 2254 Cases Unless it is shown that the district court Instead, United States District Courts. he examined all parts relevant of the state upon bases his claim of error our decision record, court this court cannot affirm a (9th in Harris Pulley, v. 692 F.2d 1189 judgment district court’s dismissing a ha- Cir.1982) curiam), (per rev’d on other petition. (Citation omitted.) beas — U.S. -, grounds, 104 S.Ct. 79 692 F.2d at 1199-1200. The court stated (1984), L.Ed.2d 29 which he construes as that, petitioner alleges when a prejudicial requiring automatic reversal and remand pretrial publicity, parts “the relevant judge may so that the district examine the include, minimum, court record at a missing exhibits to determine the sufficien copies and, of the newspaper articles if cy of ruling the trial court’s concerning the available, any transcripts of television and obtaining impartial of an jury in the vici radio Citing broadcasts.” Id. at 1200. Ir nage Falls, Montana, of Great at the time Dowd, 717, 723, vin v. of trial. See also Bashor v. Risley, 730 1639, 1642, (1961), 6 L.Ed.2d 751 per — (9th Cir.) denied, F.2d 1228 cert. curiam court flatly stated that “the district -, should, necessary, request court and ex responds petition The state that it was the parts amine all relevant of the state court § 2254(d) er’s under 28 U.S.C. to es record to determine whether the record by convincing tablish evidence that the fac supports the state findings.” court’s Id. tual determinations of the state court acknowledging While that Supreme challenges which he were erroneous and to Mata, Court’s decision Sumner v. present any part necessary of the record 539, 550, 101 764, 770, S.Ct. 66 L.Ed.2d support his case. (1981), “requires a federal court in a We took this case en banc to reconsider proceeding generally habeas to accord a court, reviewing whether a federal a habe- statutory presumption of correctness of § corpus petition under 28 U.S.C. findings,” state court the Harris court required sponte up sua to call for inde- said, presumption “but such a is not re pendent specific portions review of a state quired if the federal court concludes that pertinent court petitioner’s record to the findings fairly supported by are not claim where the has pro- neither record.” 692 F.2d at 1200. violated, petition this court an- and dismissed without Pulley,

In v. Harris the district hearing. a rule that unless at 321. The nounced Id. at entire “rele- examined the fact appeals appeal. dismissed the Id. court of proceedings, of state court vant” record remanded, vacated and Court legal there could be no determination however, “the District Court erred because findings supported by are the state dismissing first sat- this without court did not con- the record. The Harris itself, isfying appropriate examina- statutory language of 28 U.S.C. sider the record, tion the state court this § mandating the district 2254 in thus proper the dismissal of was a case for opinion purports to fol- duty. court’s petitioner’s application hearing.” without a circuit, but the circuit prior low law this added). four-para- (emphasis its cited had also not con- precedents which it decision, however, graph the Court did not See, statutory language. e.g., sidered the scope “appropriate” on the of an elaborate (9th Chavez, Turner v. examination or on what constituted the dis- curiam); Cir.1978) Rhay, (per Griff “proper trict court’s “satisfaction” in a Cir.1972) curiam). (per F.2d Thus, Jennings sheds no direct case.” Dowd, Griff, as did Irvin v. Turner and light the issue before us. on rendered opinions looked Court Jennings The Court decided before the original Corpus Act of under the Habeas to the stat- 1966 amendment Congress and were decided before 89-711, ute. Pub.L. No. 80 Stat. See 2254(d) purpose enacted section for the (1966). Thus, to determine whether alleviating prime friction be- source of the district court must order the state court courts.1 tween state and federal motion, turn materials on its own we must No decision of the United States Su- statutory language. first to the Section in preme only Pulley and Harris v. Court part: in 2254 states specifically addresses the issue this circuit (d) any proceeding instituted in a Fed- Sain, 372 U.S. before us. Townsend v. by application an for a of eral court writ 745, (1963), 293, 83 S.Ct. 9 L.Ed.2d 770 a by person custody in habeas leading subject, that a case on the holds judgment to the of a State pursuant power compel pro- has the to district court court, hearing after a on a determination impos- duction of the state court record and issue, by made merits of a factual the obligation an to scrutinise it once it is es * * *, by court evidenced a written State received, impose not to but does opinion, finding, written or other reliable 316, at request sponte. the record sua Id. indicia, adequate written shall be at 758. S.Ct. correct, appli- presumed to be unless the petition Jennings to the Attached shall establish or it shall otherwise cant 321, 3 358 U.S. Ragen, respondent shall admit— appear, or the curiam), (1959) (per were a L.Ed.2d 296 constituting [Listing 7 circumstances supreme opinion court copy of the state procedural substantive or defects.] other doc- affirming his conviction and (8) part that of the record of or unless uments, record. not the state court but proceeding in the court which the State The district court at 79 S.Ct. at 321. of such factual issue documents, determination conclud- reviewed the included made, pertinent to a determination petitioner’s rights had not been ed that the Mata, habeas court. If none of those seven U.S. at federal In Sumner v. exist, the were found to or unless the Court said: conditions that relevant state- court concludes the habeas adopting the 1966 But amendment, it is clear that "fairly supported is not court determination 2254(d) Congress in intended § record,” upon by "the burden shall rest only the inevitable friction not to minimize convincing by applicant to establish evidence findings by made but also to establish that the determination the State that the factual system presumed be the state-court "shall was erroneous.” correct” unless one of seven conditions set original.) (Emphasis in 2254(d) was found to exist forth in sufficiency of the evidence to carry then he fails to his burden of estab determination, support such factual is lishing that the state court’s factual deter produced provided section [in mination fairly supported is not by the 2254(e)], and the Federal court on a record. United States ex rel. Green v. part consideration of such of the Greer, (7th Cir.1981); 667 F.2d 589-90 record as a whole concludes that such Gaffney, Thomas v. fairly sup- factual determination is not Cir.1976), denied, cert. ported by the record[.] evidentiary hearing pro- And in the course, Of the district courts ample have ceeding in the Federal due when permit discretion to or on their own motion proof of such factual determination has require production parts of relevant made, been one or more of the [unless of the record or other pursuant materials appear; above 7 circumstances or unless rules, to the 5, 6, particularly Rules subparagraph the court finds under 8] 11;2 they 7 and often do so. But to pro- that the record in the State compel judges district invariably to whole, identify ceeding, as a considered does not and order fairly support portions such factual determina- those tion, the upon appli- burden shall rest may state record may which or not by convincing cant to establish evidence support a habeas would only the factual determination shift to the court a responsibility which the State court was erroneous. asking bear, party should but would saddle (e) applicant challenges If the the suffi- upon already overburdened district courts a ciency of the evidence adduced such record-searching load of enormous dimen- proceeding support State court contrast, sion. In sensible the statute di- State court’s determination of a factual produce rects the the record therein, issue made applicant, complaint simply basis of his say why able, part shall so, he cannot do before the court pertinent record to a determination of charged examining with it. sufficiency sup- evidence to above, As we have set forth we believe port such appli- determination. If position this is consistent with Sumner v. cant, because indigency or other rea- of Mata, 539, 764, 449 U.S. 66 produce part is unable to such of son[J (1981). 722 L.Ed.2d Court record, produce then the State shall stated that the 1966 amendments in section part such the record and the Federal of 2254(d) by Congress court shall direct the were intended State to do so* *. as a jurisdiction

limit on the of federal trial and appellate courts to review the factual de- (Emphasis supplied.) terminations made state courts. We read the words of the statute as 2,n. 547 101 S.Ct. at 769 n. 2. The Court applicant a clear statement that the must Congress said that intended those limita- produce part pertinent” “that of the record tions to alleviate friction between state and challenge to his of a state court’s factual courts, federal id. at 101 S.Ct. at that, determination or assert “because of duty and that “it is the of reason,” [the indigency or other he is unable * *, jurisdiction to see to it that the Only Court] do so. then is the district court re statute, which is defined and quired limited produce to direct the State to § 2254(e). not appli record. 28 If exceeded.” Id. at 548 n. 101 S.Ct. at record, cant who is fails to able 769 n. quoting Louisville & Nashville power provides 2. Rule 5 addresses the of the district Rule 11 that the Federal Rules of Civil respondent provide court to order the addi- may applied petitions Procedure to habeas portions transcripts; tional of state court Rule 6 Governing filed under the habeas rules. Rules provides discovery; expansion for 7Rule of Cases, 28 U.S.C.A.foil. § § 2254. materials; the record to include additional and Denial Fair Trial Mottley, v. 211 U.S. Railroad Co. (1908). 42, 43, L.Ed. 126 The district court did not err in con it, cluding, Aus on the record before v. Although the Court Sumner trial. Even tad was not denied fair the alloca specifically not address Mata did though publicity not be exhibits were subject matter sec fore the district under tion of the burden clearly questions of the extensive voir dire 2254(e), sup decision the rationale of tion all of the areas of concern embraced of that section. ports interpretation a literal Austad, trial the state and the state court unambiguous interpre conclude that an We carefully judge, all of which were reviewed 2254(e) justifies a literal of section tation Moreover, the exten by the district court. production requirements. application of the prospec of each sive voir dire examination light the district court in that Viewed presence other juror out of the tive obliged publicity exhibits not obtain prospective jurors, seating jurors ruling petition, where on Austad’s before passed for whom defense counsel had stated presented the exhibits nor he neither cause, years passed and the two which to do so. that he was unable controversy the events in and between support the commencement of the trial all contrary interpretation would also ren A change of state court’s conclusion that a the Rules Govern superfluous der some of necessary provide venue was § § Cases, 28 U.S.C.A. foll. presents nothing with a fair trial. Austad that a district example, For Rule states presumption to overcome the of correct if, summarily petition dismiss a judge shall de ness which attaches to a state court’s examination, plainly appears it from upon mandated termination of factual issues any and exhibits the face of 2254(d) Mata, v. Sumner 539, 101 it is not annexed to contrary implications in Any Har Moreover, Id., relief. Rule 4. entitled to According disapproved. are Pulley ris v. that, clearly if the district Rule 5 states ruling court’s will be af ly, the district peti requires the state to answer firmed. tion, production of further may it order transcript on its own motion portions of Conclusion Id., upon request petitioner. Rule our decision have herein reconsidered We added.) ex (emphasis See United States disapproved Pulley and have in Harris v. Greer, F.2d rel. Green respect to the holding of that case with Cir.1981). already made referenc We have producing a state court responsibility for 6, 7, provi 11. The overall es to Rules cases insofar as Harris record inconsistent with sions of these rules are court has a sua held that the district duty upon the district court imposition of a the trial sponte to obtain and examine re to a record which the statute obtain petitioner the has not shown record where inability produce. petitioner The petitioner provide.3 his quires the * existing produc- transcripts *. of the be furnished clear that the burden of 3. Rule 5 makes heavily upon peti- ing the record does not lie Cases, provides part Governing in relevant 28 U.S.C.A. § tioner's shoulders. It Rules § that foil. 2254. Advisory Committee Notes state that Rule transcripts The answer shall indicate what requirement that the answer state what tran- 5’s trial, (of sentencing, post-con- pretrial, scripts are available "will serve to inform the available, proceedings) viction are when allega- petitioners as to what factual furnished, pro- they can be and also what Id., against can be checked the record.” tions ceedings recorded and not tran- have been (emphasis Advisory Committee Note to Rule 5 to the an- scribed. There shall be attached request supplied). may addi- Petitioner then transcripts portions as the such of the swer portions transcript respondent if tional answering party deems relevant. The court portions provided rele- request has not the he deems upon its own motion or on may portions vant. petitioner order that further Since, showing pro litigant, might require in se which no such this case.4 that made relied on Harris’ however, may 2254(d) he have district court the construe section production failing in to make precedent strictly against petitioner less the and fur exhibits, our affirm pretrial publicity the possible ther consider constitutional viola district court’s denial of Aus ance of the suggested by Judge tions as Alarcon. Cf. ought not deemed to con tad’s Kerner, Haines v. 519, 520, bar, grounds on of abuse of the stitute a 594, 595, (1972) (hold 30 L.Ed.2d 652 writ, petition, new presenting to his plaintiff stringent pro se to less stan advised, tendering the should he be so pleading plaintiff represented dards of than publicity in pretrial claim of adverse which Risley, Bashor v. by counsel); 730 F.2d supplement the he be entitled would (9th Cir.) (Haines applies rule exhibits, provided by record with — denied, cert. pro petitions), se habeas § Sanders v. See Title 28 2254. -, States, 1, 15, United by array hypo As illustrated (1963), 1068, 1077, 10 L.Ed.2d 148 codified thetical considerations ruled on the ma § in Rules Cases, Governing Rule jority judicial re appropriate footnote § (denial 9(b), pri- foll. 28 U.S.C.A. deciding straint dictates that we reserve corpus application for federal habeas § application 2254(d) of 28 U.S.C. controlling only prior was determination involving pro litigants cases se until States, Morgan United merits); on presented controversy. with a specific (9th Cir.1983) (same). Judge With this limitation I concur qualification, judgment With such opinion. Poole’s court shall stand AFFIRMED. the district Judge, dissenting: ALARCON: Circuit BOOCHEVER, Judge, Circuit concur- respectfully I dissent. HUG, ring, Judge, joins: with whom Circuit has concluded that a feder- represented by counsel. Austad was We involving may deny prisoner’s peti- not before us a case al court a state do have concurrence, petition requires petitioner 4. The concern expressed form of suggestion particularity. and the that the rule should be dif- See Model to state his claim with pro litigants, misplaced. ferent for se are Sec- Applications Corpus Form for Use in for Habeas it, impermis- tion as we construe does not 28 U.S.C.A. foll. under 28 U.S.C. sibly applicants, burden whether with or with- the trial itself but a collateral attack This is not suggested between out counsel. The distinction assump upon standing conviction. It is a safe represented petitioners ignores pro se and petitioner generally will know and tion statutory language which does not distin- clear broadly identify complaint the basis of his can contemplates guish between the two and which party proceeding, since he was a to the state be, initially, many petitioners will at least instances, trial, and, present raised in most We do not view the habeas without counsel. provisions along objection the same to the state courts imposing separate or rules as re- way towards exhaustion of his state remedies. appli- quirements pro represented for se and Moreover, judge ample the trial has discretion why provides very cants. That is the statute informed, por- require, once that a sufficient indigent plain language petitioner that if a produced that the tion of the record be so counsel) any (personally without or for "other" intelligent This was true can make an decision. produce, court will see to reason unable to judge trial read the voir in the case at bar: the obviously, production. that ina- But somehow transcript although the exhibits. A dire places bility must be stated. And the statute questioning dire and of the review of voir responsibility on nothing of the case convinced him that facts identify, and to what he wants both to had been identified in the exhibits which was he is unable to do so. unless is no reason not covered the voir dire. There 2254(e). reviewing the record trial to assume that Inability may the mere be established competence judges to know or will not have the require not the But the statute does statement. petition or the circumstanc- the will to act the partial initially up call an entire or part record which is es show that a of the doing brought for so is record until some reason missing obviously needed to determine is that the one seek to its attention. That means rights petitioner’s constitutional whether the court that he wants inform the aid must were violated. Indeed, help proving the habeas his claim. corpus alleging tion for a writ of a habeas determines that these exhibits that show right denial of his federal constitutional pretrial publicity prejudicial, was must prejudicial pretrial a fair trial because of proceed the district court consider newspaper articles and radio and television responses prospective jurors to the making independent newscasts without examination, precluded voir dire or is it examination of the exhibits introduced doing from so the law of the case? the state prejudicial court to establish the I judgment. would reverse the The Su- coverage. doing, nature of the media In so preme attempted Court has clear make majority rejects of this circuit law that determination of a federal constitu- recently expressed most in Harris v. Pul- prisoner tional claim a state cannot be (9th Cir.1982), ley, 692 F.2d 1189 rev’d on by reviewing made a court without an inde- — -, grounds, other 104 S.Ct. pendent examination of the relevant exhib- 871, (1984) 79 L.Ed.2d 29 and concludes proceed- its introduced at the state court longer compelled it that is no to follow the ings. decisions of the United States 276, Jennings following analysis, Court in In the I Ragan, 358 U.S. have set v. 321, (1959) (per applicable 79 S.Ct. 3 L.Ed.2d forth concerning law re- curiam) Sain, court, and Townsend v. 372 U.S. sponsibility of the state trial 293, (1963). 83 S.Ct. 9 L.Ed.2d 770 each federal when faced with a claim change compelled of venue was be- majority The tells us it is free to dis- prejudicial pretrial cause of publicity. decisions, regard spite these of the fact they process were decided on due grounds, Congress fair trial because has I Corpus amended the I Habeas Statute. Congress repeal

fail to see how can TRIAL COURT’S DUTY WHEN by simply Fifth and Sixth Amendments PREJUDICIAL PUBLICITY IS amending a federal statute. ALLEGED majority proceeds then to determine Where a defendant claims that he will be the merits of Austad’s claim that he was prejudicial denied a fair trial because of prejudicial denied a fair trial because of pretrial publicity, the trial court must ex pretrial publicity making without an inde- amine the media accounts to determine if pendent examination of the exhibits before publicity prejudicial. is See United majority the state court. The concludes Bailleaux, 1105, 1108-09 States v. 685 F.2d change that “a of venue was not neces- (9th Cir.1982); Abascal, United States v. ary provide Austad with a fair trial.” Cir.1977), cert. de (Majority Opinion, 1354). page Having nied, 435 U.S. 98 S.Ct. concluded, majority so inconsistently (1978). publicity If L.Ed.2d is not qualifies holding affirming its judg- See, prejudicial, inquiry stops. e.g., by directing per- ment the district court to Florida, 282, 302-03, Dobbert v. 432 U.S. filing mit the of a new writ of habeas 2302-03, corpus (denial setting forth the same issue (1977)(Court publicity determined that publicity), of a fair trial because of adverse prejudicial). notwithstanding the fact that this has publicity prejudicial, If the the trial decided the merits of Austad’s claim—i.e. a governed by Sheppard court's duties are change necessary of venue was not Maxwell, fair trial —and determined the law Sheppard, supra, L.Ed.2d 600 give any case. has failed to concluded, independently the Court after guidance regarding to the district court its accounts, examining the news that the trial duties should a second for a writ of precautions against court’s failure to take request containing be filed pretrial publicity deprived for the of the state court exhib- If, examination, Sheppard, its. after a fair trial. the district court

1357 Sheppard, Polizzi, imposed States v. S.Ct. at 1518. an obli 856, (9th 500 F.2d 879 gation denied, preju Cir.1974), on trial courts to ensure that cert. 1120, 419 U.S. 95 publicity deprive does dicial not the accused 802, 42 (1975); S.Ct. L.Ed.2d 820 Silver 362, Id. impartial jury. of an at 86 S.Ct. at States, thorne v. United 627, 400 F.2d 638 Similarly, requires this court a trial (9th Cir.1968). great judge aspects to exercise care in all relating publicity might of the case that II impair right

tend to defeat or the accused’s Giese, to a fair trial. See United States v. DUTY OF REVIEWING COURT WHEN denied, 1170, (9th Cir.), cert. 597 F.2d 1183 PREJUDICIAL PRETRIAL PUBLICITY 979, 480, 444 U.S. 100 S.Ct. 62 L.Ed.2d 405 IS ALLEGED Abascal, v. (1979); United States 564 F.2d reviewing challenge to the fairness denied, cert. 821, (9th Cir.1977), 833 435 of a trial grounds on the of prejudicial 953, 1583, U.S. 98 S.Ct. 55 L.Ed.2d 804 publicity, the reviewing court must first Pitchess, Farr (1978); 464, v. 522 F.2d 468 independently examine the record to deter (9th Cir.1975). See also CBS v. United publicity mine prejudicial. See For California, States Dist. Ct. C.D. of Sheppard, 384 U.S. at 362, 86 S.Ct. at 1522. 1174, (9th Cir.1983) 729 F.2d 1180 (holding reports If the media were prejudicial, that the trial court must examine the media Dobbert, then the claim must fail. See 432 analyze impact accounts and its when con 302-03, at 2302-03; U.S. 97 S.Ct. at Evans restraint). sidering prior Where there is Arizona, v. State 1122, 410 F.2d prejudicial pub likelihood that 1124 reasonable (9th Cir.1969). licity prior prevent trial, to trial will Those courts that a fair have re judge the trial must either: viewed claims of the denial continue the of a fair trial abates; publicity pretrial case until the due to publicity transfer the have independently county permeated case to another less with examined the containing exhibits news re publicity; sequestration or order ports volume, content, about the case for jury. Sheppard, 384 U.S. at 363, 86 S.Ct. timing to determine if preju it was — at 1522. The trial court must also conduct Yount, dicial. See Patton v. U.S. -, a voir dire poten allow examination of 2885, 2889-90, 104 S.Ct. 81 L.Ed.2d 847 jurors concerning exposure tial their Florida, (1984); Murphy v. 794, 421 U.S. prejudicial publicity. 357, See id. at 86 802-03, 2031, 2037-38, 95. S.Ct. 44 L.Ed.2d S.Ct. at 1519.' Texas, (1975); Estes v. 532, 589 381 U.S. 536, 1628, 1629, 85 14 S.Ct. L.Ed.2d 543 Court has also cautioned Louisiana, (1965); Rideau v. 723, 373 U.S. juror impartiality during statements of 724-25, 1417, 1418-19, 83 S.Ct. 10 L.Ed.2d the voir dire examination are not necessar Dowd, (1963); Irvin v. 717, 663 366 U.S. 351, ily dispositive. 86 S.Ct. at 1516. 725, 1639, 1644, 81 S.Ct. 6 L.Ed.2d 751 jurors exposed prejudicial pub When are (1961); Risley, Bashor v. 1228, 730 F.2d licity, probe the trial court has a — denied, (9th Cir.), cert. 1234-35 U.S. beyond jurors’ they assurances -, 137, (1984); 105 S.Ct. 83 L.Ed.2d 77 will not be influenced the media ac McDonald, United States v. 1350, id.; 576 F.2d See Marshall v. United counts. denied, (9th Cir.), States, cert. 927, 1354 439 310, 312-13, U.S. 1171, 360 U.S. 79 S.Ct. 312, (1978); 58 United 1172-73, S.Ct. L.Ed.2d 320 (1959) (per 3 L.Ed.2d 1250 cu Green, 372, States riam). The voir dire examination, F.2d there Robinson, Cir.1977); United States v. fore, simply must not jurors’ call for the (9th Cir.1976), cert. F.2d 311-12 de subjective assessment of impar their own nied, tiality, general and it must not be so that it also See Martin v. probe L.Ed.2d 597 possibility prejudice.

fails to 1170, 1183 Warden, Giese, Inst., Huntingdon States v. State Corr. United denied, (9th Cir.), (3d cert. Cir.1981), F.2d cert. 100 653 802-05 denied, (1979); United 1358 (1982); years

L.Ed.2d 306 elapsed United States v. Cha- between the first and second 1274, (D.C.Cir.), pin, 515 F.2d 1288 cert. “prejudicial publicity trial and therefore denied, 423 96 S.Ct. 46 greatly community was diminished and sen- L.Ed.2d 387 softened,” timent had id. 104 at S.Ct. the Court stated: publicity prejudicial, If the the re viewing court must then examine the tran The record year reveals that in the scripts voir dire examination to a half from the reversal of the first independent make an determination that conviction to the start of the second voir adequate to assure an voir dire was County dire each of the two Clearfield Yount, impartial jury. Patton v. 104 See daily newspapers published average an 2889-90; Murphy, S.Ct. at 421 U.S. at 800- of less than App. one article a month. 2036-37; Sheppard, 95 S.Ct. at 384 642a-657a; Pl-kk, Ex. Pl-V to P-2. 1519; Irvin, U.S. at 86 S.Ct. at importantly, More many of these were 1642; Bashor, U.S. at at S.Ct. extremely brief announcements of the 1234; McDonald, F.2d at 576 F.2d at 1354- scheduling trial dates and such as are Moreover, reviewing 55. court cannot common in rural newspapers. Eg., Ex. accept jurors’ impartiali assurances of Pl-ff, Pl-ii, Pl-jj. ty Murphy, as conclusive. 421 U.S. at See Id. 800-02, (Juror’s 95 S.Ct. at 2036-37 assur lay opinion independent ances that he can aside his This scrutiny of the exhibits present render a verdict based on evidence Supreme led the Court to conclude that the in dispositive ed court cannot be of the publicity “inflammatory” was not and did rights; juror accused’s reliability indicia of public passion” create a “wave of as may disregarded atmosphere where did the media accounts in Irvin v. Dowd. sufficiently Irvin, is inflammatory); only S.Ct. at 2889. It was this after 725-28, (Court 81 S.Ct. at 1644-46 independent examination of the exhibits beyond looked voir dire statements in as that the in proceed- Court Patton v. Yount sessing impartiality light pressures on ed impact publicity to consider the jurors to impartiality). Reviewing declare by the testimony revealed voir dire thus courts “have the to make an prospective jurors. Id. 104 S.Ct. at 2889- independent evaluation of the circumstanc Thus, majority, purporting while assessing juror es impartiality].” Shep [in rely Yount, ignored on Patton v. has pard, 384 U.S. at at 1522. S.Ct. process Supreme followed Court in also, Polizzi, 879; See 500 F.2d at Silvert applying presumption of correctness horne, 400 F.2d at 637-38. due to a findings pur- state court’s factual majority purports support to find 2254(d). short, suant to section In the ma- Yount, its views Patton v. 104 S.Ct. at jority has concluded that the district court’s seq. puzzling 2885 et This reliance is be- finding factual publicity that the was not Yount, cause in Patton v. correct, prejudicial presumed notwith- Appeals Court noted that the Court had standing the fact the district court did “independently examined the nature of the not review the offered to exhibits demon- publicity surrounding the second trial.” prejudice. strate Id. 104 S.Ct. at 2887. In the matter before majority, in its discussion of the us, the district court and the have law, existing following makes the state- failed make such an examination. ment: concluding that manifest error had not No decision of the United States Su- been committed the trial the Su- preme only Court and Harris Court, Pulley preme Yount, indepen- Patton v. in this specifically circuit address the is- dently examined the exhibits offered Sain, sue support before us. Townsend v. of his claim of a denial resulting prejudicial of a fair trial U.S. 293 9 L.Ed.2d from [83 770] publicity. (1963), pointing leading After out four subject, case on the holds that a district power court has the reviewing Austad’s claim without the state compel production of the state court required court exhibits. pre- We are to do imposes record and obligation to scru- cisely what the Court did in con- received, tinize it once it is but does not sidering presented the claim in Townsend. impose duty request the record sua We should judgment vacate the and re- sponte. Id. at 316 S.Ct. at [83 758]. mand for a whether, decision as to light in exhibits, of the (Majority opinion, 1352) state court page Austad’s (emphasis federal added). rights constitutional were violated. Only after such review the district court can quoted language is troublesome in proceed we validity determine the First, respects. three while we told are Austad’s claim. leading that Townsend v. Sain is “a case subject,” given on the we are no clue as to determining In whether there had been a subject the has mind. No- full and evidentiary hearing fair on Town- where Townsend v. Sain does the Su- claim, send’s federal constitutional the Su- preme subject Court mention the preme Court reviewed and summarized evi- production of court exhibits. dence adduced at the state trial court hear- Second, holding the actual in Townsend ing on the suppress. motion to Id. at 293- page v. Sain is set forth on 83 S.Ct. at 304, 83 S.Ct. at 745-753. The Court in following language: 756 in the Townsend duty described the of federal dispute, Where the facts are in the feder- reviewing courts prisoner’s a state claim of court, al in habeas must hold an federal constitutional violation as follows: hearing evidentiary appli- if the habeas Where fundamental liberties of the cant did not receive a full and fair evi- person are infring- claimed to have been court, dentiary hearing in a state either ed, carefully we scrutinize the state at the time of trial or in a collateral (Citations omitted). court record. proceeding. duty of the district court is no less exact- us, In the matter before no issue has been ing. concerning adequacy raised Id. at at S.Ct. 759. No such exact- hearing claims, in the court. state ing scrutiny was undertaken this court instead, that the federal district court vio- or the district court in this matter. right process lated his to due because of its true, While it is majori- as stated failure to review the state court exhibits. ty, Supreme impose that the Court did “not Third, quite it is while true that the Su- ” request sponte the record sua preme Court did not hold that a federal upon a federal district it is also accu- request court must the state court record rate to state that the Court did not order fairness, sponte, in sua it should also be upon Townsend the state record longer noted that this issue was no before remand. (Majority Opinion,page 1352). Supreme In ruling Court. an earlier The lesson of v. is Townsend Sain sim- vacating judgment of the Seventh Cir- ple and direct: a federal district court can- dismissing appeal, cuit Townsend’s evidentiary not determine whether an hear- Court ordered the district court to deter- required petitioner’s on a federal “whether, mine light in the the state- reviewing constitutional claim without record, plenary hearing court was re- If record. a federal district Sain, quired.” Townsend v. court dismisses a federal added). constitutional (emphasis at 749 S.Ct. reviewing claim without such record be- prior procedure, the federal district produced, cause it court had denied Townsend’s of habe- writ Court will remand with directions that the corpus solely pleadings on the without examining federal district court examine the state the state court record. That is majority, record. The precisely what occurred in the matter clear viola- be- Sain, fore court. The tion of Townsend v. has failed to this district court denied Jennings, and remand for a review of the Id. at 79 S.Ct. at 322. In reverse state court upon exhibits. Court relied Brown v. Allen, 97 L.Ed. Jennings Ragen, In its discussion of (1953) determining that the district failing court erred in appropri- make an (1959), majority, noting that after Jen- ate examination of the state court record. decision,” “four-paragraph nings was a Allen, In Brown v. the court affirmed the light no direct “Jennings states that sheds corpus petition dismissal of a habeas after (Majority Opinion, on the issue before us.” noting: complete record was “[s]ince 1352). page Court, before the District there was no Jennings cannot be dismissed so cavali- rehearing taking need for of further erly. certainly Jennings, It is clear that in 465, evidence.” Id. at 73 S.Ct. at 411. produce failed to the record Here, complete record was not before of the proceedings. state court Id. at Thus, the district court. there is a need to 79 S.Ct. at 321. federal district court appropriate remand for an examination of pleadings, dismissed on the notwithstand- the state court so that exhibits the district ing Jennings’ allegations that the state in- may, instance, in satisfy the first by physical “coerced troduced confession publicity prejudicial. itself that the was not by police mistreatment officers.” Id. at Supreme Until the Court its hold- disavows Supreme 321. The 79 S.Ct. at Court ings in Townsend v. and Jennings Sain judgment vacated the based on the follow- compelled to vacate court is this Ragen, ing rationale: matter, judgment in this and remand appears It from the record before us directions to the with district court to make petition that the District Court dismissed appropriate an examination of the state application making any er’s ex without court exhibits. proceedings amination of the record of in courts, simply the state and instead re I would hold that the district court failed lied on the facts and conclusions stated in duty, its spelled to fulfill constitutional opinion of the Court of Illi clearly Yount, in out Patton v. in assess- think nois. We that the District Court ing Austad’s claim of the denial of a fair dismissing erred in this without publicity. trial due The district court itself, satisfying by appropriate first an failed to examine the and then exhibits record, examination of the state court independently prejudicial impact assess the proper that this was a case for the dis coverage the media jury of on the entire petitioner’s application missal of a with panel as well as those selected to serve. hearing, principles in accordance with the Irvin, 1644; 366 at See 81 S.Ct. at Allen, set in forth Brown v. Sheppard, 384 U.S. at 1522. S.Ct. at 443, 463-465, 397, 410-412, S.Ct. [73 Moreover, examining the voir dire tran- (1953) Rog 97 L.Ed. 469 See also ]. scripts, improperly the district court relied Richmond, ers v. 357 U.S. 220 S.Ct. [78 juror’s indepen- on the assurances without (1958)]. It follows dently assessing impartiality light their judgment Ap that the Court totality of the circumstances. See peals must be vacated and the case re 800-02, at Murphy, 95 S.Ct. at manded to the District Court for further 2036-37; Irvin, 366 U.S. at at proceedings opinion. consistent with this repeated 1642. The has these er- S.Ct. at rors. It has not examined the state court they part is also Jennings v. exhibits because were not a Ragen The lesson uncomplicated straightforward: the district and a fed- the record before and it juror’s eral cannot dismiss a claim of has relied on the assurances in district court reaching the merits of Austad’s claim that federal constitutional violation “without process fair trial. The satisfying that no error oc- he was denied a first itself” by the district court and the ma- by examining curred the state court record. followed deprived of a fair deter- jority has state to do so order directed appropriate preju- of his claim that he State mination official. pretrial required by publicity, as diced § 2254(e). Yount.

Irvin v. Dowd Patton v. Because state court exhibits are not sale, indigency a “reason” other than applicants producing all from disables rele-

Ill in every vant exhibits matter under above, section 2254. As discussed Su- preme has it Court made clear that an majority attempts justify the dis- necessary examination of court exhibits is court’s failure to the state trict review prejudicial a claim is made pub- where by placing responsibility court exhibits licity has resulted the denial of a fair discussing petitioner, on the without trial. Where a court exhibit is essential to requirement suggested by the determination of a federal constitution- of similar Court’s review claims Irvin claim, required al the district court is Patton, reviewing that a court exam- 2254(e) directing section to issue an order alleged prejudicial ine the nature appropriate state court clerk to jur- publicity and thereafter evaluate the applicant exhibit because no is able to impartiality. of It reach- ors’ declarations so, regardless do of his economic means. by construing surprising es this result 2254(e) I would hold that requires section § 2254(e) requiring peti- that the U.S.C. order, the district court to enter an on its produce state court tioner exhibits. motion, directing appropriate own the state 2254(e) any not contain ref- Section does produce court official to all exhibits offered sup- the of erence to exhibits pretrial to that the publicity prej- show prisoner’s petition port of a state for a writ udicial, where a claim is made that the Instead, corpus. pro- of habeas the statute applicant was denied a fair trial because of able, applicant, pro- vides that “the shall if prejudicial publicity. majority The states part pertinent of duce that the record requirement that such a would “saddle sufficiency determination of the of the evi- upon already overburdened district courts a support dence to such determination.” 28 searching record load of enormous dimen- § 2254(e) added). (emphasis Unfor- 1353). (Majority Opinion,page sion.” tunately, fails discuss logical factual or basis for this observation “if meaning quot- of the words able” in the majority apparently is unclear. The had no 2254(e). passage ed from section These identifying trouble the essential exhibits significance tremendous to the words have newspaper clippings tapes as “92 and present non-indigent appli- ease. aWhile transcripts of radio and television news- purchase transcript reporter’s cant can casts which in the were submitted proceedings, prisoner, of the trial no state proceedings court and constitute which advocate, poor, is rich or or his able pretrial publicity of Austad com- which produce state court exhibits. Court exhib- 1351). Opinion,page (Majority As plains.” custody its are held in the of state officials. ably majority, demonstrated no required produc- A court order is for their record search of “enormous dimension” is recognition apparent tion. In of this fact— required to issue an order that all exhibits only produce i.e. that the state can an ex- containing newspaper reports and tran- Congress following included the lan- hibit — scripts of radio and television newscasts be 2254(e): guage in section burden, produced. any, identify- applicant, indigency, exhibits, If the ing because these fall on the state would produce clerk, or other reason is unable to court and not the overburdened fed- record, part majority’s holding such then the State eral district court. The record, produce part applicant claiming prejudice an shall such that be- must, in direct the cause of news accounts of a crime Federal Court shall case, every pro request- file a forma motion See, Bashor, under section 2254. e.g., ing that an order issued to direct (“Our the F.2d at as a federal court appropriate state clerk ex- sitting in habeas is to make an hibits, so, he is because unable do will independent record____”); review of the greater create a far burden on our federal Thompson, Pierre v. 666 F.2d judges. district court clerks and The ma- Cir.1982) (in order to review factual jority’s compels filing conclusion of a apply determination and presumption, obvious, useless motion that states i.e. the district court must review the state prisoner lawyer pro- a state or his cannot court record or conduct independent an duce an exhibit without a court order. The hearing); Gunn, Rhinehart v. 598 F.2d majority’s holding only has not exalted (9th Cir.1979) curiam) (“court (per substance, justifies form over the fail- but cannot affirm a judgment district court’s ure to address a fundamental constitutional dismissing unless the [habeas] question per- because the did not record appeal on shows the district form an idle act. parts reviewed all relevant claimed, prejudicial publicity Where an record”). state court See also Turner v. 2254(e) interpretation of section that re- Chavez, (9th Cir.1978) quires pro- the district court to order the (court specifically govern- considered Rules duction state court exhibits of news but stated that the accounts of the crime harmonizes the stat- district court must determine the sufficien- guarantees ute with constitutional of due cy findings of state indepen- from an Irvin, process and fair trials. See record, dent review of the or otherwise 81 S.Ct. at If a construction grant .hearing findings make its own fairly possible of a statute is which would merits). on the creating avoid a serious doubt constitu- given 2254(e) The majority has section tionality, adopt a court should that con- interpretation imposes a technical and Yamasaki, struction. v. Califano corpus inflexible to barrier habeas relief. 682, 693, 2545, 2553, 61 L.Ed.2d ignores This mechanical construction the majority’s The construction of concerning Court’s direction 2254(e) section renders it unconstitutional. interpretation governing of statutes interpret 2254(e) I requir- would section corpus Johnston, relief. In Price v. ing the district court to order state court 92 L.Ed. 1356 sponte uphold exhibits sua to its constitu- (1948), Court reminded us as tionality. follows: moreover, interpretation, This is com- Moreover, principle developed has pletely presumption consistent with the corpus that the writ of habeas should be applicable correctness to state court find- sufficiently left elastic so that a court § 2254(d). ings under 28 pre- may, in proper jurisdic- the exercise of its sumption inapplicable of correctness is tion, effectively deal any with and all fairly the factual determination is not sup- illegal forms of rigidity restraint. The ported record. appropriate ordinary jurisdic- which is to § 2254(d)(8). A district court cannot deter- applied tional doctrines has not been finding mine whether a state court’s this writ. supported by actually the record without majority’s 68 S.Ct. at 1059. The reviewing majority relevant exhibits. The interpretation of section 2254 will make it states that those which have im- courts impossible for this court to determine for posed duty on the district court to make petitioner’s itself whether federal consti- independent of the state review court’s rights tutional have been violated where no “presumption record did not consider the request has for been made (Majority Opinion, page correctness.” 1350). of exhibits introduced in the state however, This imposed has reviewing proceedings. majority’s rigid such a filed when cases con- 2254(e) sup- of section finds no claim in a on struction constitutional second writ highest process grounds. of our court. abuse of port the decisions type required by precludes It of review Thus, majority the result reached of a claim of the denial of Patton v. Yount does not for district courts for avoid work a fair trial. enough petitioners those fortunate to have lawyer, if incompetent, even and denies

IV equal protection unrepresented indi- gents. Congress cannot have intended EQUAL TO DENIAL OF PROTECTION such an unfair and unconstitutional conse- THE POOR AND UNREPRESENTED quence amending section 2254.

The rule created in this prisoner request requiring a state case— CONCLUSION directing district court an order from the I reverse and would remand this matter appropriate produce state court clerk to to the district court with directions to order of his federal constitu- support exhibits appropriate state court clerk to apply solely in the future tional claim—will containing newspaper the exhibits accounts poor unrepresented. and the transcripts of radio and television (and requirement any escape this avoid will newscasts. writ) by filing a new claim of abuse a writ of habeas be- attorney “may cause his have relied on [the failing pro-

law of the to make circuit] pretrial publicity

duction of the exhibits.” 1355.)

(Majority Opinion,page majority’s

After the effective date of the opinion, prisoners represented by America, UNITED STATES for a writ of habeas cor- counsel who file Plaintiff-Appellee, pus pursuant to section re- without questing an order from the district court compelling appropriate court official to LANCELLOTTI, Stephen Michael accounts produce the exhibits news Defendant-Appellant. crime, will be able to file a sec- about No. 82-1594. corpus claiming ineffec- ond writ of habeas Appeals, United Court of States assistance of counsel for failure tive Ninth Circuit. majority’s follow the decision this case.

Thus, in all future cases in this matter and Argued Sept. and Submitted 1983. applicant corpus re- where habeas Vacated Oct. 1983. represented lief is counsel who fails produc- request the district court to order Resubmitted Oct. 1984. exhibits, pretrial publicity tion of over- May Decided district court will be faced with burdened petitions for a two writ majority’s interpretation of

a result of the 2254(e). indigent prisoner

section An fails to re-

unrepresented counsel who production of such

quest the court to order crime will not receive

news accounts of the examination independent of an

the benefit he containing publicity

of the exhibits presumably prejudicial, and will

claims was his federal precluded presenting from

Case Details

Case Name: Gene Andrew Austad v. Henry Risley and Thomas Sellers, and Attorney General Mike Greely, Additional And

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 23, 1985

Citation: 761 F.2d 1348

Docket Number: 83-3933

Court Abbreviation: 9th Cir.