Patrick English v. United States of America, Derek Tano v. United States of America, Lutrell Davis v. United States

ENGLISH, Plaintiff-Appellant, Patrick America,

UNITED STATES

Defendant-Appellee. TANO, Plaintiff-Appellant,

Derek America,

UNITED STATES of

Defendant-Appellee. DAVIS, Plaintiff-Appellee,

Lutrell America,

UNITED STATES

Defendant-Appellant.

Nos. 91-16500 92-15368. Appeals,

United States Court of

Ninth Circuit.

Argued Nov. and Submitted 1992. Nov.

Decided 1994.

As Amended Nov. Honolulu, HI, Thompson, for

Jоhn Ashford English plaintiff- for plaintiff-appellant appellee Davis. Kawana, Terada, and Richard S.

Suzanne Honolulu, HI, plaintiff-appellant Tano. for Braceo, Atty., Honolu- Asst. U.S. Louis A. lu, HI, defendant-appellee for the defendant-appellant in Davis. and the NORRIS, BROWNING, Before: REINHARDT, Judges. Circuit REINHARDT; by Judge Opinion by Judge BROWNING. Concurrence REINHARDT, Judge: Circuit

Introduction attempt forces us to to make This case procedural morass that some sense of the cases, corpus. three surrounds habeas all magistrate presided over a United States the consent of the defen- voir dire without pending dants. the cases were still While Court Gomez 858, 109 S.Ct. v. United that it is held per for a se reversible error felony preside over selection in a trial without the defendant’s consent. Subse- quently, sought review in the each defendant Court, petitions none of the but Instead, certiorari raised a Gomez attorneys pursue the defendants’- chose petitions for collateral relief under 28 issue Although petitioners U.S.C. merits, clearly prevail gov- would on the argues ernment that we must overlook the simply transpired reversible error that be- attorneys cause their raised their Gomez peti- §in 2255 rather than certiorari claims Because, this circuit tions. under the law of (at purported least as of the time of case), procedural defaults in this there was requiring petitioners to raise no rule appeal, we must their Gomez claim on direct petitions. reach the merits of their Accord- judgments ingly, we reverse the dis- rejected English’s and trict court which petitions, judgment we affirm the July Tano’s filed certiorari 21. Neither granted issue, of the district court which Davis’s raised the Gomez and both petition. in early were denied October. 29, September 1989, On petition while his

Facts pending, English for certiorari was filed a raising motion appeal, English In the Gomez claim in this consolidated and the dis- § trict court judgment under 28 U.S.C. Tano from the of the dis- 2255. On Octo- Tashima) 10, ber (per Judge trict the district court an cоurt which denied issued order staying English’s § petitions. government ap- proceedings § 2255 2255 pend- ing completion peals judgment appeal. of his from the the district court direct Rosenblatt) (per Judge granted order stated: which petition. § Davis’s 2255 Although § may a 2255 motion be made time,” any alone, prudence “at if not tech- States, English A. No. United 91-16442 requirements, nical exhaustion dictate that abeyance the motion be held in pending States, Tano v. United No. 91-16500 final determination of defendant’s direct 1988, February English Patrick appeal. example, possible For it is Derek Tano were tried cocaine distribu on Supreme may summarily Court re- conspiracy charges tion in the United mand for light reconsideration in of Go- States District Court for the District of Ha Or, denied, mez. even certiorari is magistrate A presided waii. federal over the may Ninth favorably Circuit a entertain trial, jury selection of the for the defendants’ motion to recall light the mandate in of its practice previously upheld we had subsequent own in decision France. at least two occasions. See United States v. order, When the district court filed its it was Peacock, Cir.), 761 F.2d 1313 cert. de understandably Supreme unaware nied, 847, 139, 474 U.S. 106 S.Ct. 88 L.Ed.2d just English’s petition Court had denied (1985); Bezold, 114 United 760 States F.2d certiorari. (9th Cir.1985), denied, 999 cert. 474 U.S. 31, 1989, On October Tano filed (1986). petition 2255 which raised the Gomez English objected Neither nor Tano Adhering procedure to a similar to magistrate’s procedure. in role the voir dire it in addressing the one had followed En The defendants were each convicted on one glish’s petition, the court an district entered English count. The district court sentenced holding order Tano’s in eight years imprisonment and Tano to abeyance pending completion of his di years. three appellate Specifically, rect remedies. English appeals and Tano both took direct district court ordered in Tano to file this judgment. from the district court’s Howev- court a motion to recall the mandate in his er, their briefs on did not assert that appeal: by allowing mag- the district court erred Although §a 2255 motion be made preside istrate to over voir dire. In an un- time,” any prudence “at dictates that the memorandum, published this court affirmed abeyance motion in be held English May and Tano’s convictions on with file the Ninth Circuit later, 12,1989, 1989. One month on June petitioner’s in motion to recall the mandate per in that it held Gomez light of its own subse- pre- se reversible error for a quent decision France. jury felony side over selection trial. English filed a English for certiorari the Neither nor Tano filed motion July Court on Tano recall the mandate this court.1 they following earthquake 1. and Tano claim that did not file the Loma Prieta in October (1) 1989; (3) language government posi- such a motion because of this took the it; (2) precluded court’s decision in France this tion that the issue could not be raised for Gomez emergency court was closed to all but motions the first time in this court on The sec- court alleged that the district § 2255. He court deferred submission

The district by delegating error pending the reversible had committed English’s and Tano’s magis- to a federal in his case United selection Supreme Court’s decisions France, granted Davis’s district court trate.2 The curiam) (1991) (affirming January It held that (per L.Ed.2d Court), claim on and Peretz to raise the Gomez equally divided Davis’s failure in a motion to recall or direct review (1991). September a consis- On because mandate was excused petitions. authority See United prior it denied both Ninth Circuit tent line of (D. F.Supp. 791 Hawaii objection any States v. to the voir dire made 1991). that (2) court held futile; The district not have Davis could procedure on their Gomez Tano had defaulted and time in his for the first raised this issue failing object to the voir dire by certiorari; claims this court’s petition for and trial, appeal, or in a at on direct procedure earth- following the Loma Prieta рrocedures It further to recall the mandate. motion moving to recall quake prevented Davis from petitioners had shown neither that the held also held The district court the mandate. those defaults. prejudice to excuse cause nor set forth in procedural default rules that the timely appeals. English and Tano filed United States (1982), do not Davis, No. 92-15368 B. here, filed his apply because Davis January Lutrell Davis was tried conviction was final on petition In before his timely for the government States District Court filed a appeal. the United Hawaii, charges mailing on District of threatening and

threatening communication judge. A or murder a federal to assault Discussion magistrate presided over selec- federal Tano, by English, asserted The claim tion, objection any and Davis did not raise simple the district Davis is a one: that and Davis, jury convicted procedure. by allowing error court committed reversible him to 20 and the district court sentenced judge preside voir dire magistrate over years imprisonment. their consent. After at their trials without appealed, but he did not claim on Davis Gomez, clearly If this claim is meritorious. that district court erred allow- claim, the merits of the we reach voir dire. ing preside over the district court to vacate the must direct 31, 1989, May this court affirmed Davis’s On Tano, English, and Davis grant verdicts Davis, See United States conviction. government not contest new trials. The does (9th Cir.1989). Less than two weeks F.2d 71 argues government simply these facts.3 The 12, 1989, later, Court on June procedurally that defendants defaulted Davis filed a its decision Gomez. issued attorneys de claims when their Gomez July 1989. His petition for certiorari claims in the district court cided to raise the not contain a claim. The did Gomez relief, § 2255 rather than on motions for of certiorari Supreme Court denied the writ raising them for the first time on October or in mo in the Court certiorari government tions to recall the mandate. The September before the Su- On Tano, his for cer- further contends preme had denied tiorari, court a Davis have not shown cause Davis filed in the district defaults, purported and thus excuse their for a new trial under 28 U.S.C. motion least, argue any principle of nonre- ground, if not sanctiona- 3. Nor does it ond at is frivolous prevents reaching troactivity the merits us from ble. decided before in this case. Because was final, they petitioners' are convictions were ground supra, 2. As noted in note the third that decision. See Unit entitled to the benefit of clearly erroneous. France, 886 F.2d Cir. ed States v. 1989). district contemporaneous objection court had no discretion to at trial was not consider their claims. En- We conclude that necessary preserve question for review a glish, did not Davis involving jury instructions.” Id. at 7 n. their claims. There was thus no need for 104 S.Ct. at 2906 n. 4. Similarly, in Maxwell prejudice. them to show cause and Sumner, (9th Cir.), 673 F.2d 1031 cert. denied, Standard, Legal A. apply we refused to Although petitioners govern- and the standard when there was largely ment have arguments framed their no state rule which the defendant to question prej- around the whether cause and his raise claim on direct to the state petitioners’ udice exists for the failure to supreme court. scholarly thorough review, raise their Gomez claims on direct we opinion Norris, Judge authored we ex antecedent, must first face an question: plained only that it is violation of a state whether the failure to raise the claims consti- rule, and not the mere failure to Only tuted a default. claim, raise a triggers Taño, and Davis defaulted on their claims can default doctrine. See id. 1033-34. The require preju- them to cause show Seventh Circuit principle reduced this to a “ dice. aphorism: useful ‘[PJrocedural default’ re quires by-pass procedural the of a require prisoner A only defaults on a claim ment, merely by-pass proce not the of a when he fails to comply applicable with an opportunity.” Director, dural Brownstein v. procedural discussing proce rule. The cases Corrections, Department Illinois 760 F.2d of dural default in the context of federal habeas 836, (7th Cir.) 841 n. 2 (citing Maxwell with (in corpus prisoners pro for state which the approval), denied, 858, cert. 474 U.S. 106 mainly cedural default doctrine has devel 166, (1985). S.Ct. 88 L.Ed.2d 138 oped) point make this clear. As the Su preme explained Court in Coleman v. principle applies § The same in 2255 eases. Thompson, 501 U.S. 115 Unless the defendant violated some rule has (1991), § in L.Ed.2d 640 the 2254 context the required which him to raise a claim or forfeit ‍‌​‌​​​‌​​​​‌‌‌‌‌​‌​​‌‌​‌​‌​​​‌​‌‌‌​‌‌‌​‌​‌​‌‌​​‌‍procedural merely spe doctrine is a it, default, procedural there is no and the application cific general adequate of the cause and apply. standard does not independent grounds state doctrine. id. See point This is clear from an examination of the 729-31, Thus, at 111 S.Ct. at 2554. a federal only § two Supreme 2255 casеs in which the habeas court § will find a default in a 2254 preju Court has ever invoked the cause and apply case—and the requirement. dice See States v. Fra only petitioner if “the failed to standard — dy, 456 U.S. 102 71 S.Ct. L.Ed.2d applicable procedural follow state rules (1982); States, 816 Davis v. United 411 U.S. — raising Sawyer the Whitley, claims.” (1973). 233, 93 S.Ct. 36 L.Ed.2d 216 In -, -, U.S. 120 cases, each of proce these the found a Court (1992). L.Ed.2d 269 dural applied prej default and the cause and procedural

Absent a state only rule which udice standard after the defendant had requires a particular defendant to raise a specific procedural violated a failing rule penalty default, claim under of federal courts to Frady, petitioner raise his claim. In §in 2254 proce alleged will not find a erroneously the trial had court simply petitioner dural bar jury because the failed question instructed the on of malice. raise the claim at or trial For He raised this claim for the first time his Ross, example, in Reеd v. § 468 104 U.S. 2255 motion. failed to Because (1984), S.Ct. Supreme comply with Rule 30 of the Federal Rules Procedure, Court refused to find that the had party Criminal which procedurally on a challenge any objections defaulted to his jury raise instructions jury simply instructions because he failed to “before the retires to consider its ver object dict,” explained at trial. The Supreme Court Court held that he had time, “under North law at procedurally Carolina defaulted claim. See his 478 clear, prej the cause and 162-64, As Davis makes 102 at 1591-93. at S.Ct. rested on the to cases in which decision standard is limited

The Court’s udice specific procedural Rule 30’s application by failing petitioner has a claim defaulted Only the defendant vio- requirement. after procedural rule. More comply with some Supreme requirement did the lated that over, proce important to note that the it is default.4 find a Court at the rule must have been existence dural petition allegеd default. If the Davis, time of the made even In viola- to raise a claim did not violate that it was the er’s failure more clear defendant’s rule, not specific procedural rule —and his any then-existing tion of a he did not commit compelled a claim—that default, mere failure to raise preju and the cause and finding default. his apply. standard does not See Sanchez dice alleged the first proceeding, Davis 935 n. 3 v. United sys- had been time that African-Americans Ross, Cir.1986); see also Reed v. grand jury tematically from the excluded (refusing n. 104 S.Ct. at 2905-06 n. 12(b)(2) of indicted him. Because Rule case, procedural default in a find a Procedure Rules of Criminal the Federal despite petitioner’s failure to raise a “objections based on defects provided that review, on direct because “under North prosecution or in the institution of the time, contemporaneous law at the Carolina “by be- must be raised motion indictment” objection necessary” prе at trial was not waiver, penalty fore trial” review) added). (emphasis serve the issue for that Davis had defaulted his Court held explained Supreme Court most re As the Davis, 411 U.S. at See cently Georgia, Ford Rehnquist’s at 1579-81. Then-Justice S.Ct. 850, 112 gross it is opinion expressly distinguished for the Court ly purposes unfair —and serves none the 217, 89 v. United Kaufman respect procedural for rules —to forfeit an (1969). 1068, 22 L.Ed.2d Kauf- claim because he individual’s constitutional man, that is the Court had held 2255 relief firmly a rule that “was not failed follow prisoners raising constitutional available to question.” in Id. at established at the time they or not asserted those claims—whether at can 858. Before we consid claims on direct review—unless the defen- Taño, English, and Davis have er whether deliberately bypassed prior opportuni- dant prejudice, government shown cause id. at 220 n. ties to raise the See point firmly must us to some established at 1070-71 n. 1072. The procedural required rule which them to raise that Kaufman’s Fourth Davis Court nоted their Gomez claim at trial or on direct re subject Amendment claims were not to the view. because, requirement challenges composition unlike Davis’s grand jury, and seizure claims of his search Analysis B. subject express not to “the sort of waiver are government English, that The asserts 12(b)(2)

provision in Rule which contained Taño, proce- and Davis each committed two specifically provides par- for the waiver of a object by failing to dural defaults —first if it ticular kind of constitutional claim is not Davis, magistrate’s presiding the trial court to the timely at asserted.” dire, by failing over voir and second to assert 93 S.Ct. at 1581. procedural Frady rule at trial was essen- 4. The court's use of the term "double violation of default,” procedural apparently that he to refer to Fra- tial to the Court’s conclusion had violated 52(b) dy’s after he Rule on See 456 U.S. at failure to raise the claim retired, sug- jury does 102 S.Ct. at 1592. The Court did not did not assert it before the not Supreme gest single procedural change analysis. that it would ever find a this Court’s deci- simply procedural where the defendant failed raise sion to find a default rested on its default Frady of a had violated Rule 30 at a claim on absent some violation conclusion procedural Any did not viola- rule in the district court. such trial. Because correct his suggestion appeal by raising have with tion of Rule 30 on the issue as would been inconsistent Davis, 52(b), plain Rule the Court found a on which the Court relied. See error under However, Frady's second default. infra. appeal prior this claim on direct to our denial their claims on direct to this court is rehearing, of the for excused for the same reason as the failure to Court, for certiorari in the or in a raise the claims in the trial court. We decid- subsequent motion to recall petitioners’ mandate. ed all of the appeals before However, petitioners we conclude that Court handed dоwn its decision any procedural Thus, did not violate rule which was in Gomez. it would have been futile purported Taño, in effect at the English, time these de- for challenge Davis to purported faults. will procedures We address each de- selection ap- their direct fault in turn. peals. only question face, then, we must Object

1. Failure to in the Trial Court Taño, whether and Davis committed petitioners’ We conclude that failure to a failing to raise their object in the trial court to the voir dire Gomez claims for certiorari or procedure did not constitute a motions to recall the mandate in this court. default. Davis’s trials all We find no rule petition- place took before Gomez was decided. As ers to raise these claims in such a manner. France, (This explained any objection at surprising, is not filing because the of a futile, petition time of their trials would have been for certiorari or a motion to recall authority”’ because “a ‘solid ordinarily wall circuit unnecessary mandate is to ex- prior remedies). had Moreover, held it was not error haust one’s we con- magistrates felony petitioners conduct voir dire clude that the did deliberately not France, trials. F.2d at (quoting bypass seeking the available means of relief Yang, Guam 850 F.2d 512 n. 8 on direct review. Cir.1988) (en banc); Scott, (when At least as of 1989 petitioners’ (9th Cir.1970) (en bane)). 57-58 final), convictions became we adhered to the (and pointless Because it would be indeed Kaufman, rule enunciated in 2255 re

wasteful) require a defendant to raise such solely ground lief “cannot be denied on the court, objection a futile in the district we held sought by appeal relief should have been that, in France least cases that were prisoners alleging depriva constitutional decided, tried before Gomez was a defendant 223, Kaufman, tions.” 894 U.S. at merely by did not forfeit a Gomez Kaufman, prison 1072. Under a federal failing objection an raise in the trial court. er’s failure to raise a constitutional claim on Accordingly, ‍‌​‌​​​‌​​​​‌‌‌‌‌​‌​​‌‌​‌​‌​​​‌​‌‌‌​‌‌‌​‌​‌​‌‌​​‌‍See id. at 227-28. procedur does not constitute a Taño, object and Davis’s failure to the trial al default unless it amounts to a “deliberate prevent reaching court does not us from by-pass.” 3, Id. at 220 n. 89 S.Ct. at 1071 n. merits of their claims.5 3.Thus, general it has been the rule in this circuit that may “constitutional claims

2. Failure Appeal to Raise the Claim on raised in collateral even if the We also conclude that pursue defendant appeal.” failed to them on Davis procedural by did not commit a Schaflander, 714, United v. States 743 F.2d (9th Cir.1984) failing curiam) to raise their claims on direct (per (citing 717 Davis prior States, 333, 15, to our denial of the for rehear- v. United 345 n. 94 ing, 2298, 15, (1974); for certiorari in the S.Ct. 2305 n. 41 L.Ed.2d 109 Court, subsequent States, 160, or in a motion in Marshall v. United 576 F.2d 162 (9th Cir.1978)), denied, this court to Initially, 1058, recall the mandate. cert. (1985).6 petitioners’ we note that the failure raise Gamble, Similarly, petitioners' (9th Cir.1991) 5. (per because the trials оc- 943 F.2d 1031 curiam). curred before corrected this circuit's erro- preside neous rule that a could over Although quoted the sentence from Schaflander trial, jury felony selection in a their failure to specify petitioner did not under what a standard object magis- cannot be taken as consent to the may bring § a constitutional claim aon 2255 trate's conduct of voir dire. See United v. States (cause by- or deliberate 480 ty a claim on See United to raise recognized that and Davis

haveWe Dunham, n. claims” 767 F.2d 1397 & a class of constitutional v. “carved out States States, (9th Cir.1985); subject general to the rule iden 2 Abatino v. United that are not (9th Cir.1985). United Howev tified in 750 F.2d 1445 Kaufman. Schaflander Research, Inc., Spawn Optical 864 er, that the mere these cases did not hold (9th Cir.1988). However, 1467, 1471 F.2d review— failure to raise a claim on direct by and Davis have also noted specific procedural rule which re a absent only apply to claims “that run their terms it—constitutes quired the defendant to rаise Id.; provisions.” see express afoul of waiver fact, they In dealt with default. Corsentino, 685 F.2d States v. also United in Fra- precisely the same issue addressed Cir.1982) (2d (“Frady, [Wainwright 50 dy petitioner raise a chal —whether Sykes, Sykess predecessors, Davis v. jury instruction lenge to erroneous Henderson, 425 States and Francis object proceeding, 2255 when he failed 48 L.Ed.2d by jury required retired as Feder before the scope limited of collat concerned the In al Rule of Criminal Procedure 30. Abati- attack to raise errors were eral no, motion contended petitioner’s asserted at or before trial to have been court’s instructions had the district objection contemporaneous or state federal jurors placed pressure undue to reach a omitted). rules.”) (citations proce no Where petitioner violated fast verdict. Because the explicitly requires a rule constitutional dural by failing object Rule 30 appeal, at trial or on claim to be raised trial, allege instruction at and then failed ‘not held that the mere failure to “we have plain error on direct we held a constitutional claim on direct review raise prejudice requirement applied default and thus constitutes Abatino, 750 F.2d at bar his See of the in a col prevents consideration issue Dunham, claimed 1445.8 showing proceeding lateral absent of cause supplemental given in re that a instruction ” prejudice.’ Chambers United inquiry jury improper sponse to an from the (9th Cir.1994) (quoting 22 F.3d ly against him directed a verdict on the mens O’Mara, F.Supp. United States v. rea element of his offense. See United (C.D.Cal.1993)).7 Dorri, States v. Cir. 1994) situation). (applying Rule 30 in this sure, To be two of our cases have included opinion language Although our included language suggesting that could be read as requiring which could be construed as that a default occurs when a de- opportuni- application of an of the cause and stan- fеndant fails to avail himself Chambers, pass), analysis "[o]ur that the court was 7. As we noted in has it is clear Schaflander approach been consistent with the the Second endorsing the rule. sets forth a Kaufman Kaufman Circuit took in Corsentino.... As may general be rule that constitutional claims Schaflander clear, and O'Mara make we have not held that proceedings collateral even if the defen raised on claim, requir- a the failure to raise ing absent a rule appeal. dant failed to raise them on This rule is waived, proce- it a to be raised or constitutes subject exception govern to an for cases where the dural default.” Id. at 945. ment shows that the defendant committed a delib bypass. erate In cases in which the cause and (and Dunham) Frady, 8. Like Abatino included contrast, prejudice applies, by general standard the stating petitioner dictum that the had committed rule is that constitutional claims not be raised procedural by failing to correct a second they were defaulted on in collateral appeal by his violation of Rule 30 on direct subject exception This rule is plain raising the claim as error. Like the identi- petitioner prejudice. if the shows cause and Our cal dictum in this statement in Abatino language in is far more consistent with (and Dunham) suggest does not that even a Schaflander prejudice than the and where, here, rule cause single procedural default occurs as Kaufman Moreover, by two cited rule. cases required rule the defendant to raise the issue no Schaf support rely trial, lander court in of this statement both it at and the defendant later failed to assert Davis, Indeed, See 417 U.S. at 345 n. 94 on direct review. no case in this circuit Kaufman. (citing Kaufman, at S.Ct. at 2304-05 n. 15 394 U.S. has ever held that the mere failure to raise a Marshall, 1072); procedural S.Ct. at 576 F.2d at 161 89 claim on direct review constitutes a (citing Kaufman). default in that situation.

481 petitioner aрplies Campino dard whenever a fails to v. United 968 F.2d (2d Cir.1992). appeal, a claim at trial or on raise see Dun While it is far from obvious ham, 767 F.2d at our decision was recent Court decisions— again bottomed on the narrow rule an which all involve state court proceedings and object nounced the failure to quite all deal with different issues from —that required by to a instruction as Rule 30 question resolved fact over Kaufman —in procedural constitutes a default which bars Kaufman, rule ques need not face this showing collateral review absent a of cause least, tion here. In 1989 at was Kaufman prejudice.9 the law of this circuit. 1989, then, ap At least as of this circuit government has not identified plied Kaufman, the rule set forth in as em any specific procedural required rule which a imposed bellished in and Davis.10 We defendant raise a for certiorari general requirement no that federal defen or a motion to recall the mandate a claim dants raise constitutional claims on direct impermissibly conducted appeal. Only if deliberately the defendants dire, voir and we are not review, any able to discover bypassed spe or violated some such rule. Nor are any cific we able to requiring particular rule discover required rule time, this claim claim to be raised at a certain did we be raised Thus, all on Kaufman, direct review. find a default. We note that under one petitioners any circuit has did not procedur held the cumulative effect of commit (1) trilogy al long of recent default so decisions as their claim is consti based; involving tutionally 28 U.S.C. 225411 was to overrule their failure to raise imposed general require the claim on direct review did not constitute Kaufman ment federal defendants bypass. raise their a deliberate We conclude that petitioners claims on direct review or forfeit them. See did not default on their claims.12 " petitioner 9. A footnote in Dunham stated that the enough we have held to require 'not " had Hearst, defaulted a second claim—that there hearing.' (quoting was an Id. Cir.1980), transcript by failing (9th error in the trial denied, to raise it rt. — ce though obviously even it could not 451 U.S. 68 L.Ed.2d 325 However, have been raised at trial. (1981)). failure to assert this error on constituted a direct 10(e), Fed.R.App.P. violation of which states that - -, Keeney Tamayo-Reyes, See 11. "questions as to the form and content of the (1992) (apply- 118 L.Ed.2d 318 presented ap- record shall be to the court of ing prejudice cause test to the failure to Thus, peals.” squarely Dunham falls within Fra- develop proceed- 722, material facts state court dy's comply appli- rule that the failure to with an ings); Thompson, Coleman v. procedural requirement cable constitutes a de- (1991) (applying S.Ct. L.Ed.2d fault. prejudice cause and test to all violations of inde- rules); pendent adequate state purported 10. A case decided after the defaults Zant, 467, 495-96, McCleskey v. here, Johnson, United States v. 988 F.2d 941 (1991) (apply- 1993), Cir. also stated that a defendant who failed ing the cause and test to new-claim to raise a claim on direct must show cases). subsequent petition in order to assert that claim proceeding. ain See Id. at 945. Al though government in Johnson asserted a asserts that commit- specific procedural which no by "ignor[ing] rule him ted a default the district court's review, sup to raise on direct Johnson does not to file instruction a motion to recall the mandate Taño, port However, a conclusion that in Davis this Court.” received no default, committed a merely for two reasons. such instruction. The district court held First, important, English's and most abeyance Johnson was decided motion in until his 1993, years alleged in four the any default in was final. It did not direct him to file after impose require any this case. If did in govern- it fact the motion in court. We note that the brought ment that any all claims be on direct ment does nоt make similar contention with waived, Tano, requirement or ‍‌​‌​​​‌​​​​‌‌‌‌‌​‌​​‌‌​‌​‌​​​‌​‌‌‌​‌‌‌​‌​‌​‌‌​​‌‍respect although be this certainly could not be to it could have applied retroactively accuracy. to any forfeit done so with more factual Second, event, holding given Davis's claims. present our in Johnson all of the circumstances here, did not rest seriously default at all. In we doubt that we would conclude stead, we denied Johnson's claim because it con that the district court's in order Tano's case statement,” "merely conclusoty type stituted a which the constituted of rule contem- 482 the Supreme Court has mooted difficulty in cause the determin

We have little by resting aspect of the claim are constitu constitutional ing petitioners’ claims that France, ground in favors explained tionally based. As we on a nonconstitutional a inap- be treated as that it decision in Gomez should him. also believe would be We of purposes for the wholly advisory opinion constitutional decision propriate to render a involving the assertion procedural doctrines Supreme when the on the constitutional issue claims: “The constitutional principled reasons has for sound Court was, end, Court, although in the France, its decision Rather, in question. as avoided the statutory construction, made clear one of retroactivity rules that the which we held by holding compelled the notion that its was apply claims governing constitutional any might run afoul that other result well petitioner that a holding, we conclude Gomez by authorizing depriva the Constitution raising claim is entitled to the bene- a Gomez rights’ criminal the ‘basic of a tion of one of govern procedural doctrines which fit of the France, (citing 886 F.2d at 226 defendant.” of constitutional claims the assertion 863, 871-76, Gomez, at 109 S.Ct. 490 U.S. proceedings. 2255 2246-48). 2241, Supreme Court’s Even the Moreover, if there is no constitu even Peretz, subsequent opinion which held right judge III tional to have Articlе magistrate’s to a con a defendant’s consent dire, conduct voir a rather than any problem, duct of voir dire cures Gomez right all criti has a basic “to have defendant underpin constitutional made clear Gomez’s by stages trial conducted cal of a criminal explaining why the nings. In a footnote Gomez, jurisdiction preside.” person with ques found the constitutional Gomez Court 877, one, at 2248. This 490 U.S. at S.Ct. a substantial the Court tion extensively Commodity right, process, is itself constitu quoted from rooted due Peretz Schor, status, Trading Comm’n v. 478 U.S. Court made Futures tional as 848, 106 3245, 3255, 833, by 92 L.Ed.2d 675 fair trial analogizing S.Ct. clear it to such “basic “emphasized impor impar which had rights” ‘right to an as “a defendant’s ” personal right to an Article III tance of the adjudicator, judge jury.’ tial be it or Id. Peretz, adjudicator.” n. 501 U.S. at 930 Gray Mississippi, (quoting at 2665 n. 6.13 107 S.Ct. (1987)).14 join our fellow circuits which We course, suggest do not mean to Of we reading adopted have this of Gomez and held necessarily would have Court stages right that the to have all оf a criminal issue in decided constitutional Gomez’s by person jurisdiction with trial conducted it to construe the favor had been unable preside right. constitutional See is a However, question. to avoid the statute Chantal, 1018, 1021 United States raises a sub- believe when (1st Inc., Cir.1990); (as of Hipp, n. 4 Matter petition- stantial constitutional claim 1503, 1521 Cir.1990); done), see also Unit surely not F.2d ers here have he should Baron, F.Supp. right simply be- ed States v. 261-62 lose his collateral review judicial power by Georgia, plated cation of matters within Ford (1991). guarantee the United States intimated this protect primarily personal, rather serves to structural, interests. than quoted following passage 13. The Court Peretz Peretz, 501 U.S. at 930 n. 111 S.Ct. at 2665-66 from Schor: Schor, (quoting 478 U.S. at S.Ct. at n. 6 III, protect § 1 serves both to "the Article 3255) omitted). (citations independent judiciary role of the within the tripartite govern- scheme of course, constitutional impartial adjudica- right 14. Of to an ment," safeguard litigants' "right and to Gray right. tor is a constitutionаl judges have claims decided before who are free referring by “the made this clear constitution- potential from domination other branches right impartial jury” by citing Turney al to an government.” Although pro- Ohio, our have cases 71 L.Ed. 749 right vided us with little occasion to discuss the (holding that there is constitutional significance safeguard, impartial judge), page or of this latter nature to an both on the same III, guar- Gray, § prior cited. See our discussions of Article l's which the Court Gomez independent impartial adjudi- U.S. at 107 S.Ct. at 2056-57. antee of an (D.Hawaii 1989) (holding that a violation of § the Gomez claims 2255 proceedings right this review,16 “undermin[es] the fundamental rather than on direct the record is trial”).15 felony very of a At any fairness the devoid of petitioners evidence that the least, petitioners asserting the here are any input themselves had into this decision. right constitutional to have voir dire conduct- A decision of this pur- character —whether to by jurisdiction. ed with officer particular sue a in the Court certiorari, on a for in this court on a English, We also cannot conclude that mandate, motion to recall the or in a district deliberately bypassed and Davis § court on a 2255 motion —is one that In bypass, review. order to find a deliberate typically by lawyer, made not the client. we petitioners must find that them Nothing in suggests the record typi- that the merely selves—and not their counsel—made practice cal was not followed this case. knowing, intelligent, voluntary decision petitioners consulted, Even if the were we forego presenting the claims on direct quite surprised would be they any had explained review. As the understanding of the relevant differences be- when it set forth bypass the deliberate stan pursuing tween the claim Noia, on direct Fay dard in filing 2255 motion. The choice of (1963), may we hold that a forum in appears this case to have resulted deliberately bypassed defendant direct re purely legal frоm considerations. The attor- only bypass view if the satisfies “[t]he classic neys English for and Tano they contend that definition of waiver enunciated Johnson v. pursue failed to the claim in Zerbst, [304 U.S. they certiorari because believed that Su- ] L.Ed. 1461 intentional —‘an preme prevented Court rules them from rais-

relinquishment or abandonment of a known ing the time, issue that court for the first right privilege.’” or Id. 83 S.Ct. at they and that failed to move this court to only bypass 849. We will find a deliberate recall they mandate because believed applicant, where “a habeas after consultation jurisdictional the claim awas one that competent otherwise, with counsel or under could be addressed 2255 motion in the standably knowingly privi forewent the first Although petitioners’ instance.17 at- lege” pursuing his claims on direct review. (a torneys may have erred in this assessment standard, Id. applying When this “[a] choice view), express conclusion on which we no by participated by madе counsel not government stronger must make a far show- automatically does not bar relief.” ing before peti- we would conclude that Rather, Id. will bypass find a deliberate tioners themselves had knowledge sufficient only pursue if the appellate failure to reme understanding satisfy of these issues dies results from “the considered choice of the Johnson v. Zerbst waiver standard. petitioner.” Id. government Indeed, has not satisfied its petitioners bur- our conclusion that the showing den of bypass a deliberate knowing, intelligent, here. did not make a and vol- Although it petitioners’ untary is clear that the forego at- decision to would torneys pursue only made a conscious decision to strengthened if we were to decide suggested 15. At least one circuit has motion to recall the mandate in his direct Gomez right announced a constitutional to have Instead, all criti- appeal. rely movants elected to stages felony by person cal of а trial conducted "juris- their contention that error was jurisdiction preside with pro- over the entire dictional.” Vanwort, ceeding. See United F.Supp. United States v. (2d Cir.1989). go We need not so far (D.Hawaii 1991). represent- Because Davis was here, however. attorney ed the same as the second part finding appear apply of the would to his cases, judge In and Tano’s the district case as well. following finding: made the bypassed opportunity These movants above, seek explicitly relief on this issue on direct 17.As noted court district fact, they deliberately comply chose not to with found the latter reason motivated the choice they very this court’s order that do so. At the supra of forum in this case. See note 16. least, there was available to each movant from, to raise their choosing prejudice” al their failure attorneys in to their erred only they if have also court. De- constitutional

pursue the claim the district particu- specific providing rule under- violated a ought expected not to be fendants during if not raised procedural rules lar claim will be barred complex web of stand the proceedings. on place in criminal Based regulates the time and the direct that now majority interpretation Frady, party raise a meritorious this Taño, attorneys They rely English, on to advise and Davis were not must their concludes accurately regarding prejudice the risks and con- to col- required to show cause and them claim in choosing pursue sequences laterally challenge their convictions on the States, an rather than another. Where one forum basis of Gomez United erroneously (1989), attorney advises a defendant 858, 109 S.Ct. required to raise a claim on that he is not issue on despite their failure to raise this say that the defen- direct we cannot appeal in their direct criminal or otherwise deliberately bypassed direct review. dant prоceedings, pro- there was no rule because they viding such claims were forfeited unless Taño, conclude that We during proceedings. the direct were raised deliberately bypass oppor Davis did not on direct tunities to raise their Gomez claims already interpreted Frady circuit has Our that there was no review. We also conclude requiring federal defendants who fail to as required them specific rule which appeal in of an issue on seek review the claim in for certiorari to assert prejudice proceedings to show cause and the mandate. Accord or motions recall pursue in order to collateral ingly, they procedurally default on did not relief, regard they without to whether also Thus, prejudice claims. the cause and their express provision. violated an waiver analysis inapplicable here. The district Dunham, 767 F.2d United States v. court was to reach the merits of (9th Cir.1985), 1397 & n. we held reliance Had it and Davis’s claims. that a collateral attack based on so, obliged to rule in done it would have been alleged transcript omission from the trial petitioners’ favor. faulty jury instruction was barred prejudice solely standard because Conclusion challenges to raise the defendant failed these judgment court in En majority The of the district points on ‍‌​‌​​​‌​​​​‌‌‌‌‌​‌​​‌‌​‌​‌​​​‌​‌‌‌​‌‌‌​‌​‌​‌‌​​‌‍direct States, 91-16442, 10(e) glish v. United No. Appellate Federal Rule of Procedure Tano v. No. is RE United Procedure and Federal Rule of Criminal judgment VERSED. The of the district special procedural requiring as rules Davis, No. 92- court United States claims be raised in the course of the these 15368, is AFFIRMED. Majority Op. proceedings. criminal at 480- 81 & n. 9. Neither rule is mentioned in the BROWNING, Judge, R. Circuit JAMES opinion. nothing sug- Dunham There is concurring: gest upon concluding court relied them in Frady failure to raise an that under issue separately I write because I believe the itself a default sufficient to was majority’s reasoning Ninth conflicts with Cir- trigger requirement prej- сause precedent. judgment cuit I concur in the to obtain collateral udice be shown review. analysis because a different consistent with precedent our leads to the same result. majority’s Even distinction of Dun- accepted, ham is our decision

I. Johnson, Cir.1993), majority interprets position commits this court to the United States requires 71 that failure to itself justify holding showing as federal defen- cause attack convictions collateral attack. Johnson relied on dants who seek to for, collaterally requiring showing and “actu- of cause and must show “cause” concedes, though, majority even as the authority there Court is nevertheless binding on requiring three-judge was no statute or rule panel). defendant to raise the direct The Dep’t comment Clow v. U.S. sought collaterally

the issue he to raise —the Dev., Housing & Urban 948 F.2d 614 sufficiency supporting of the evidence his Cir.1991) (per curiam), especially perti- is triggered conviction. The default that nent: requirement that cause and be [majority] The argue does not that an in- clearly shown in Johnson was no more than tervening Supreme Court decision has east failure to raise the issue on direct prior law, doubt on our circuit rather it majority seeks to avoid this conclusion very Supreme asserts that the Court deci- by characterizing interpretation Johnson’s upon sion which rely these cases does not that, arguing as dicta and if not disre support holdings. If all were free garded ground, on this it established a “new disregard prior our circuit law based on applied rule” that should not retroactively. be predilections our own as to whether these argument First, persuasive. Neither properly decisions construe the Johnson denied defendant’s 28 U.S.C. 2255 upon they rely, Court cases which the doc- pleadings motion both because his were con- trine of stare decisis would have little elusory and because he failed to show cause meaning in our circuit. prejudice. See 988 F.2d at 945. Alter Id. at 616 n. 2. holdings nativе are not dicta. See Woods v. Co., Realty Interstate 337 U.S. II. (1949) 93 L.Ed. 1524 (“where a decision rests on two or more agree I majority with the that these eases grounds, relegated none can catego remedy. call for a If the merits can be dictum”); ry of obiter Kimble v. D.J. reached, required. reversal is The obstacles McDuf Inc., fy, 1113 n. doing formal, so are technical and (1981) (White, 689 n. 70 L.Ed.2d 651 protect They little of substance. should be J., certiorari) (alter dissenting from denial of possible. surmounted if holdings native mitigate precedential do not Frady’s holding that failure to raise consti- decision). appellate effect of a federal Sec during appellate tutional issues review in the ond, retroactivity present issue of is not proceeding challenge bars collateral ed: Dunham and Johnson did not establish princi- absent cause and was based simply new rule. Both interpreted and pally government’s on the interests in the Frady, followed the rule announced in finality judgmеnts of criminal avoiding and in applies here as well. lengthy delays often associated with collater- majority develops a argu- substantial al inapplica- review. This central rationale is ment that is more limited than majority ble to this opinion case. As the panels states, that decided Dunham and Johnson all appellants petitions three filed three-judge found it to be. A panel raising does not Gomez claims before their convictions sit in review of prior decisions of three-judge became final. and Davis raised the panels. We would be bound to follow the Gomez claim motions under 2255 filed interpretation in Dunham and Johnson of the district court before the the rule established even if we denied certiorari appeals. their direct thought panel those wrong. decisions were raising Tano filed his motion the Gomez issue See, Mandel, e.g., United States v. after expira- certiorari was but denied before (9th Cir.1990) (circuit precedent tion petition of the time to file a for rehear- allegedly prior Supreme ing conflicts with of the denial.1 Kentucky, 1. See elapsed 321 n. for certiorari or a for certiorari Griffith 712 n. denied.”); finally Sup.Ct.R. (providing 44.2 'final,’ ("By judgment we mean a case in which a days rehearing for of a denial of rendered, availability conviction has been certiorari). exhausted, and the time for a Gomez, the defendants France and Under preferable have been It would trials unless to new in this case are entitled their Gomez raised and Davis had raising be drawn between to recall should in this court distinction in motions claims supplemental brief However, failure claim in a the defendants’ a Gomez mandates. re to a motion equivalent course does not preferable raising it in a form follow the col motions as such a distinc- mandate. Because quire that we consider recall our un Although filing a motion over substance attacks. exalt form lateral tion would criminal of our decision unjustly deny 2255 while direct the benefit der discouraged, defendants, forum I pending another concur are France jurisdictional. United not limitation is directing judgments (9th Cir. Taylor, 648 F.2d v. States anew. Davis be tried cases).2 Furthermore, 1981) federal (citing papers by form that so bound are not courts considered as never be in one forum can

filed noted, As we have though in another.3 filed raising motions the Go filed their

appellants proceed the direct criminal issue before

mez concluded, are those motions

ings were district from the before us on

now through district But the detour court. America, UNITED STATES virtu court, in this court is paper record Plaintiff-Appellee, had filed their ally the same as defendants to recall our as motions in this court motions

mandates. Benally, BEGAY, Paul Nez Donald John France, Roy Lee, F.2d 223 Kinlicheenie, Mac In United States Peter Earl (9th Cir.1989), equally McKensley, an divided Sr., Donald, Alfred Ned M. aff'd Court, Evangeline Scott, Sr., Sorrell, Be Anna permitted Yazzie, the defen Wauneka, gay L.Ed.2d Ike Defen Kee supplemen in a dant to raise Gomez dants-Appellants. though the even

tal brief on to 93-10175. Nos. 93-10167 in the defеn not raised below or claim was Id. at 225. opening brief on dant’s Appeals, States Court ground excused these defaults We Circuit. Ninth futile for the defen it have that would been Oct. 1994. Argued and Submitted ‍‌​‌​​​‌​​​​‌‌‌‌‌​‌​​‌‌​‌​‌​​​‌​‌‌‌​‌‌‌​‌​‌​‌‌​​‌‍prior to the Gomez to raise the issue dant repeatedly circuit had decision because this 7, 1994. Decided Nov. tried rejected argument that defendants supervision juries under the before selected judge are enti an unauthorized 227-28. re trials. Id. at We

tled to new ground on the conviction

versed France’s yet not final applies to all cases

that Gomez decision. time oí the Court’s

at the at 227.

Id. Hambrick, context, 262- Cf., e.g., 3. Miller analogous federal defendants 1990) prison (transferring court before com- a federal new trials district Cir. seek appeals. pletion See United of their a district court er's 28 U.S.C. Cronic, 4(a)(1) 667 n. (provid Fed.R.App.P. jurisdiction); with (1984) ("[t]he 2051 n. appeal mistakenly ing filed in that a notice of jurisdiction entertain [a ha[s] District Court though appeals be treated as should court deny the motion on motion and either 33] Rule court). correctly filed in the district merits, grant certify its intention to its or Appeals, which could then to the Court motion of to remand the case”). entertain a motion

Case Details

Case Name: Patrick English v. United States of America, Derek Tano v. United States of America, Lutrell Davis v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 21, 1994

Citation: 42 F.3d 473

Docket Number: 91-16442, 91-16500 and 92-15368

Court Abbreviation: 9th Cir.