Dewey E. Coleman v. Henry Risley, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana

839 F.2d 434, 1988 U.S. App. LEXIS 579, 1988 WL 1962

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 1988
• Docket: 85-4242
• Status: Published

Opinions

DAVID R. THOMPSON, Circuit Judge:

Dewey E. Coleman, a Montana state prisoner who has been sentenced to death, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

I. FACTS

On July 4, 1974, Peggy Lee Harstad, twenty-one years old, disappeared while driving alone from Harlowton to Rosebud, Montana. The next day her car was found within a few miles of her home, near Rosebud. Several days later, a ranch hand discovered her purse inside a culvert about ten miles from her abandoned car. In the investigation which followed, an elderly couple reported that on the evening Har-stad disappeared they had seen a black man and a white man hitchhiking between Roundup and Forsyth, Montana at about the time Harstad had been driving between those towns. The two men were identified as Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man.

On July 9, 1974, representatives of the Rosebud County sheriffs office questioned Nank. He admitted being in the area where Harstad had last been seen alive, and hitchhiking through Forsyth, Montana on the evening of July 4th. In an interview with FBI agents about one month later, Nank also admitted seeing the Harstad vehicle abandoned on the road and finding a purse along the road where he and Coleman had been hitchhiking. By this time the FBI had reported a positive comparison between Coleman’s fingerprint and a fingerprint which had been lifted from a paper found in Harstad’s purse. Vacuumings taken from the Harstad vehicle revealed Negroid head hairs and two Negroid pubic hairs.

On August 29th, almost two months after her disappearance, Harstad’s body was found on the north bank of the Yellowstone River, just west of Forsyth, Montana. Because of decomposition of her remains, a cause of death could not be determined.

Nank and Coleman were arrested in Boise, Idaho in October, 1974 and charged with deliberate homicide in the death of Peggy Lee Harstad. During questioning Nank gave a full confession implicating himself and Coleman in the kidnap, rape and murder of Harstad. Coleman denied any involvement in the crimes. The apartment where Nank and Coleman lived was searched, as was their car. Two motorcycle helmets and a rope Nank said had been used in the crimes were recovered. Coleman and Nank were charged with deliberate homicide, aggravated kidnapping, and sexual intercourse without consent. A conviction of aggravated kidnapping carried with it a mandatory death sentence. Mont. Code Ann. § 94-5-304 (1947) (repealed 1977).

On May 7, 1975, Nank entered into a written plea agreement with the State. He agreed to plead guilty to deliberate homicide and solicitation to commit sexual intercourse and to testify against Coleman in return for dismissal of the aggravated kidnapping charge; the dismissal of the aggravated kidnapping charge was not to occur until after Nank had testified at Coleman’s trial. Coleman’s counsel entered into plea bargaining discussions. Coleman insisted on maintaining his innocence, however, and was unable to make a plea agreement with the State.

On July 2, 1975, a pretrial hearing was held on a motion brought by Coleman’s counsel seeking to obtain a court order authorizing the copying of Nank’s medical records. Coleman was not present at the hearing. His counsel explained that Coleman had been taken to Billings, Montana for a sodium amytal examination to see if he could remember the events of July 4, 1974. During the course of the hearing, Coleman’s counsel stated he wanted to enter into further plea negotiations with the State. The following colloquy occurred:

Defense Counsel: I want to enter into further plea bargaining with the State and with the Court.... Also what I have to say today, I have not confirmed with my client, but I believe because of the shortness of time between now and the time of trial, it should be raised_ My client — well, also I want to proceed on the basis that this is plea bargaining and things I should say should not be held against my client at some later time. Is that understood?

State’s Attorney: I don’t go for that at all. I think we’re either presenting an argument here. If we’re going to hold a plea bargaining conference, let’s do that later....

The Court: I think that what he’s doing is laying a foundation to bring something up. Now go ahead.

Defense Counsel: That’s correct. I’ll go forward. I don’t believe that my statements can be used against my client in any event. The purpose of the psychiatric examination was to place my client under sodium amytal to see if his recollection and memory could be refreshed, because in all communications with me, he could not tell me what happened. He continually asserted his innocence and it presented quite a problem in trying to defend him. That was the purpose, to send him to Dr. Harr to have him placed under sodium amytal. That investigation has been conducted and I believe on the basis of that examination, that my client will want to enter a plea of guilty.

The Court: Without the condition of—

Defense Counsel: Without the assertion of innocence. Now these statements I make are based on conversations I had with my client prior to the time he went up for the examination. That if the examination revealed certain things that refreshed his memory and indicated that the story that Nank was telling was in fact true, or substantially true, that then my position would be that we should go back to the Court and offer to enter a plea with the understanding that the death penalty not be imposed, and then if the memory is refreshed and his recollection of events is sustained after the sodium amytal has worn off, that then he would testify fully as to what his extent of participation was in the crime, and to avoid what I thought was the prosecution’s most severe objection, and that is that he was entering a plea and saying he was innocent, and that this would allow him to get out. Now I know that the State indicated before that they thought he should be hung. I don’t know what the State’s position is. Now Mr. Coleman will be returning to Miles City, according to Dr. Harr, sometime around eleven o’clock. I intended to immediately confer with him. Doctor Harr has called me already this morning, and from the information I have received, it appears that my client’s memory has been refreshed and there was participation on his part in the crime. Therefore, my function I believe, is to try to accomplish and make arrangements with the State and with the Court to save my man’s life, and also it presents a personal problem and personal dilemma to me that would mean if we have to continue with the trial with my feelings of what Dr. Harr told me, and that if that’s true, it will be very difficult to continue in the defense and to argue the case. Now that’s a personal dilemma that I have.

The Court: That may be a personal dilemma, but it’s an obligation that you’ll have to go through with. So your client now makes the same proposition to the State as Nank has?

Defense Counsel: Yes, he would.

No agreement or understanding was reached at the July 2nd hearing. When court was convened the next day, Coleman was present. His counsel referred to the sodium amytal examination and stated that Coleman would plead guilty “under the same terms and conditions as has been accepted by the State with regard to Mr. Nank.” The State refused to accept from Coleman the same plea bargain which had been made with Nank. The prosecutor stated he was concerned about Coleman challenging the voluntariness of his plea at a later time. He stated there were circumstances in Coleman’s case which made it significantly different from Nank’s. He stated these included the fact that claims had been made in Coleman’s case that his attorney was incompetent and that a change of venue to avoid prejudice had not been a sufficient change to avoid such prejudice. He also pointed to Coleman’s previous assertion of an insanity defense (which Coleman had later waived), and to the possibly unreliable sodium amytal procedure which had prompted Coleman to offer a guilty plea.

When Coleman’s proposed plea bargain was rejected by the state, his counsel requested to be relieved. He stated that although he could defend Coleman on the aggravated kidnapping charge, there was “no way in the world I can state to the jury that he is innocent of deliberate homicide and that he’s innocent of sexual intercourse without consent.” The trial court denied the motion, but the Montana supreme court subsequently relieved Coleman’s counsel and appointed new counsel to represent him. Coleman’s new counsel took over his representation unaware of the proceedings which had taken place on July 2 and 3.¹

Trial began in October 1975. Coleman and Nank both testified. They had met one another at the Veterans Hospital in Sheridan, Wyoming. Coleman was being treated for depression. Nank had a history of mental illness. They were discharged from the Veterans Hospital and traveled to Montana on Nank’s motorcycle. They ran out of gas between Roundup and Forsyth during the evening hours of July 4, 1974 and decided to hitchhike. From this point on their stories differed.

Coleman testified that he and Nank had been unsuccessful in their attempt to hitchhike, but that Nank was able to obtain a ride for himself and headed toward For-syth. Nank returned several hours later driving a car subsequently identified as Harstad’s. He told Coleman he had killed a woman, and asked Coleman to hide a woman’s purse which he had brought back; Coleman complied. Coleman denied any involvement in the death and maintained he did not report Nank to the authorities because he was afraid of retribution from Nank and was afraid he would be implicated in the crime.

Nank testified that when the Harstad vehicle stopped, both he and Coleman got into the car. As they proceeded toward Forsyth, Nank turned the ignition key off and maneuvered the vehicle to the side of the road. He tied Harstad’s hands together with a yellow nylon rope, removed her clothing except for her blouse and attempted to have sexual intercourse with her but could not maintain an erection. Coleman then got in the back seat with Harstad and had sexual intercourse with her. Nank testified that thereafter he dressed the victim and they drove to the Yellowstone River. Nank carried Harstad over his shoulder to the side of the river. He put her down, and as they were talking, Coleman came from behind and hit Harstad several times on the head with his motorcycle helmet.² Coleman then took the rope from Harstad’s hands and attempted to strangle her. Nank said Coleman asked him to help, but he was unable to do so. Both men then carried Harstad, who was unconscious, to a drainage area near the river where they dumped her body. When Har-stad attempted to get up, Coleman held her feet and Nank held her head under the water until she was drowned.

II. PRIOR COURT PROCEEDINGS

A jury convicted Coleman of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, inflicting bodily injury. He was sentenced to one hundred years for deliberate homicide and forty years on the rape charge. He was sentenced to death for aggravated kidnapping under Montana’s mandatory death penalty statute.³ On appeal, the Montana supreme court held that the mandatory death penalty statute was unconstitutional. State v. Coleman, 177 Mont. 1, 579 P.2d 732, 741-42 (1978) (Coleman I). Coleman’s death sentence was vacated and his case was remanded to the trial court for resentencing.⁴ Coleman was then resen-tenced to death in 1978 under a new Montana death penalty statute which had been enacted in 1977. Mont.Code Ann. §§ 95-2206.6 through 95-2206.15 (now codified at Mont.Code Ann. §§ 46-18-301 through 46-18-310; hereinafter cited in precodification version, and reproduced at Appendix). Coleman’s sentence was automatically reviewed by the Montana supreme court. Mont.Code Ann. §§ 95-2206.12 through 95-2206.15. The court upheld his convictions and sentences. State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979) (Coleman II), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980); Coleman v. Sentencing Review Division of Supreme Court of Montana, 449 U.S. 893, 101 S.Ct. 255, 66 L.Ed.2d 121 (1980) (vacating stay of execution of death sentence and denying certiorari).

Thereafter, Coleman filed a petition with the State court for post-conviction relief. His judgment and sentence were once again reviewed and affirmed by the Montana supreme court. Coleman v. State, 633 P.2d 624 (Mont.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (Coleman III).

A petition for writ of habeas corpus under 28 U.S.C. § 2254 was filed in the United States district court for the district of Montana in November 1981. The State provided Coleman with a list of all transcripts and proceedings that were recorded but not transcribed in the State court. It was at this time that Coleman’s new counsel first learned of the July 2 and July 3, 1975 hearings during which the result of Coleman’s sodium amytal test and plea proposals had been disclosed and his then counsel had requested to be relieved as his attorney. The federal habeas corpus proceeding was stayed to provide Coleman the opportunity to exhaust his State remedies for review of his convictions and death sentence in view of these hearings. The Montana supreme court denied Coleman’s petition for post-conviction relief. Coleman v. Risley, 203 Mont. 237, 663 P.2d 1154 (1983) (Coleman IV).

Coleman then filed a motion for an evi-dentiary hearing on his habeas corpus petition in the district court. He sought a hearing on twelve of the thirty-seven issues raised in his petition, and filed a motion for summary judgment on the remaining issues. The State also filed a motion for summary judgment. On August 9, 1985, the district court granted the State’s motion and entered judgment against Coleman. He appeals.

Coleman contends: (a) his resentencing under the 1977 death penalty statute violated the ex post facto clause of the Constitution; (b) Montana’s death penalty statute unconstitutionally required him to bear the burden of proof of mitigating factors; (c) his jury panel was selected in an impermis-sibly discretionary manner; (d) his trial, conviction, and death sentence were the result of racial discrimination; and (e) his sentence was imposed in violation of due process of law.

III. EX POST FACTO LAW

Coleman was convicted and first sentenced to death in 1975 under a mandatory death penalty statute subsequently held to be unconstitutional in 1978 by the Montana supreme court in Coleman I, 177 Mont. 1, 579 P.2d at 741-42. In 1977, the Montana legislature passed a new death penalty statute, the constitutionality of which was upheld in State v. McKenzie, 177 Mont. 280, 581 P.2d 1205, 1228-29 (Mont.1978), vacated on other grounds, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979). Coleman was resentenced in 1978 under this new statute. He contends the ex post facto clause of the Constitution was violated when he was resentenced to death under the 1977 statute.

To violate the ex post facto clause of the Constitution, a law must be retrospective and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); United States v. Crozier, 777 F.2d 1376, 1383 (9th Cir.1985). Furthermore, “[e]ven if a retroactive change in the law is a disadvantage to the criminal defendant, it does not violate the [ex post facto ] clause if the change is procedural rather than substantive.” United States v. McCahill, 765 F.2d 849, 850 (citing Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)).

During Coleman’s trial, Nank testified on cross-examination that on the day Peggy Lee Harstad was murdered, he and Coleman burglarized a home in Roundup, Montana and stole some guns. The sentencing judge considered this circumstance at the time Coleman was resentenced to death under Montana’s amended 1977 death penalty statute. Coleman claims he would not have cross-examined Nank concerning the Roundup burglary had he known this testimony would eventually be used against him at a sentencing hearing. Under the old death penalty statute Nank’s testimony concerning the Roundup burglary would not have had any effect on whether Coleman was sentenced to death. His conviction of aggravated kidnapping mandated a death sentence. He argues that the new sentencing law changed the “rules of the game” to his detriment after his trial and before sentencing.

Coleman is correct that Montana’s new sentencing law was enacted after his trial. But the new law did not change the “rules of the game.” Nank’s testimony regarding the Roundup burglary was admitted at Coleman’s trial and was fully admissible at the sentencing hearing under Montana’s new sentencing regime. Section 95-2206.7 of the Montana Code authorizes the sentencing judge to receive “evidence ... as to any matter the court considers relevant to the sentence, ... and any other facts in aggravation or mitigation of the penalty.” Mont.Code Ann. § 95-2206.7. In evaluating mitigating circumstances, the judge considers, among other things, the defendant’s “prior criminal activity.” Id. § 95-2206.9(1). Coleman’s argument that the new law disadvantaged him rests upon the unsubstantiated assumption that the circumstance of the Roundup burglary would not have been brought to the attention of the court at the sentencing hearing, but for Coleman’s cross-examination of Nank at trial. Coleman has provided nothing to support this assumption. See Dob-bert, 432 U.S. at 294, 97 S.Ct. at 2298-99 (discussed infra; rejecting petitioner’s “speculation” that jury would have recommended life imprisonment had prior law still been in effect).

Coleman’s counsel suggested at oral argument that Coleman’s trial counsel would have cross-examined Nank differently and scrutinized his testimony about the Roundup burglary more effectively had the new sentencing law been in effect. Given that Nank and Coleman testified as to conflicting accounts of the events the day the murder occurred, the suggestion that Coleman’s attorney had no motive to scrutinize Nank’s recollection of the burglary which Nank said occurred on the day of the murder is unconvincing. Further, Coleman has not shown he was denied the opportunity to reexamine Nank at the sentencing hearing. See our discussion infra section VII, 3b. However, even if we were to accept Coleman’s assumption, the Supreme Court’s holding in Dobbert dictates rejection of his ex post facto claim.

In Dobbert, Dobbert committed crimes when Florida had an unconstitutional death penalty statute which punished a defendant with death unless the jury recommended mercy. 432 U.S. at 288, 97 S.Ct. at 2296. By the time Dobbert was brought to trial, Florida had enacted a constitutional statute; the new law removed the presumptive death sentence, but permitted the judge to override the jury’s recommendation of leniency. Id. at 290-91, 97 S.Ct. at 2297. At Dobbert’s trial, the jury by a ten-to-two majority found sufficient mitigating circumstances to outweigh any aggravating circumstances and returned an advisory verdict recommending life imprisonment. Id. at 287, 97 S.Ct. at 2295. The trial judge, however, overturned this recommendation and sentenced Dobbert to death. Dobbert argued that the new law violated the ex post facto clause because (among other things) under the former death statute the jury’s recommendation of life would not have been subject to the trial judge’s nullification. The Court rejected this argument on two independent grounds, both present here: the new Florida law was procedural, and it was ameliorative. Id. at 292 & n. 6, 97 S.Ct. at 2298 & n. 6.

A. Procedural Change

The Court in Dobbert began its analysis by reiterating the “well settled” principle that the ex post facto clause does not “ ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Id. at 293, 97 S.Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)). As a corollary to this principle, the Court noted “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id. The Court discussed two cases to support this proposition. Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). In Thompson, the Missouri supreme court reversed the defendant’s conviction because of the inadmissibility of certain evidence in a case tried on circumstantial evidence. Prior to his retrial, the law was changed to make the evidence admissible and the defendant was again convicted. The Thompson

Court held that the change which rendered the incriminating evidence admissible was procedural and did not violate the ex post facto clause because it “did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty.” 171 U.S. at 387, 18 S.Ct. at 924. Similarly in Hopt, the Court held that a statute removing disqualification of certain classes of people who could be witnesses was procedural and hence did not violate the ex post facto clause. 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262. See also Beazell, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (passim; new law on joint trial procedural). The Court in Dobbert concluded on the basis of the foregoing authorities that the change in Florida’s sentencing law was procedural and therefore was not ex post facto. 432 U.S. at 293-94, 97 S.Ct. at 2298.

In the present case, as in Dobbert, Thompson and Hopt, Montana’s new sentencing statute is procedural. The statute “simply altered the methods employed in determining whether the death penalty was to be imposed_”, Dobbert, 432 U.S. at 293-94, 97 S.Ct. at 2298, and did not change the punishment prescribed, or the quantity or degree of proof necessary to establish guilt. Id. (citing Hopt, 110 U.S. at 589-90, 4 S.Ct. at 210). See also McCahill, 765 F.2d at 850-51 (law affecting bail pending appeal procedural); Knapp v. Cardwell, 667 F.2d 1253, 1262-63 (9th Cir.) (Arizona death penalty law enlarging ability to introduce mitigating factors held procedural), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); Ward v. California, 269 F.2d 906 (9th Cir.1959) (passim) (state law allowing introduction of evidence of defendant’s background and history and of any facts in aggravation or mitigation of death penalty was procedural; one judge denial of certificate of probable cause, per Pope, J.). Even if Montana’s new statute disadvantaged Coleman, therefore, it is procedural and not ex post facto.

B. Ameliorative Change

The Court in Dobbert further held that Florida’s new death penalty statute, viewed in to to, was ameliorative. The former statute established a presumption in favor of the death penalty and was unconstitutional. 432 U.S. at 294-97, 97 S.Ct. at 2298-2300. The new Florida law, in contrast, established extensive procedural protections and had been upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Here, Coleman was first sentenced under a mandatory death penalty statute which was unconstitutional. Thereafter, he was sentenced under a new statute which established extensive procedural safeguards (Mont.Code Ann. §§ 95-2206.6 through 95-2206.15) and is constitutional. Coleman II, 185 Mont. 299, 605 P.2d 1016-17 (and discussion infra section IV).

Coleman attempts to distinguish Dobbert by arguing that whereas Dobbert was tried, convicted and sentenced under a constitutional statute, he was tried and convicted under an unconstitutional mandatory death penalty statute, but sentenced under a constitutional statute. Relying on Dob-bert, we rejected an identical ex post facto challenge to the Arizona death penalty statute in Knapp, 667 F.2d at 1262-63. In Knapp, several of the appellants were tried, convicted and sentenced under an Arizona death penalty statute later declared unconstitutional. Thereafter, their sentences were vacated and they were re-sentenced to death under a constitutional statute. Id. at 1257-58. We rejected appellants’ attempt to distinguish Dobbert as a “distinction without ex post facto implications,” id. at 1262, because the new statute was “both procedural and ameliorative.” Id. at 1263. The effect of the new Arizona statute, like the new Montana statute, was to “enlarge the ability of defendants to introduce mitigating circumstances at sentencing.” Id. Thus, “it ‘neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict.’ ” Id. (citation omitted).

C. The Review Process

Coleman also argues that the new statute violated the ex post facto clause because it changed the process by which a sentence of death was reviewed in Montana. Under Montana’s death penalty statute in force at the time Coleman committed the acts of which he was convicted, and at the time he was tried and first sentenced to death, he had a statutory right to have his sentence reviewed by a Sentence Review Division. Mont.Code Ann. §§ 95-2502, 2211 (amended 1977). This review was designed to determine the appropriateness of the sentence with respect to the individual offender and particular offense, McKenzie, 171 Mont. 278, 557 P.2d at 1029, and gave a convicted person the “right to have his sentence reviewed for equity, disparity, or consideration of justice.” State ex rel. Greely v. District Court, 180 Mont. 317, 590 P.2d 1104, 1110 (1979).

The new statute abolished review of death sentences by the Sentence Review Division and replaced it with automatic review by the Montana supreme court. Coleman II, 185 Mont. 299, 605 P.2d at 1006; Mont.Code Ann. §§ 95-2206.12 through 95-2206.15. Under the new law, the State supreme court reviews a death sentence to determine (1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the sentencing judge’s findings of the existence or nonexistence of aggravating and mitigating circumstances listed in the new statute; and (3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Id. § 95-2206.15. Coleman contends this is a substantive change because the Montana supreme court’s review is limited, whereas the review commission had wide discretion to reverse a death sentence “for equity, disparity, or consideration of justice.” This argument proceeds on the false premise that the Montana supreme court’s review is “limited.” It also overlooks the fact that while nebulous considerations of “equity” and “justice” could have operated to a defendant’s advantage in reversing a death sentence under the old law, those vague terms could just as easily have worked to his disadvantage in upholding a death sentence arbitrarily imposed. See Dobbert, 432 U.S. at 294, 97 S.Ct. at 2299 (finality of jury determination of life or death under old law could operate equally to defendant’s advantage or disadvantage; change in law to permit review by court not ex post facto).

Moreover, the Montana supreme court’s review is not “limited” to a restricted list of mitigating circumstances. The court reviews a death sentence to determine whether the evidence supports the sentencing judge’s findings of the existence or nonexistence of aggravating and mitigating circumstances specified in Mont.Code Ann. §§ 95-2206.8 and 92-2206.9. There is, in addition, a final all-encompassing subsection (8) that requires consideration of “[a]ny other fact ... in mitigation of the penalty.” Id. § 95-2206.9(8). While this final aspect of the court’s review is focused on facts which were presented to the sentencing judge, the Montana supreme court makes an additional independent review of the case to determine whether the sentence was imposed under influence of passion, prejudice, or other arbitrary factors, id. § 95-2206.15(1), and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Id. § 95-2206.15(3). These review procedures, coupled with the review of mitigating factors, provide at least the same, if not greater, breadth of review as existed under the former statute, and provide a defendant with the added protection that his sentence review will not be limited to the potentially arbitrary application of a reviewing court’s notions of “equity” and “justice.”

We conclude, as did the district court and the Montana courts, that no ex post facto violation occurred by the application of Montana’s 1977 death penalty statutes to Coleman in imposing the death sentence upon him.

IV. BURDEN OF BRINGING FORTH EVIDENCE IN MITIGATION

In Fitzpatrick v. State, 638 P.2d 1002 (Mont.1981), the Montana supreme court held that Montana’s death penalty statute did not impose upon the State the burden of proving the nonexistence of mitigating circumstances, but rather, placed the burden on the defendant “to bring forth the evidence pertinent to the question of mitigation.” Id. at 1013. The court stated that “[t]his statute undoubtedly places the burden on the defendant to show that his life should be spared, but we find this to be constitutionally permissible.” Id. (discussing Coleman II, 185 Mont. 299, 605 P.2d 1000 (1979), and State v. Stewart, 175 Mont. 286, 573 P.2d 1138, 1146 (1977)).⁵ Coleman argues that "[b]y requiring the defendant to bear the burden of establishing the presence of mitigating circumstances, and by requiring the sentencing authority to weigh the ‘substantiality’ of the mitigating circumstances, the Montana statute prevents the kind of individualized attention to the appropriateness of the death sentence that the Constitution demands.”

To resolve Coleman’s contention, we must examine two lines of Supreme Court authority which have intersected only once before in this court. See Harris v. Pulley, 692 F.2d 1189, 1194-95 (9th Cir.1982) (involving state death penalty statute relieving state from burden of proving non-existence of mitigating factors beyond a reasonable doubt), reversed on other grounds, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). These are cases involving the facial adequacy of a state’s death penalty statute as measured by the eighth and fourteenth amendments, see, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and cases involving the allocation of the burden of proof in establishing guilt, see, e.g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

A. Facial Adequacy of Statute

In Gregg, a plurality of the Court stated that the constitutional concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) — that a court not act in an arbitrary or capricious manner — are best satisfied “by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” 428 U.S. at 195, 96 S.Ct. at 2935. The Montana death penalty statute provides for a bifurcated sentencing procedure conducted by the judge who presided at the trial or before whom the guilty plea was entered. Mont.Code Ann. § 95-2206.6. The defendant may present any probative evidence regarding aggravating or mitigating circumstances. Id. § 95-2206.7. The Montana statute also satisfies the general criteria established in Gregg, Proffitt, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), for constitutional state death penalty statutes: the statute requires the sentencing judge to find at least one aggravating circumstance, Mont.Code Ann. § 95-2206.10; the judge must consider mitigating circumstances and must find that no mitigating circumstance is sufficiently substantial to call for leniency, id. §§ 95-2206.7, 95-2206.9 and 95-2206.10; and the defendant receives prompt and extensive judicial review, id. § 95-2206.10 (and discussion supra). See, e.g., Spaziano v. Florida, 468 U.S. 447, 466, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984) (upholding similar statute). That the Montana statute does not require the State to prove the absence of mitigating circumstances, and permits the trial judge to weigh and balance mitigating and aggravating circumstances, does not violate the guidelines established in these cases. See Proffitt, 428 U.S. at 257-58, 96 S.Ct. at 2969 (upholding statute that did not impose a burden on state and permitted sentencing authority to balance factors in mitigation and aggravation); Jurek, 428 U.S. at 276, 96 S.Ct. at 2958 (allowing defendant to bring forth evidence on mitigation, but imposing no such burden on state); Harris, 692 F.2d at 1195 (interpreting Proffitt in similar fashion); accord McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 79 (1986) (same).

B. Allocation of Burden of Proof

The Supreme Court’s pronouncements on the proper allocation of the burden of proof in criminal cases do not alter this conclusion. In Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Court held that due process prevents conviction except upon proof beyond a reasonable doubt of every fact or element of the crime charged. Id. at 364, 90 S.Ct. at 1072. See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Winship and Mullaney emphasized society’s interest in the reliability of jury verdicts:

The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. ...

421 U.S. at 699-700, 95 S.Ct. at 1890 (quoting Winship, 397 U.S. at 363, 90 S.Ct. at 1072); see also Winship, 397 U.S. at 372, 90 S.Ct. at 1076- 77 (Harlin, J. concurring).

In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court refined the principles established in Winship and Mullaney. There, appellant was charged with second-degree murder which, under New York law, contained only two elements: intent to cause death; and causing death. Id. at 198, 97 S.Ct. at 2321. New York permitted the defendant to raise as an affirmative defense the mitigating circumstance of acting under extreme emotional disturbance, but the jury was instructed that the defendant bore the burden of proving the defense by a preponderance of evidence. Id. at 200, 97 S.Ct. at 2322. Appellant argued that placing the burden on a defendant to prove “mitigating factors” violated Winship and Mullaney. Specifically, he argued that Mullaney’s “holding ... is that the State may not permit the blameworthiness of an act or the severity of the punishment authorized ... to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact ... beyond a reasonable doubt.” Id. at 214, 97 S.Ct. at 2329. The Court held, however, that Mullaney and Winship only required the State to prove each element of the crime for which the defendant is charged:

Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the state deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

Id. at 215, 97 S.Ct. at 2329 (emphasis added).

Winship, Mullaney and Patterson teach that due process “requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” Patterson, 432 U.S. at 210, 97 S.Ct. at 2327. See also McMillan, 106 S.Ct. at 2416. Under Montana law, circumstances affecting mitigation are not facts or elements of the crime for which a defendant is charged; rather, they are facts weighed by the sentencing judge after the defendant has been convicted. MontCode Ann. § 95-2206.6. See, e.g., McMillan, 106 S.Ct. at 2417 (noting this fundamental distinction); id. at 2420 & n. 8 (discussing Proffitt); Patterson, 432 U.S. at 226-27, 97 S.Ct. at 2335 (Powell, J., dissenting); Foster v. Strickland, 707 F.2d 1339, 1345 (11th Cir.1983), cert. denied, 466 U.S. 983, 104 S.Ct. 3564, 82 L.Ed.2d 865 (1984); Ford v. Strickland, 696 F.2d 804, 817-18 (11th Cir.) (en banc) (per curiam) (due process not violated when sentencing authority is permitted to weigh aggravating and mitigating circumstances after state has proven aggravating circumstances), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Andrews v. Shulsen, 600 F.Supp. 408, 423 (D.Utah 1984); Richmond v. Cardwell, 450 F.Supp. 519, 524-25 (D.Ariz.1978), later proceeding, Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985). Accord Harris, 692 F.2d at 1195. Nor under Montana law is the existence of mitigating circumstances a fact which must be “proved or presumed” in obtaining a conviction or even in imposing sentencing. Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. Montana only requires the sentencing judge to find one aggravating circumstance, MontCode Ann. § 95-2206.10, and then to consider mitigating circumstances. The statute comports with the general standards enunciated in Gregg, Proffitt, Jurek, and Lockett and does not transgress the specific limitations established in Win-ship, Mullaney, and Patterson.

Finally, in Patterson and recently in McMillan, 106 S.Ct. 2411, the Court has recognized that due process may limit a state’s authority to define elements or facts necessary for a crime. Id. at 2416 (citing Patterson, 432 U.S. at 211 n. 12, 97 S.Ct. at 2327 n. 12). See generally McGautha v. California, 402 U.S. 183, 206 n. 16, 91 S.Ct. 1454, 1466-67 n. 16, 28 L.Ed.2d 711 (1971) (noting that aggravating circumstances could have been part of offense but instead were used as post-conviction enhancement). Several factors convince us that due process does not require Montana to disprove the existence of mitigating circumstances in order to impose a death sentence. First, as noted, the Court has approved of several death penalty statutes imposing no such burden on the state. See, e.g., Jurek, 428 U.S. at 276, 96 S.Ct. at 2958. Second, the Montana death penalty statute establishes no presumptions and does not relieve the State of its burden of proving the defendant’s underlying guilt. See McMillan, 106 S.Ct. at 2417. Third, mitigating circumstances as defined under Montana’s death penalty statute permit the sentencing authority to exercise leniency. See Patterson, 432 U.S. at 203 n. 9, 97 5.Ct. at 2323-24 n. 9 (“the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact”). They do not increase the punishment. Id. Compare McMillan, 106 S.Ct. 2411 (rejecting due process argument that state definition of element in aggravation in sentencing defendant must be proven beyond a reasonable doubt); id. at 2421-26 (Stevens, J., dissenting).

We therefore reject Coleman’s argument regarding the allocation of the burden under Montana’s death penalty statute and the trial court’s weighing and balancing of mitigating and aggravating circumstances.

V. JURY SELECTION

Following a challenge by the defendant three days before trial, the trial court dismissed the first jury panel and ordered a second panel drawn. Each name on the jury list was assigned a number, the numbers were placed in a box, and 200 were drawn. The court then directed the court clerk to obtain a panel of sixty jurors by telephoning persons drawn from the box to see if they would be available to serve on a jury within the next three days. Sixty-one of the prospective jurors indicated they would be available and sixty appeared for Coleman’s trial. Coleman I, 177 Mont. 1, 579 P.2d at 746-47. It was from this panel that Coleman’s trial jury was chosen.

Coleman contends that the sixty persons making up his jury panel were selected in an impermissibly discretionary manner. He alleges that potential jurors were asked whether they could appear for his trial and were allowed to excuse themselves on grounds not revealed to him. He further alleges that the system by which his panel of sixty potential jurors was selected had the disproportionate effect of placing mainly white, affluent residents from the west side of Billings on the panel. He argues that this system was controlled, not random, and resembled the so-called “key man” system of jury selection.⁶

Coleman contends that he is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, Coleman “must show that (1) he has alleged facts which, if proved, would entitle him to relief, and (2) an evidentiary hearing is required to establish the truth of his allegations.” Harris, 692 F.2d at 1197; see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).

A. Lack of Showing of Distinctive Group

Trial by a jury of one’s peers contemplates that an impartial jury will be drawn from a fair cross-section of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). The sixth amendment does not guarantee a randomly selected jury, United States v. Wellington, 754 (9th Cir.), cert. denied sub nom., Utz v. United States, 474 U.S. 1032, 106 S.Ct. 592, 593, 88 L.Ed.2d 573 (1985), nor does it require that the jury contain representatives from every group in the community. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986); Thiel, 328 U.S. at 220, 66 S.Ct. at 985. A fair cross-section challenge to the constitutionality of the jury venire requires a showing:

(1) That the group alleged to be excluded is a ‘distinctive’ group in the community;

(2) That the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) That this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (quoting Duren, 439 U.S. 357 at 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579).

Coleman contends that as a result of the jury selection process, persons from the lower socioeconomic areas of Billings were excluded from his panel of prospective jurors. He has not alleged any facts, however, from which it could be concluded that persons from the lower socioeconomic areas of Billings, Montana formed a distinctive group in the community, or that if such a group existed it consisted of a sufficient number of persons so that its systematic exclusion from jury panels would support a fair cross-section challenge under the sixth amendment. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see also Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). See United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977) (passim); United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Having failed to demonstrate the existence of a “distinctive” group, Coleman’s claims that such a group was underrepresented in jury venires or was systematically excluded in the jury selection process also fail.

B. Method of Selection of Available Jurors

Coleman challenges the clerk’s dismissal of 139 of the 200 potential jurors drawn from the box. There is nothing in the record, however, to suggest that the jurors who were excused by the clerk were excused for any reason other than their inability to serve in a jury trial which was to commence in three days. Coleman I, 177 Mont. 1, 579 P.2d at 746. Coleman does not contend, nor does the record reveal, that the 200 names from which the 60 members of his panel were chosen do not represent a fair cross-section of the community.

The method of jury selection in Coleman’s case was similar to that which occurred in United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). There, 200 to 300 jurors were selected for jury service. The defendant did not contend that these jurors were not representative of a fair cross-section of the community. The jurors were told that the trial would be lengthy and the court asked how many jurors would be able to serve. Sixty-eight jurors indicated they would be available, and sixty of these were selected for the panel. Id. at 321. On appeal the defendant contended the jurors were composed of volunteers and thus did not represent a cross-section of the community. Id. In rejecting this contention, the court concluded that the underlying complement of jurors represented a fair cross-section of the community and “[njeither the panel nor the trial jury became any less so by reason of the technique the judge employed.” Id. at 322. The court went on to state, “the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve longer; the panel from which the jury was drawn was distinguished only by that quality.” Id.; see also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982); United States v. Kennedy, 548 F.2d 608, 611 (5th Cir.), reh’g denied, 554 F.2d 476 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977).

Coleman did not present any affidavit or other evidence to suggest jurors were dismissed for any reason other than unavailability. His challenge to the sixty-person jury panel “consists exclusively of counsel’s statements, unsworn and unsupported by any proof or offer of proof.’-’ Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187 (1948). These “con-clusory allegations do not provide a sufficient basis to obtain a hearing in federal court.” Harris, 692 F.2d at 1199.

Finally, Coleman argues in his reply brief that the trial judge improperly disqualified two jurors because of their opposition to the death penalty. He has failed to present any showing that would justify an evidentiary hearing on this issue. MagGio v. Williams, 464 U.S. 46, 50, 104 S.Ct. 311, 314, 78 L.Ed.2d 43 (1983) (per curiam).

VI. RACIAL DISCRIMINATION

Coleman contends he was tried, convicted, and sentenced to death as a result of pervasive racial discrimination. He points to the fact that Nank, a white man, was permitted to plead guilty to crimes which did not carry the death penalty, whereas Coleman, a black, was denied the same bargain. He also points to the trial judge’s reference to him as a “black boy.” He contends he was entitled to a hearing on these contentions.

A. The Plea Bargain

The State permitted Nank to plead guilty to charges which did not carry the death penalty because he admitted his involvement in Harstad’s murder and assisted the State in its investigation and prosecution of Coleman. On the other hand, Coleman maintained his innocence. When he first offered to plead guilty to non-capital charges, he insisted on maintaining his innocence as a condition of such a plea. The State was under no duty to accept Coleman’s offer. The prosecution may refuse to bargain altogether, or cut off negotiations at any time. United States v. Herrera, 640 F.2d 958, 962 (9th Cir.1981) (prosecution of defendant on original indictment upheld notwithstanding prosecution’s acceptance of co-defendant's plea bargain).

When Coleman finally offered to accept the same deal accepted by Nank, he did so only after he had undergone a sodium amy-tal procedure which the State regarded as questionable. Before then, Coleman’s former counsel had claimed he was ineffective due to his lack of experience. Coleman had also contended that a change of venue had not been sufficient to eliminate prejudice against him. The State was concerned about the voluntariness of the plea. Moreover, the State already had Nank’s agreement to testify against Coleman. Nank had pursued precisely the course which Justice Blackmun suggested should have been pursued by one of the defendants in Burger v. Kemp, — U.S. —, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987) (BlackMun, J., dissenting). There, in commenting that the defendant’s lawyer had been remiss in not offering the defendant's testimony against his co-defendant in exchange for a life sentence, Justice Blackmun stated: “[T]he prosecutor might have decided that ... he would permit [the defendant] to plead to a life sentence in exchange for his testimony against [his co-defendant] and pursue the death sentence against [the co-defendant].” Id. at 3133 n. 12. Here, this is what the prosecutor did. He allowed Nank to plead to a life sentence in exchange for his testimony against Coleman, and pursued the death sentence against Coleman.

The record reveals no evidence of racial prejudice. Despite the absence of this evidence, the dissent insists “[t]he key inquiry here must be as to the prosecutor’s motives in repeatedly and vigorously refusing to accept, or even consider accepting, Coleman's guilty plea_” (Reinhardt, J. dissent at page 13). However, as the Supreme Court stated in McCleskey v. Kemp, — U.S. —, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), “[T]he policy considerations behind a prosecutor’s traditionally ‘wide discretion’ suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, often years after they were made.” Id. at 1768 (footnotes and citations omitted). The Court further stated, “Our refusal to require that the prosecutor provide an explanation for his decisions ... is completely consistent with this Court’s longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case.” Id. at 1769 n. 18 (citations omitted). Coleman has not set forth any facts which would support a prima facie case of unconstitutional conduct. As the dissent notes, Coleman makes “a concrete claim of unequal treatment on the basis of race.” (Reinhardt, J. dissent at page 468). This may be so, but he presents no facts to support the claim.

We conclude that the State had no obligation to accept Coleman’s plea bargain offer. See Hererra, 640 F.2d at 962; accord United States v. Pleasant, 730 F.2d 657, 663-65 (11th Cir.) (involving offer made and withdrawn when not initially accepted), cert. denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984). Neither the State’s acceptance of Nank’s plea offer nor Coleman’s death sentence alters this analysis. See Brooks v. Estelle, 697 F.2d 586, 588 (5th Cir.), stay denied, 459 U.S. 1061, 103 S.Ct. 1490, 74 L.Ed.2d 643 (1982); McMillin v. United States, 583 F.2d 1061, 1063 (8th Cir.), cert. denied, 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 709 (1978).

B. “Black Boy ” Reference

Coleman points to the trial court’s reference to him as a “black boy” to support his allegation of racial discrimination. The use of the term in reference to Coleman was first made during the trial by Coleman’s own counsel during cross-examination of a witness. The court’s use of the phrase occurred in chambers in ruling on a motion for dismissal or judgment of acquittal at the close of the government’s case. At that point in the proceedings the following colloquy occurred:

Prosecution: May the record show that the prosecution resists the motion.

The Court: Well, I treat this as a real serious motion.

Prosecution: In what regard?

The Court: Well, I’m not going to grant the motion, but I say it has some merit.

Prosecution: I frankly don’t think it has any. We could have gotten to the jury on circumstantial evidence alone, Your Honor, and I’m confident of that.

The Court: Well, all you’ve shown is the opportunity for this black boy to do it. You’ve shown plenty of opportunity.

We have expressed concern about the influence race may have in the imposition of the death penalty. Harris, 692 F.2d at 1198 n. 4. “The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986). We do not agree with the State that the court’s reference to Coleman as a “black boy” was “charitable;” however, when placed in context and viewed in light of the entire trial transcript, it does not establish Coleman’s claim of racial discrimination. See United States v. Herbert, 698 F.2d 981, 984 (9th Cir.) (defendant must show prejudice stemming from comment), cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983); United States v. Price, 623 F.2d 587, 592-93 (9th Cir.) (same), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); James v. State, 270 Ark. 596, 605 S.W.2d 448, 451 (1980) (in chambers reference to defendant as “boy” not prejudicial); People v. McGowen, 269 Cal.App.2d 740, 743, 75 Cal.Rptr. 53, 54-55 (1969) (no prejudice from unobjected to comment). Compare Berry v. United States, 283 F.2d 465, 467 (8th Cir.1960) (repeated racial comments made in jury’s presence held prejudicial), cert. denied, 364 U.S. 934, 81 S.Ct. 380, 5 L.Ed.2d 366 (1961); 34 A.L.R.3d 1313, 1320, 1328-30 & n. 19 (1970 & Supp.1986) (discussing cases). Cf. Harris, 692 F.2d at 1197 (evidentiary hearing required when facts in dispute and if proved entitled defendant to relief).

VII. SENTENCING HEARING

Coleman argues that the sentencing hearings and the trial court’s “FINDINGS, CONCLUSIONS, JUDGMENT AND ORDER” (“Findings”) dated July 10, 1978, violated due process. Before evaluating his contentions, we examine these proceedings and the court’s Findings.

A. The June Uth Hearing

By its decision in Coleman I, the Montana supreme court affirmed Coleman’s convictions on all counts. His sentence to serve one hundred years on Count I for deliberate homicide was affirmed. His death sentence for aggravated kidnapping and his sentence to serve forty years for sexual intercourse without consent, inflicting bodily injury, were vacated. The case was remanded to the trial court for resen-tencing. The remand was received by the trial court on June 2, 1978. On that day the judge who had previously sentenced Coleman to death notified counsel of record that Coleman’s sentencing hearing would be held on June 14, 1978, and that the hearing would be conducted “in accordance with section 95-2206.06 through 95-2206.-11, RCM, as amended.”

At the beginning of the June 14th hearing, the court stated that it “had set down for hearing today the matter of mitigation of punishment, intending to reserve for a subsequent date the sentencing.” Defense counsel had filed a motion that day challenging the constitutionality of applying the newly amended 1977 death penalty statutes to Coleman’s case. The State had not responded to this motion. The court stated: “Of course the first question that arises in the Court’s mind, is should the Court [proceed] with the hearing at this time on the matter of mitigation, and of course on one count the Court feels that it may as well proceed, but I’d like to hear from you [defense counsel].” Coleman’s counsel suggested that the State might want an opportunity to respond to his motion, and stated:

I would suggest that the Court continue, and I’m not making this in the form of a formal motion, but I am suggesting that the Court continue this matter in regard to sentencing.... In addition, Your Honor, and as another point which has some bearing upon the Court's determination as to how to proceed, is that we have to present here at this time, no mitigating factors at all. It would be a matter of simply argument. There is a pre-sentence investigation report. I take the view that the situation is primarily one of law, to be resolved as to how the Court should proceed, and then I take the view that unless [the State] wishes to present witnesses, that at the time of sentencing is just simply a statement by [the State’s attorney] pointing out what he thinks relevant and a statement pointing out what I think is relevant, and the Court decides if that’s the way we are to proceed.

The court stated:

Well, the Court has two matters to sentence on, and there is always a possibility that after the Court has considered [defense counsel’s] brief, it might rule favorably on [defense counsel’s] motion, and in that event there would be no necessity for the Court to make any finding [of aggravating or mitigating circumstances] or anything else under the — under the existing statute.... So I think we are just going to proceed particularly with the announcement that you don’t intend to present any mitigating circumstances, and particularly because there is another count upon which this Court was called upon to reimpose sentence. I’ll call then — or ask for responding briefs to the brief that has now been submitted by the defendant. The Court has received —I called for and have received a pre-sentence report, which I now cause to be filed in accordance with the law. The reporting officer, Mr. Thomas Lofland, is present in court. The defendant has received a copy of this pre-sentence investigation. The significant part of it relative to mitigating circumstances is that the defendant has never been convicted of any felony prior to this charge. Now if there are any matters which either the State or the defense wish to clarify with reference to this report, Mr. Lofland is present and you may call him to the stand and you may make any inquiries that you feel are pertinent.

Neither side elected to call the reporting officer, Mr. Lofland, as a witness. The court then stated:

Now with the announcement that the defense does not intend to produce any— call any witnesses to establish any mitigating circumstances, the Court of course has before it all matters during the course of the trial, heard the testimony relating to the aggravating circumstances and also some to mitigating circumstances.⁷ Does counsel for the State now wish to make any statement relative to aggravating circumstances?

In response, the State attempted to call Coleman as a witness, but he declined to testify. The court then stated that it would “render its findings of fact and will go up on the record that is present in the absence of any mitigating circumstances presented by the defendant at this hearing.” It was agreed that the State would file a brief in which it would point out the places in the trial transcript which it believed contained references to aggravating and mitigating circumstances, and the defense would have an opportunity to respond to that brief. The court asked the State if it wanted to make proposed findings of fact, and the State responded that it would do so. The court also invited the defense to prepare proposed findings. The hearing was then adjourned.

B. The July 10th Hearing

The court set July 10, 1978 as the date for Coleman’s sentencing. On that date, at the beginning of the hearing, the court handed counsel for Coleman and the State an unsigned copy of its Findings. Coleman’s attorney did not raise an objection to this procedure. After resolving a preliminary matter, the court stated:

Well, I want you to know that I have considered all of — everything that you have submitted and have given it thought, and that this isn’t just a matter that the Court takes lightly.... The court has set this time for sentencing of the defendant. Since the sentencing hearing, the Court has received copies of briefs and has considered the motion of the defendant to quash and having studied and considered the matter, has prepared its findings as required by law. Before pronouncing sentencing, [sic] does counsel have anything to say to the Court?

Defense counsel then read into the record a statement he had prepared on Coleman’s behalf. He asked the court to consider that Coleman had never “been in any trouble before,” that the crimes of which he had been convicted were inconsistent with his “whole history as shown by the records in this case,” and that reports from people who had known Coleman in Great Falls, Montana where he had worked were favorable. The State responded, arguing among other things, that Coleman had initiated the attempts to kill Harstad, that Harstad had been killed to “destroy the evidence” of her kidnapping and sexual assault, that according to the pre-sentence report Coleman had feigned homosexuality to convince the court he did not rape the victim, and that Coleman’s guilt had been determined beyond a reasonable doubt by the jury. The court then stated:

THE COURT: In pronouncing sentence I do want the parties to know that this is a decision that is extremely agonizing for the Court to make. I have not looked at the points that have been raised lightly, but many of the arguments raised by the defense, of course have been considered heretofore, and the jury have found from the factual standpoint that the defendant was guilty beyond a reasonable doubt, and I do not disagree with that conclusion of the jury. The one mitigating circumstance is that the defendant has not prior to this time been convicted of any felony, but in view of the enormity of the crime committed, and the Court’s feeling that this one circumstance does not overcome the aggravated circumstances, I have made findings to this effect, written findings as required by law. Also I have made conclusions and judgment which have been furnished to the defendant and the State at this time, and I will only at this time read the Court’s conclusions and judgment.

The court then read its conclusions and judgment by which Coleman was sentenced to death.

C. The Court’s Findings

The court’s written Findings reviewed the evidence of the Harstad murder and kidnapping and concluded as to aggravating circumstances:

1. That the aggravating circumstances set forth in Section 95-2206.8, paragraph (7) exists for the reason following:

That the offense of aggravated kidnapping was committed by the defendant and it resulted in the death of the victim, Miss Peggy Harstad.

The Findings also discussed the mitigating circumstances listed in MontCode Ann. § 95-2206.9. As to the first factor, that “the defendant has no significant history of prior criminal activity,” id., the court found:

2. That the State has been unable to prove by means of record checks that the defendant has any other history of criminal activity. The only other criminal act which appears in the trial record in this cause is aggravated burglary of a home in Roundup, Montana, where certain guns were stolen by the defendant and Robert Nank on July 4, 1974. By reason of the foregoing, the credit in mitigation allowed by Section 95-2206.9(1) is not appropriate to this defendant.

As to the remaining mitigating circumstances listed in the Montana Code, id. § 95-2206.9(2) to (8), including whether “any other fact exists in mitigation of the penalty,” id. (8), the court found:

3. That there is no evidence appearing, either in the record of the trial held in this cause or the special sentencing hearing accorded, supporting a finding of any of the circumstances in mitigation under the other numbered paragraphs of Section 95-2206.9, mainly paragraphs (2) through (8).

The court found, among other things, that the offenses were not committed while the defendant was under the influence of any mental or emotional disturbance, the defendant was not a minor, and was a willing participant in the crimes.

In its Conclusions, the court stated:

2. That none of the mitigating circumstances listed in Section 95-2206.9 R.C. M. are sufficiently substantial to call for leniency. That the only mitigating circumstance technically present in this cause is that the defendant has no record history of prior criminal activity.

1. Consideration of Mitigating Circumstances

Coleman first argues that the trial court failed to consider mitigating circumstances dealing with his personal history and characteristics. Although he did not present any evidence as to mitigating circumstances at the sentencing hearing, see Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (similar decision at death sentence hearing); Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985) (passim, same); Williams v. Oklahoma, 358 U.S. 576, 583, 79 S.Ct. 421, 425, 3 L.Ed.2d 516 (1959) (same), the pre-sentence report listed several factors which Coleman argues militated in favor of leniency, including: his community service, clean record, and alleged psychological disorders. The trial court stated that it had considered all of the evidence and materials presented in rendering its Findings. See also Coleman II, 185 Mont. 299, 605 P.2d at 1019 (rejecting contention that trial court did not give “proper consideration to evidence when making its findings”).

State court findings of fact arrive at a federal habeas corpus proceeding with a “presumption of correctness.” Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983) (per curiam). This presumption applies both to state trial and appellate court findings of fact, id. (involving state appellate court’s interpretation of trial court proceedings in imposing death sentence), and may only be overcome by “ ‘convincing evidence.’ ” Kennick v. Superior Court, 736 F.2d 1277, 1281 (9th Cir.1984) (quoting 28 U.S.C. § 2254(d)).

The record reveals that the trial court considered all of the evidence and arguments presented regarding mitigation, but found that there was no evidence of mitigating factors sufficiently substantial to call for leniency. At the June 14th hearing, the court stated that it had received the pre-sentence report and noted that “the significant part of it relative to mitigating circumstances, is that the defendant has never been convicted of any felony prior to this charge.” The trial court then agreed to accept a brief from the State and from Coleman’s counsel specifically discussing the relevant aggravating and mitigating circumstances. Coleman III, 633 P.2d at 632. At that hearing and again at the later July 10th hearing, the court stated several times, without challenge, that it had read and considered all materials submitted. The court’s Findings similarly stated it had reviewed “all matters submitted, together with the evidence produced at trial, and ... [observed] the defendant’s demeanor during trial and while testifying....” Finally, at the July 10th hearing, Coleman’s attorney reviewed for the court the circumstances from his client’s personal history favoring leniency, and the State argued in rebutr tal. In light of the trial court’s repeated and unchallenged statements that it had received and considered all evidence presented, its specific reference to the pre-sentence report, its acceptance of written briefs and oral argument regarding mitigating circumstances, and Coleman’s decision to proceed on the basis of the written record, see Williams v. Oklahoma, 358 U.S. at 583, 79 S.Ct. at 425 (and cases cited supra with full cite to this case), we conclude that the trial court considered all of the mitigating circumstances presented and concluded these factors were not sufficiently substantial to call for leniency.⁸

Coleman maintains, however, that the trial court’s failure to discuss his personal history and characteristics in its Findings indicates the court did not consider these factors in sentencing. In a series of cases, the Eleventh Circuit has rejected the same argument. Johnson v. Wainwright, 778 F.2d 623, 629 (11th Cir.1985); Funchess v. Wainwright, 772 F.2d 683, 693 (11th Cir.), reh’g denied en banc, 776 F.2d 1057 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986); Raulerson v. Wainwright, 732 F.2d 803, 805-08 (11th Cir.), reh’g denied, 736 F.2d 1528 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984); Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.), reh’g denied, 729 F.2d 1468 (11th Cir.), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); Dobbert v. Strickland, 718 F.2d 1518, 1523-24 (11th Cir.) (Dobbert II), reh’g denied, 720 F.2d 1294 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984). In Dobbert II, the court held:

The fact that the sentencing order does not refer to specific types of non-statutory ‘mitigating’ evidence petitioner introduced indicates only the trial court’s finding the evidence was not mitigating, not that such evidence was not considered. Whether particular evidence, such as the fact that Dobbert had a difficult childhood, is mitigating depends on the evidence in the case as a whole and the views of the sentencing and reviewing judges. What one person may view as mitigating, another may not. Merely because the Florida courts, operating through a properly drawn statute with appropriate standards to guide discretion, do not share petitioner’s view of the evidence reveals no constitutional infirmity. See Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969-70.

718 F.2d at 1524.

In Funchess, 772 F.2d 683, the trial judge’s “Findings of Fact” were virtually identical to those made here. The judge in Funchess did not refer to the non-statutory mitigating factors, and stated “that sufficient aggravating circumstances exist ... and this Court further finds that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” 772 F.2d at 693 n. 11. The Eleventh Circuit rejected Funchess’ argument that the trial judge’s “failure to discuss any aspect of the non-statutory mitigating circumstances is absolute proof that the trial judge failed altogether to consider these factors:”

During the second resentencing hearing, Funchess presented evidence relating to certain non-statutory mitigating circumstances. The trial court considered this evidence but obviously was not persuaded that it justified the establishment of any non-statutory mitigating factors. Consequently, the trial judge did not include a detailed discussion regarding these alleged circumstances in his findings of fact. This court has on previous occasions held that ‘[t]he fact that the sentencing order does not refer to specific types of non-statutory ‘mitigating’ evidence petitioner introduced indicates only the trial court’s finding the evidence was not mitigating, not that such evidence was not considered.’ [Raulerson, 732 F.2d at 807], Accordingly, appellant’s argument on this matter is without merit.

Id. at 693 (footnotes omitted).

We agree with the Eleventh Circuit that a trial judge’s failure to discuss a defendant’s personal history in its findings does not indicate that these factors were not considered. Montana’s death penalty statute authorizes the trial judge to consider a defendant’s personal history and characteristics, and lists as a mitigating circumstance “[a]ny other fact existing] in mitigation of the penalty.” MontCode Ann. §§ 95-2206.7 and 95-2206.9(8). That the trial judge did not refer to evidence of personal history in his Findings only indicates he found that this evidence did not mitigate the penalty and was not “sufficiently substantial to call for leniency.” Id. § 95-2206.10. Indeed, the trial judge’s comments at the July 10th hearing and his Findings expressly stated that this was his view. We must therefore reject Coleman’s argument as inconsistent with the trial judge’s own comments, a fair reading of the record, and the analysis enunciated by the Eleventh Circuit which we find persuasive.

2. Discussion of Coleman’s Personal History

Coleman argues that even if the trial court considered all of the evidence presented and found it insufficient to justify leniency, the due process clause nevertheless requires the sentencing authority to specifically discuss this evidence in its findings. We disagree.

The Supreme Court has emphasized that death, in its finality, is qualitatively different from any other punishment. See, e.g., Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). The Court has recognized that although sentencing will often involve the exercise of discretion, “that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (citation omitted); see also Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (state death penalty statute may not preclude sentencing authority from considering defendant’s character). In Lockett, the Court held violative of due process an Ohio statute which only permitted consideration of three mitigating circumstances. The Court reasoned that the sentencer must not be “precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record ... that the defendant proffers as a basis for a sentence less than death.” Id. at 604, 98 S.Ct. at 2964 (emphasis in original). Similarly, in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Court overturned a death sentence because the trial judge held it was precluded under Oklahoma law from considering the petitioner’s violent background as a mitigating circumstance. Id. at 109, 102 S.Ct. at 873-74. The Court concluded “it was clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a matter of law he was unable even to consider the evidence.” Id. at 113, 102 S.Ct. at 876 (emphasis in original). The Court noted that “the Oklahoma death penalty statute permits the defendant to present evidence ‘as to any mitigating circumstances’_ Lockett requires the sentencer to listen.” Id. at 115 n. 10, 102 S.Ct. at 877 n. 10 (citation omitted). See also Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986).

While Lockett and Eddings hold that the sentencing authority may not impose restrictions, as a matter of law, on the evidence presented by the defendant in mitigation, “[njeither of these cases establishes the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all.” Barclay v. Florida, 463 U.S. 939, 961 n. 2, 103 S.Ct. 3418, 3430-31 n. 2, 77 L.Ed.2d 134 (1983) (Stephens and Powell, J. concurring); Johnson, 778 F.2d at 629; Raulerson, 732 F.2d at 805-08; Palmes, 725 F.2d at 1523. The Court in Eddings emphasized that the error in that case was the trial court’s self-imposed legal restrictions on the consideration of evidence presented in mitigation. 455 U.S. at 113-15, 102 S.Ct. at 876-77. The Court carefully noted, however, that once the state courts admit evidence presented in mitigation, the “sentencer, and the [state court of appeals] on review, may determine the weight to be given relevant mitigating evidence.” Id. at 114-15, 102 S.Ct. at 876-77. The due process clause only precludes these courts from “giv[ing] it no weight by excluding such evidence from their consideration.” Id. at 115, 102 S.Ct. at 877. See also Skipper, 106 S.Ct. at 1670-71; Spaziano, 468 U.S. at 467, 104 S.Ct. at 3166 (federal court does, not ask whether it agrees with state courts, only whether decision is “irrational or arbitrary”); Raulerson, 732 F.2d at 806-08.⁹

The Court’s approval of various death penalty statutes demonstrates that the due process clause does not impose the requirement that Coleman would have us adopt. In Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, the Court upheld a Texas statute which required the jury to answer three general questions regarding mitigating and aggravating circumstances;¹⁰ if the jury was unanimous, it could simply answer “yes” or “no” to these inquiries. Id. at 269 & n. 5, 96 S.Ct. at 2955 & n. 5. The statute imposed no requirement that the jury provide findings discussing mitigating factors which it had rejected. See Martin v. Maggio, 711 F.2d 1273, 1286-87 (5th Cir.1983) (affirming, Martin v. Blackburn, 521 F.Supp. 685, 715 (E.D.La.1981)), reh’g denied, 739 F.2d 184 (5th Cir.), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984). The Court emphasized that the Texas statute provided for prompt judicial review, and was constitutional because it assured “that sentences of death will not be ‘wantonly’ or ‘freakishly’ im-posed_” Jurek, 428 U.S. at 276, 96 S.Ct. at 2958 (citation omitted). Similarly, in Gregg, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Georgia statute required the sentencing authority to consider the list of aggravating circumstances provided in the statute and to consider any mitigating evidence presented by the defendant; if the verdict was death, the judge or jury was required to specify the aggravating circumstances found. Id. at 166, 197, 96 S.Ct. at 2922, 2936. The statute imposed no obligation on the sentencing authority to discuss mitigating factors presented but found insufficient to justify leniency. See id. at 163-67 & nn. 4-10, 96 S.Ct. at 2920-22 & nn. 4-10 (quoting Georgia statute); id. at 197, 96 S.Ct. at 2936. The Court noted that the possibility of arbitrariness was reduced by requiring the state appellate court to examine whether the sentence was “excessive” and whether the evidence supported the jury’s or judge’s findings. Id. at 166-67, 206-07, 96 S.Ct. at 2922, 2940-41. The Court has approved other sentences in which the trial judge has made findings but not discussed factors dealing with a defendant’s personal history considered by the judge but rejected. See Baldwin, 105 S.Ct. at 2731; Spaziano, 468 U.S. at 466-67,104 S.Ct. at 3165-66 (involving Florida statute, which, like Montana’s, required judge to list findings); Proffitt, 428 U.S. at 247, 250, 253, 96 S.Ct. at 2964, 2965, 2967 (same, noting state appellate review).

The record in this case does not indicate that the trial court imposed any restrictions on the introduction or consideration of evidence in mitigation. Rather, as noted, the court considered the evidence and materials presented and concluded that the factors in mitigation did not outweigh the seriousness of Coleman’s offense. On appeal, the Montana supreme court found that the trial court had followed the Montana death penalty statute, Spaziano, 448 U.S. at 467, 104 S.Ct. at 3166, and evaluated the record to determine whether the evidence supported the trial court’s Findings. Mont.Code Ann. § 95-2206.13. See Gregg, 428 U.S. at 207, 96 S.Ct. at 2941. The Montana supreme court weighed the evidence and found no error:

[The pre-sentence] report indicated the defendant had no record of criminal activity and had been an accepted member of the community where he lived prior to July 4, 1974, the date of the commission of this crime. The evidence in this case supporting the finding of the aggravating circumstance established that the defendant had been a deliberate, voluntary participant in the kidnapping and subsequent rape and murder of the victim. The evidence further established that the death of the victim occurred after a sexual assault, not in a moment of passion, but over a period of time with the defendant first bludgeoning, then attempting to strangle, then finally drowning the victim in an effort to effectuate a deliberate decision to kill Peggy Harstad. Against the record of this brutal, crime, we cannot say that the defendant’s lack of prior criminal activity of record is a factor sufficiently substantial to call for leniency.

Coleman II, 185 Mont. 299, 605 P.2d at 1019.

Due process requires that the state trial and appellate courts listen. Eddings, 455 U.S. at 115 n. 10,102 S.Ct. at 877 n. 10. The Montana courts have listened and rendered their judgment. “Whether or not ‘reasonable people’ could differ over the results here, we see nothing irrational or arbitrary about the imposition of the death penalty in this case.” Spaziano, 468 U.S. at 467, 104 S.Ct. at 3166.

3. Consideration of Roundup Burglary

Coleman next argues that the trial court’s consideration of Nank’s trial testimony implicating Coleman in the Roundup burglary violated due process. His argument is twofold: (a) that uncorroborated testimony about an unconvicted crime may not be used to demonstrate prior criminal activity; (b) that he never had notice of or an opportunity to contest this testimony. See Skipper, 106 S.Ct. at 1671 n. 1.

a. Nank’s Testimony

The Montana death sentence statute permits the court to consider in mitigation whether the “defendant has no significant history of prior criminal activity.” Mont. Code Ann. § 95-2206.9. In Coleman II, 185 Mont. 299, 605 P.2d at 1019-20, the Montana supreme court held that this statute permitted the trial court to consider the Roundup burglary in sentencing. We have long held that the due process clause does not preclude the sentencing judge from considering evidence of prior criminal conduct not resulting in a conviction. See, e.g., United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir.1979); United States v. Miller, 588 F.2d 1256, 1266-67 (9th Cir.1978) (citing authorities from this court), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); Farrow v. United States, 580 F.2d 1339, 1359-60 (9th Cir.1978) (en banc); United States v. Weston, 448 F.2d 626, 628-34 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972); United States v. English, 421 F.2d 133 (9th Cir.1970) (per curiam) (passim). In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (Williams), the Court upheld the trial court’s consideration, in imposing the death sentence, of some thirty burglaries allegedly committed by the defendant, even though he had not been convicted of these crimes. Id. at 244, 69 S.Ct. at 1081. See also McMillan, 106 S.Ct. at 2420 (discussing Williams); Williams v. Oklahoma, 358 U.S. at 583-84, 79 S.Ct. at 425-26 (consideration of prior record in death sentence); see also United States v. Wondrack, 578 F.2d 808, 809-10 n. 1 (9th Cir.1978).

In Morgan, 595 F.2d 1134, we noted three due process limitations on a court’s use in sentencing of crimes for which a defendant has not been convicted. First, a court may not consider evidence obtained in violation of the principles underlying Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Morgan, 595 F.2d at 1136. Second, a court may not consider false information. Id. (citing Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)). Third, a court may not consider information derived solely from a pre-sentence report “ ‘unless it is amplified by information such as to be persuasive of the validity of the charge there made.’ ” Id. (quoting Weston, 448 F.2d at 634). In United States v. Ibarra, 737 F.2d 825 (9th Cir.1984), we expanded upon the second and third limitations expressed in Morgan and held that the challenged information is “ ‘false or unreliable’ if it lacks ‘some minimal indicium of reliability beyond mere allegation.’ ” Id. at 827 (citation omitted); see also United States v. Hull, 792 F.2d 941, 942-43 (9th Cir.1986) (applying this standard to evidence of unconvicted crimes; noting abuse of discretion standard to trial court’s determination). Contrary to Coleman’s contention, our cases have never established any per se rule preventing consideration of uncorroborated testimony in imposing sentence. Rather, the controlling inquiry is whether the evidence is minimally reliable. Id. at 942. Accord United States v. Whitten, 706 F.2d 1000, 1007 (9th Cir.1983) (evidence for conviction), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). See also United States v. Florence, 741 F.2d 1066, 1069 (8th Cir.1984) (judge may consider uncorroborated hearsay; citing Farrow, 580 F.2d at 1360); United States v. Papajohn, 701 F.2d 760, 763 (8th Cir.1983) (same); United States v. Ray, 683 F.2d 1116, 1120 (7th Cir.) (same; citing authorities), cert. denied, 459 U.S. 1091, 103 S.Ct. 578, 74 L.Ed.2d 938 (1982); State v. Koon, 298 S.E.2d 769, 773 (S.C.1982) (death penalty context) (disapproved on other grounds in Skipper, 476 U.S. 1, 106 S.Ct. , 90 L.Ed.2d 1); Alvord v. State, 322 So.2d 533, 538 (Fla.1975) (same), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). See McMillan, 106 S.Ct. at 2420 (citing Williams, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337, a death penalty case, and noting that evidence is often considered in discretion of judge without burden allocation or standard of proof).

Nank’s testimony regarding the Roundup burglary satisfied this standard. The trial judge observed Nank while he testified and heard his testimony first hand. See United States v. Cruz, 523 F.2d 473, 476 (9th Cir.1975), cert. denied, 423 U.S. 1060, 96 S.Ct. 797, 46 L.Ed.2d 651 (1976). The trial judge also observed Coleman as he testified at the trial and heard him deny any involvement in the burglary. At the July 10th hearing, Coleman’s counsel generally denied any involvement by Coleman in prior criminal activities. But he did not challenge the reference to Coleman’s participation in the Roundup burglary in the pre-sentence report or in the trial court’s unsigned Findings which were distributed at the beginning of the July 10th hearing. Coleman’s counsel declined to call Nank to testify at the sentencing hearing and subject him to further cross-examination.¹¹ In addition, the Montana supreme court determined that Nank was corroborated on several points. Coleman I, 177 Mont. 1, 579 P.2d at 748 (including Negroid pubic hairs found in the Harstad vehicle and Coleman’s fingerprints in the car and purse).

Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam), cited by Coleman, does not change our conclusion. There, the jury sentenced the defendant to death. Although the jury did not find that the defendant had committed the necessary aggravating element of forceable rape, the Georgia supreme court sustained the conviction because the evidence would have supported that finding. Id. at 15-16, 99 S.Ct. at 236. The Court reversed because the jury did not convict the defendant of forceable rape and the sentence could not be sustained on a theory not accepted by the jury. Id. at 16-17, 99 S.Ct. at 236-37. Unlike the Georgia supreme court in Presnell, the trial judge here was authorized to enter sentence and determine the existence or non-existence of aggravating or mitigating circumstances. MontCode Ann. §§ 95-2206.6 and 95-2206.-10. See Spaziano, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (passim) (upholding statute permitting trial court to enter sentencing in death penalty). The trial judge, like the jury, found that Coleman had committed aggravated kidnapping. Once the court found this aggravating circumstance, the court determined that Coleman was not entitled to mitigation credit for his otherwise clean record, because of his participation in the Roundup burglary and the enormity of his offense. We find nothing irrational or arbitrary about the trial court’s weighing of these factors, see id. at 467, 104 S.Ct. at 3166, nor may we substitute our judgment for that of the Montana courts. Id.

b. Notice and Opportunity

The Supreme Court has stated that to comply with due process, notice must “apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’ ” Memphis Light, Gas & Water v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978) (footnote omitted). The record reveals Coleman received adequate notice to prepare for the sentencing court’s consideration of the Roundup burglary. The sentencing judge notified counsel for Coleman and the State that the sentencing hearing would be held on June 14th in accordance with Montana’s death sentence statute. This statute authorizes the court to consider evidence proffered at trial (and probative on the sentence the defendant should receive) without reintroduction at sentencing. MontCode Ann. § 95-2206.7. Both Nank and Coleman had testified at trial concerning the Roundup burglary. Further, the pre-sentence report discussed the Roundup burglary and the report was furnished to Coleman’s counsel at the June 14th hearing. Coleman’s counsel referred to the contents of this report at the June 14th hearing. Finally, Coleman’s counsel received the trial court’s unsigned Findings (which referred to the Roundup burglary) at the beginning of the later July 10th hearing. At no time did Coleman’s counsel indicate a desire to reexamine Nank, challenge his testimony other than by oral argument, request a continuance to recall Nank, or take any other steps to attack the claim that Coleman participated in the Roundup burglary. See Gorham v. Wainwright, 588 F.2d 178, 180 (5th Cir.1979); see also In re Acequia, Inc., 787 F.2d 1352, 1360 (9th Cir.1986) (civil context; discussing notice requirements and counsel’s failure to request continuance).

For similar reasons, the record does not support Coleman’s claim that he had no opportunity to challenge Nank’s testimony. We agree with the Montana supreme court that Coleman “at the first hearing, did not testify in mitigation, declined to examine the officer who prepared the pre-sentence report, and was given an opportunity to submit both further briefs on sentencing and his proposed findings and conclusions.” Coleman III, 633 P.2d at 632. We note also that at the second hearing Coleman again declined the opportunity to challenge Nank’s testimony. See also Coleman II, 185 Mont. 299, 605 P.2d at 1018.

4. Distribution of Trial Court’s Findings

Coleman contends that the trial court’s preparation of its unsigned Findings before the July 10th hearing violated due process. This argument, however, ignores the trial court’s statement at the June 14th hearing:

Now the announcement that the defense does not intend to produce any — call any witness to establish any mitigating circumstances, the Court has before it all matters during the course of the trial, heard the testimony relating to aggravating circumstances and also some mitigating circumstances....

The court then indicated it would “render its findings of fact and will go up on the record that is present in the absence of any mitigating circumstances presented by the defendant at this hearing.” The court also requested proposed findings from the parties. Given the court’s statement that it would prepare its Findings, we find unpersuasive the argument that the court’s preparation of those findings for the July 10th hearing violated due process. The court did exactly what it said it was going to do, and did so without any objection from Coleman.

5. Reliance on Undisclosed Information

Coleman finally argues that he had no knowledge of the statements made by his former counsel at the July 2, 1976 hearing,¹² and that these statements prejudiced the trial court when it pronounced sentence on July 10, 1978.

The record does not support Coleman’s contention that he did not know about his counsel’s statements of July 2. Coleman was present at the hearing on July 3, 1975. As the Montana supreme court found, Coleman’s counsel referred to the sodium amytal examination at that hearing, and indicated Coleman was willing to plead guilty and reconduct the examination before the court. Coleman IV, 663 P.2d at 1158-59, 1160. These statements correspond to what was said at the July 2nd hearing — that in the context of the plea bargain, the sodium amytal examination refreshed Coleman’s memory and he was therefore ready to plead guilty. According to Coleman’s former counsel, Coleman had previously “blocked out” his alleged participation in the Harstad murder until he had taken the sodium amytal examination and was willing to repeat the examination before the court. In addition, Coleman cannot now claim undisclosed knowledge of his counsel’s attempt to withdraw, because his counsel repeated this request at the July 3rd hearing:

I believe there are certain professional and certain ethical positions both as an individual and as an attorney, and I have indicated to Mr. Nank — or to Mr. Coleman, that if I have to continue in this case if we have to try this case, then there is no way in the world I can state to the jury that he is innocent of deliberate homicide and that he’s innocent of sexual intercourse without consent.... Now — however, I want the record to be clear that I feel that because of my moral and professional, ethical decisions, that I should be relieved....

The only thing I can do ... is attack fully the question of whether they can establish aggravated kidnapping.

Further, Coleman has not alleged any facts demonstrating the trial court relied on his counsel’s statements in sentencing Coleman. A sentence will be vacated on appeal only if the information presented to the court is (a) false or unreliable, and (b) demonstrably made the basis for the sentence. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986) (citing authorities). In the context of a request for a writ of habeas corpus, “a motion must be denied unless it affirmatively appears in the record that the court based its sentence on improper information.” Farrow, 580 F.2d at 1359 (emphasis in original); United States v. Perri, 513 F.2d 572, 574 (9th Cir.1975). See Gardner, 430 U.S. 349, 353, 97 S.Ct. 1197, 1202, 51 L.Ed.2d 393 (involving reliance by sentencing judge on undisclosed information). The Montana supreme court carefully reviewed the record and found “no indication that the sentencing judge considered defense counsel’s statement or the sodium amytal examination results in sentencing Coleman.” Coleman IV, 663 P.2d at 1160. See Goode, 464 U.S. at 85, 104 S.Ct. at 382 (even if sentencing record in death penalty hearing is ambiguous, federal court should defer to state appellate court factual findings in death sentence case). Our independent review of the sentencing hearing transcript and the trial court’s Findings fully supports this conclusion.

Coleman in effect urges adoption of a per se rule requiring reversal whenever a judge hears inherently prejudicial information and subsequently (here three years later) enters a death sentence. He constructs this argument around our holding in Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978). In Lowery, the defendant was charged with first degree murder and pleaded not guilty. In a trial in which the judge served as the trier of fact, the defendant testified during examination by her counsel and denied shooting the victim. Her counsel immediately requested a recess and a meeting with the judge outside of the defendant’s presence. The defendant’s counsel moved to withdraw from the case; he did not explain the reason, and the trial court denied the motion. Id. at 729. In closing argument, the defendant’s counsel did not refer to his client’s claims of innocence. The trial judge found the defendant guilty. We reversed, stating: “[I]f, under these circumstances, counsel informs the fact finder of his belief [that his client’s defense is based on false testimony] he has, by that action, disabled the fact finder from judging the merits of the defendant’s defense.” Id. at 730. We emphasized in Lowery that the “judge, and not a jury, was the fact finder.” Id. In the present case, a jury, not a judge, was the finder of fact. The jury never heard Coleman’s counsel’s comments, and found Coleman guilty of murder and aggravated kidnapping nonetheless. Although the trial judge heard these comments in a plea bargaining context and sentenced Coleman three years later, the sentencing occurred only after the jury had found Coleman guilty beyond a reasonable doubt.

Coleman maintains, however, that the trial judge was the fact finder at sentencing and that Lowery should be extended to this case. Acceptance of this argument would contradict the requirement, repeatedly expressed in our case law, that to warrant reversal the judge must actually rely on improper information in sentencing. See, e.g., Messer, 785 F.2d at 834. This rule is sound and should not be disturbed. A trial judge will often be exposed to, and even consider in sentencing (see United States v. Mills, 597 F.2d 693, 699 (9th Cir.1979)) evidence and accusations which would be wholly inadmissible in a trial on a defendant’s guilt or innocence. See, e.g., Williams, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (death sentence context); United States v. Wright, 593 F.2d 105, 109 (9th Cir.1979) (illegally seized evidence). The prosecution may attempt to introduce, at sentencing, information which is prejudicial, unreliable or simply false. See, e.g., Townsend, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Weston, 448 F.2d 626. To hold that a judge may not sentence the defendant because of exposure to such prejudicial information would be unwarranted, especially where, as here, the judge presided over an extensive trial and heard all of the testimony and evidence presented to the jury which found Coleman guilty. See, e.g., United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976) (involving motion for recusal), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977); Commonwealth v. Wilson, 381 Mass. 90, 407 N.E.2d 1229, 1248-49 (1980) (due process challenge in death penalty case); accord United States v. Bunch, 730 F.2d 517, 519 (7th Cir.1984) (recusal motion). To further conclude that a violation of due process has occurred at a sentencing hearing, even though the record reveals no reliance on the prejudicial information, would represent an inappropriate extension of Lowery to a different context. The concerns underlying Lowery — a defendant’s counsel informing the trier of fact at trial of his client’s deception — are not present here; nor would an extension of Lowery comport with our case law dealing with sentencing or the rationale underlying those cases.¹³

AFFIRMED.

APPENDIX

95-2206.6. Sentence of death — hearing on imposition of death penalty. When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the existence or nonexistence of the circumstances set forth in 95-2206.8 and 95-2206.9 for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone.

95-2206.7. Sentencing hearing — evidence that may be received. In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

95-2206.8. Aggravating circumstances. Aggravating circumstances are any of the following:

(1) The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison.

(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide.

(3) The offense was deliberate homicide and was committed by means of torture.

(4) The offense was deliberate homicide and was committed by a person lying in wait or ambush.

(5) The offense was deliberate homicide and was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person.

(6) The offense was deliberate homicide as defined in subsection (l)(a) of 94-5-102 and the victim was a peace officer killed while performing his duty.

(7) The offense was aggravated kidnapping which resulted in the death of the victim.

95-2206.9. Mitigating circumstances. Mitigating circumstances are any of the following:

(1) The defendant has no significant history of prior criminal activity.

(2) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(3) The defendant acted under extreme duress or under the substantial domination of another person.

(4) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(5) The victim was a participant in the defendant’s conduct or consented to the act.

(6) The defendant was an accomplice in an offense committed by another person, and his participation was relatively minor.

(7) The defendant, at the time of the commission of the crime, was less than 18 years of age.

(8) Any other fact exists in mitigation of the penalty.

95-2206.10. Consideration of aggravating and mitigating factors in determining sentence. In determining whether to impose a sentence of death or imprisonment, the court shall take into account the aggravating and mitigating circumstances enumerated in 95-2206.8 and 95-2206.9 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in 95-2206.8 exists, the court may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense.

95-2206.11. Specific written findings of fact. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact as to the existence or nonexistence of each of the circumstances set forth in 95-2206.8 and 95-2206.9. The written findings of fact shall be substantiated by the records of the trial and the sentencing proceeding.

95-2206.12. Automatic review of sentence. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana as provided for in 95-2206.13 through 95-2206.15.

95-2206.13. Review of death sentence— priority of review — time for review. The judgment of conviction and sentence of death are subject to automatic review by the supreme court of Montana within 60 days after certification by the sentencing court of the entire record unless the time is extended by the supreme court for good cause shown. The review by the supreme court has priority over all other cases and shall be heard in accordance with rules promulgated by the supreme court. The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration.

95-2206.14. Transcript and records of trial transmitted. The clerk of the trial court, within 10 days after receiving the transcript, shall transmit the entire record and transcript to the supreme court.

95-2206.15. Supreme court to make determination as to the sentence. The Supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine:

(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 95-2206.8 and 95-2206.9; and

(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.

1 . The new counsel did not obtain a transcript of the July 2 and July 3, 1975 hearings until February 1982. See Coleman v. Risley, 663 P.2d 1154, 1158 (Mont.1983) (Coleman IV). Coleman's ha-beas corpus petition was filed in the United States district court in November 1981.

2 . The State contended the crack in Coleman’s motorcycle helmet was caused by striking Har-stad on the head, and that the crack in the helmet was part of the evidence corroborating Nank’s testimony. At Coleman’s trial, a pathologist testified Harstad’s skull had not been fractured.

3 . The statute provided that "[a] court shall impose sentence of death following conviction of aggravated kidnapping if it finds that the victim is dead as a result of the criminal conduct.” Rev.Code Mont. § 94-5-304 (1947) (repealed 1977).

4 . Coleman’s sentence for sexual intercourse without consent, inflicting bodily injury was also vacated. The Montana supreme court concluded there was insufficient evidence to show Coleman had inflicted bodily injury upon Har-stad in the course of committing sexual intercourse because she was murdered sometime after the rape incident. Coleman I, V77 Mont. 1, 579 P.2d at 742-43.

5 . We do not read Fitzpatrick as stating that a defendant must prove mitigating circumstances beyond a reasonable doubt. Fitzpatrick does not impose such a standard, nor does it require the defendant to prove mitigating factors by clear and convincing evidence or by a preponderance of evidence. 638 P.2d at 1013. Rather, Fitzpatrick holds that the State does not bear the burden of proof and that the defendant bears the burden of "bringing forth the evidence pertinent to the question of mitigation.” Id. See McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986) (sentencing courts often hear evidence presented without "clear and convincing” burden requirement or other such burden). The transcript of the sentencing hearing (see infra section VII) does not indicate that the court required Coleman to prove mitigation beyond a reasonable doubt; the record in fact reveals no burden allocation. Coleman raised the issue of burden allocation both in the State courts and district court.

On burden of production generally, see Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986).

6 . Coleman’s argument that his jury panel was selected using the key man system is without merit. The key man system of jury selection involves the selection of particular persons to make up a pool from which a jury is then chosen at random. It is not unconstitutional on its face. Castaneda v. Partida, 430 U.S. 482, 497, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977); United States v. Nelson, 718 F.2d 315, 319 (9th Cir.1983). Here there is nothing to suggest the jury panel was chosen using the key man system. The initial 200 jurors were selected at random. Cf. Castaneda, 430 U.S. at 497, 97 S.Ct. at 1281. The panel of sixty potential jurors were in essence volunteers, a fact which standing alone does not render the composition of a panel unconstitutional. Nelson, 718 F.2d at 319.

7 . At his trial, Coleman testified to his previous clean criminal record, military service, psychological problems, and community service.

8 . The dissent argues that "it is clear from the record and from the written findings that the judge failed to give any consideration whatsoever to ... Coleman’s underprivileged and harsh childhood and adolescence, his military service, his good reputation in his neighborhood, his community service, and his psychological disorders.” (Reinhardt, J. dissent at page 498). Further: "The record before us reveals that the court simply was unaware of or failed to consider Coleman’s character and background.” Id. at 499. Finally, the dissent claims the majority is speculating "as to what the sentencing judge actually considered.” Id. at S02. This is not the case. The record affirmatively establishes that the sentencing judge read and considered the pre-sentence report. That report contained all of the circumstances the dissent argues the court should have considered. To suggest that the court must have been unaware of, or failed to consider, portions of a report which the court stated it had read and considered, not only speculates as to errors of omission the court may have committed, but flies directly in the face of the record. On the record before us, we cannot speculate that the sentencing judge omitted to do that which he tells us he did.

9 . In Raulerson, the court rejected an argument similar to that presented by Coleman on facts virtually identical to those here:

A careful examination of Eddings reveals that the Constitution prescribes only that the sentencer hear and consider all the evidence a defendant chooses to offer in mitigation. There is no requirement that the court agree with the defendant's view that it is mitigating, only that the proffer be given consideration.

In summary, Lockett stands for the proposition that the sentencer must consider all mitigating evidence. After so doing, it then is generally free to accord that evidence such weight in mitigation that it deems fit.

Id. at 807-08 (emphasis in original).

10 . The questions were:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

428 U.S. at 269, 96 S.Ct. at 2955.

11 . We discuss infra text following this subsection Coleman’s argument that he had no opportunity to contest Nank’s testimony regarding the Roundup burglary.

12 . The contents of that hearing are discussed supra in the statement of facts.

13 . Coleman's other contentions regarding the trial court's sua sponte amendment of the information to include the kidnapping count, and the trial court’s special interrogatory concerning whether the kidnapping had caused the victim’s death, are without merit. Coleman I, 177 Mont. 1, 579 P.2d at 745-46, 751.