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

761 F.2d 1348, 1985 U.S. App. LEXIS 31185

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 1985
• Docket: 83-3933
• Status: Published

Opinions

POOLE, Circuit Judge.

Gene Austad was convicted by a jury in a Montana state court of deliberate homicide, robbery, sexual intercourse without consent and aggravated burglary. He was sentenced to life imprisonment on the conviction of deliberate homicide, and to consecutive forty year terms on each of the other three charges. After exhausting his state remedies, Austad filed a petition for writ of habeas corpus in the district court claiming that he had been denied a fair trial because the great volume of pretrial publicity created an environment of hostility which made it impossible to obtain an unbiased jury in the area of Great Falls, Montana. The petition alleged a number of constitutional deficiencies which the district court reviewed, all of which were denied. Austad has appealed only the order denying his claims involving the change of venue and the ruling that he was mentally fit to stand trial.

Specifically Austad argues that the district court’s findings that he was not denied a fair trial due to prejudicial publicity are insufficient because the court did not make an independent examination of the exhibits in the state court record which included the publicity.

The crimes charged all took place on April 21, 1978, but because of severe injuries which Austad sustained while fleeing from the police, and because of various pretrial delays, his trial did not take place until almost two years later. The petition contends that the pervasive news coverage following commission of the offenses made it impossible to receive a fair trial by jury even with the passage of time, and therefore due process required that there be a change of venue. The district court considered this constitutional challenge in light of the whole state court record presented and found that Austad had not been denied trial by an impartial jury. The district judge noted that the state trial court had granted Austad individual voir dire examination and, on its own motion, had excused any juror who expressed reservations about the ability to accord the accused the benefit of the presumption of innocence. The voir dire proceedings took up some 2,000 pages of transcript over 21 trial days. Counsel and the court questioned 93 prospective jurors and every person finally seated as a trial juror or as an alternate was passed for cause. The district judge concluded that the procedures adopted by the trial judge were reasonably calculated to reveal any hostility or prejudice and that Austad had not shown that those factual determinations were not thoroughly supported by the record, and that his trial had been fair. A divided panel of this court affirmed the district court. See 739 F.2d 428 (9th Cir.1984). We granted the petition to rehear this case en banc, and withdrew the original opinion. See 743 F.2d 739 (9th Cir.1984).

We affirm.

Presumption of Correctness

As a threshold matter, we must determine whether the findings of the state court challenged in a habeas proceeding are factual in nature. If they are, 28 U.S.C. § 2254(d) requires a federal habeas court to accord such findings a presumption of correctness unless the petitioner establishes certain defects to overcome the presumption. 28 U.S.C. § 2254(d). In this appeal Austad challenges the findings of the state trial court that he was fit to stand trial and that the jurors who tried him were impartial and not biased by prejudicial pretrial publicity.

The Supreme Court has clearly established that the determination of a juror’s partiality or bias is a factual determination to which section 2254(d)’s presumption of correctness applies. “[I]t is plainly [an issue] of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, — U.S. -, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).

The determination of Austad’s fitness to stand trial is also a factual determination. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). Section 2254(d)’s presumption of correctness applies here as well.

Fitness to Stand Trial

Austad claimed that he was not mentally fit to stand trial because he sustained head injuries as a result of a high speed police chase which left him with residual brain damage. He claimed also to be suffering from amnesia and pain and having difficulty in communicating with his counsel. A comprehensive pretrial hearing inquiring into Austad’s mental condition was conducted by the state court. The court compiled a voluminous record of testimony including that of an internist, a neurologist, a clinical psychologist, and a psychiatrist. Austad, his mother, and one of his lawyers also testified. The state court found him fit to stand trial according to the federal standards set out in Dusky, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 and that finding was affirmed by the Montana Supreme Court in State v. Austad, 197 Mont. 70, —, 641 P.2d 1373, 1379 (1982).

Giving to the trial court’s findings of mental fitness the deference due under 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the district court found no denial of due process. Austad had not overcome the presumption of correctness of the state court’s determination.

Burden of Production of State Record

Austad seeks a new habeas corpus hearing because, although the district judge had before him for review the entire transcript of the voir dire proceedings, he did not have and did not review the 92 newspaper clippings and tapes or transcripts of radio and television newscasts which were submitted in the state proceedings as exhibits and which constitute the pretrial publicity of which Austad complains. Austad did not himself produce the exhibits, nor did he request the district court to order their production, or to expand the record to include them as is permitted under Rule 7 of the Rules Governing § 2254 Cases in the United States District Courts. Instead, he bases his claim of error upon our decision in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982) (per curiam), rev’d on other grounds, — U.S. -, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), which he construes as requiring automatic reversal and remand so that the district judge may examine the missing exhibits to determine the sufficiency of the trial court’s ruling concerning the obtaining of an impartial jury in the vicinage of Great Falls, Montana, at the time of trial. See also Bashor v. Risley, 730 F.2d 1228 (9th Cir.) cert. denied, — U.S. -, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). The state responds that it was the petitioner’s duty under 28 U.S.C. § 2254(d) to establish by convincing evidence that the factual determinations of the state court which he challenges were erroneous and to present any part of the record necessary to support his case.

We took this case en banc to reconsider whether a federal court, reviewing a habe-as corpus petition under 28 U.S.C. § 2254, is required sua sponte to call up for independent review specific portions of a state court record pertinent to the petitioner’s claim where the petitioner has neither produced them nor shown himself unable to do so. In particular, our question is whether the district court had a duty in Austad’s case to order production of the pretrial publicity exhibits from the state court where the petitioner did not claim an inability to produce them.

In Harris v. Pulley the petition alleged, as does Austad here, that pervasive pretrial publicity and the trial court’s denial of his motion for change of venue made a fair trial impossible and denied him due process. The district court on habeas corpus agreed with the Supreme Court’s conclusion that the pretrial publicity had not required a change of venue and had not resulted in denial of a fair trial. Harris had not produced any of the articles or broadcasts; nor, unlike Austad’s case, had the district court examined the transcript of the voir dire examination. The Harris court held that

Unless it is shown that the district court examined all relevant parts of the state court record, this court cannot affirm a district court’s judgment dismissing a ha-beas petition. (Citation omitted.)

692 F.2d at 1199-1200. The court stated that, when a petitioner alleges prejudicial pretrial publicity, “the relevant parts of the state court record include, at a minimum, copies of the newspaper articles and, if available, any transcripts of television and radio broadcasts.” Id. at 1200. Citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), the per curiam court stated flatly that “the district court should, if necessary, request and examine all relevant parts of the state court record to determine whether the record supports the state court’s findings.” Id. While acknowledging that the Supreme Court’s decision in Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), “requires a federal court in a habeas proceeding generally to accord a statutory presumption of correctness of state court findings,” the Harris court said, “but such a presumption is not required if the federal court concludes that findings are not fairly supported by the record.” 692 F.2d at 1200.

In Harris v. Pulley, this court announced a rule that unless the district court in fact examined the entire “relevant” record of state court proceedings, there could be no legal determination that the state court findings are supported by the record. The Harris court did not consider the statutory language of 28 U.S.C. § 2254 in thus mandating the district court’s duty. The opinion purports to follow prior law of this circuit, but the circuit precedents which it cited had also not considered the statutory language. See, e.g., Turner v. Chavez, 586 F.2d 111, 112 (9th Cir.1978) (per curiam); Griff v. Rhay, 455 F.2d 494, 495 (9th Cir.1972) (per curiam). Turner and Griff, as did Irvin v. Dowd, looked to Supreme Court opinions rendered under the original Habeas Corpus Act of 1867, and were decided before Congress enacted section 2254(d) for the purpose of alleviating a prime source of friction between state and federal courts.¹

No decision of the United States Supreme Court and only Harris v. Pulley in this circuit specifically addresses the issue before us. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), a leading case on the subject, holds that a district court has the power to compel production of the state court record and imposes an obligation to scrutinise it once it is received, but does not impose a duty to request the record sua sponte. Id. at 316, 83 S.Ct. at 758.

Attached to the petition in Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296 (1959) (per curiam), were a copy of the state supreme court opinion affirming his conviction and other documents, but not the state court record. Id. at 276, 79 S.Ct. at 321. The district court reviewed the included documents, concluded that the petitioner’s rights had not been violated, and dismissed the petition without a hearing. Id. at 277, 79 S.Ct. at 321. The court of appeals dismissed the appeal. Id. The Supreme Court vacated and remanded, however, because “the District Court erred in dismissing this petition without first satisfying itself, by an appropriate examination of the state court record, that this was a proper case for the dismissal of petitioner’s application without a hearing.” Id. (emphasis added). In its four-paragraph decision, however, the Court did not elaborate on the scope of an “appropriate” examination or on what constituted the district court’s “satisfaction” in a “proper case.” Thus, Jennings sheds no direct light on the issue before us.

The Court decided Jennings before the 1966 amendment to the habeas corpus statute. See Pub.L. No. 89-711, § 2, 80 Stat. 1105 (1966). Thus, to determine whether the district court must order the state court materials on its own motion, we must turn first to the statutory language. Section 2254 states in part:

(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court * * *, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—

[Listing 7 circumstances constituting procedural or substantive defects.]

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for [in section 2254(e)], and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record[.]

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, [unless one or more of the above 7 circumstances appear; or unless the court finds under subparagraph 8] that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

(e) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court’s determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason[J is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so* *.

(Emphasis supplied.)

We read the words of the statute as a clear statement that the applicant must produce “that part of the record pertinent” to his challenge of a state court’s factual determination or assert that, “because of indigency or other reason,” he is unable to do so. Only then is the district court required to direct the State to produce the record. 28 U.S.C. § 2254(e). If an applicant who is able fails to produce the record, then he fails to carry his burden of establishing that the state court’s factual determination is not fairly supported by the record. United States ex rel. Green v. Greer, 667 F.2d 585, 589-90 (7th Cir.1981); Thomas v. Gaffney, 540 F.2d 251, 254 (6th Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977).

Of course, the district courts have ample discretion to permit or on their own motion to require the production of relevant parts of the record or other materials pursuant to the habeas rules, particularly Rules 5, 6, 7 and 11;² and they often do so. But to compel district judges invariably to identify and order production of those portions of the state record which may or may not support a habeas petition would not only shift to the court a responsibility which the asking party should bear, but would saddle upon already overburdened district courts a record-searching load of enormous dimension. In sensible contrast, the statute directs the petitioner to produce the record basis of his complaint or simply to say why he cannot do so, before the court is charged with examining it.

As we have set forth above, we believe this position is consistent with Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Supreme Court stated that the 1966 amendments in section 2254(d) were intended by Congress as a limit on the jurisdiction of federal trial and appellate courts to review the factual determinations made by state courts. Id. at 547 n. 2, 101 S.Ct. at 769 n. 2. The Court said that Congress intended those limitations to alleviate friction between state and federal courts, id. at 550, 101 S.Ct. at 770, and that “it is the duty of [the Supreme Court] to see to it that the jurisdiction * *, which is defined and limited by statute, is not exceeded.” Id. at 548 n. 2, 101 S.Ct. at 769 n. 2, quoting Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).

Although the Court in Sumner v. Mata did not specifically address the allocation of the burden of production under section 2254(e), the rationale of decision supports a literal interpretation of that section. We conclude that an unambiguous interpretation of section 2254(e) justifies a literal application of the production requirements. Viewed in that light the district court was not obliged to obtain the publicity exhibits before ruling on Austad’s petition, where he neither presented the exhibits nor stated that he was unable to do so.

A contrary interpretation would also render superfluous some of the Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254. For example, Rule 4 states that a district judge shall summarily dismiss a petition if, upon examination, it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief. Id., Rule 4. Moreover, Rule 5 clearly states that, if the district court requires the state to answer the petition, it may order production of further portions of the transcript on its own motion or upon request of the petitioner. Id., Rule 5 (emphasis added.) See United States ex rel. Green v. Greer, 667 F.2d 585, 590 (7th Cir.1981). We have already made references to Rules 6, 7, and 11. The overall provisions of these rules are inconsistent with imposition of a duty upon the district court to obtain a record which the statute requires the petitioner to provide.³

Denial of Fair Trial

The district court did not err in concluding, on the record before it, that Austad was not denied a fair trial. Even though the publicity exhibits were not before the district court, the subject matter of the extensive voir dire questions clearly embraced all of the areas of concern to Austad, the state and the state court trial judge, all of which were carefully reviewed by the district court. Moreover, the extensive voir dire examination of each prospective juror out of the presence of other prospective jurors, the seating of jurors whom defense counsel had passed for cause, and the two years which passed between the events in controversy and the commencement of the trial all support the state court’s conclusion that a change of venue was not necessary to provide Austad with a fair trial. Austad presents nothing to overcome the presumption of correctness which attaches to a state court’s determination of factual issues mandated by 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Any contrary implications in Harris v. Pulley are disapproved. Accordingly, the district court’s ruling will be affirmed.

Conclusion

We have herein reconsidered our decision in Harris v. Pulley and have disapproved the holding of that case with respect to the responsibility for producing a state court record in habeas cases insofar as Harris held that the district court has a duty sua sponte to obtain and examine the trial record where the petitioner has not shown his inability to produce. The petitioner made no such showing in this case.⁴ Since, however, he may have relied on Harris’ precedent in failing to make production of the pretrial publicity exhibits, our affirmance of the district court’s denial of Austad’s petition ought not be deemed to constitute a bar, on grounds of abuse of the writ, to his presenting a new petition, should he be so advised, tendering the claim of adverse pretrial publicity in which he would be entitled to supplement the record with the exhibits, as provided by Title 28 U.S.C. § 2254. See Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963), codified in Rules Governing § 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254 (denial of pri- or application for federal habeas corpus controlling only if prior determination was on the merits); Morgan v. United States, 696 F.2d 1239, 1240 (9th Cir.1983) (same).

With such qualification, the judgment of the district court shall stand AFFIRMED.

1 . In Sumner v. Mata, 449 U.S. at 550, 101 S.Ct. at 771, the Court said:

But it is clear that in adopting the 1966 amendment, Congress in § 2254(d) intended not only to minimize the inevitable friction but also to establish that the findings made by the state-court system "shall be presumed to be correct” unless one of seven conditions set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court determination is not "fairly supported by the record,” "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”

(Emphasis in original.)

2 . Rule 5 addresses the power of the district court to order the respondent to provide additional portions of state court transcripts; Rule 6 provides for discovery; Rule 7 for expansion of the record to include additional materials; and Rule 11 provides that the Federal Rules of Civil Procedure may be applied to habeas petitions filed under the habeas rules. Rules Governing § 2254 Cases, 28 U.S.C.A. foil. § 2254.

3 . Rule 5 makes clear that the burden of producing the record does not lie heavily upon petitioner's shoulders. It provides in relevant part that

The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished * *.

Rules Governing § 2254 Cases, 28 U.S.C.A. foil. § 2254.

The Advisory Committee Notes state that Rule 5’s requirement that the answer state what transcripts are available "will serve to inform the court and petitioners as to what factual allegations can be checked against the record.” Id., Advisory Committee Note to Rule 5 (emphasis supplied). Petitioner may then request additional portions of the transcript if respondent has not provided the portions he deems relevant. Id.

4 . The concern expressed by the concurrence, and the suggestion that the rule should be different for pro se litigants, are misplaced. Section 2254, as we construe it, does not impermis-sibly burden applicants, whether with or without counsel. The suggested distinction between pro se and represented petitioners ignores the clear statutory language which does not distinguish between the two and which contemplates that many petitioners will be, at least initially, without counsel. We do not view the habeas provisions or rules as imposing separate requirements for pro se and represented applicants. That is why the statute provides in very plain language that if a petitioner is indigent (personally without counsel) or for any "other" reason unable to produce, the court will see to production. But obviously, somehow that inability must be stated. And the statute places responsibility for production on the petitioner both to identify, and to produce what he wants unless he is unable to do so. 28 U.S.C. § 2254(e).

Inability may be established by the mere statement. But the statute does not require the court initially to call up an entire or partial state record until some reason for doing so is brought to its attention. That means that the one seeking aid must inform the court that he wants help in proving his claim. Indeed, the habeas corpus form of petition requires the petitioner to state his claim with particularity. See Model Form for Use in Applications for Habeas Corpus under 28 U.S.C. 2254, 28 U.S.C.A. foll. § 2254. This is not the trial itself but a collateral attack upon a standing conviction. It is a safe assumption that the petitioner will generally know and can broadly identify the basis of his complaint since he was a party to the state proceeding, was present at trial, and, in most instances, raised the same objection to the state courts along the way towards exhaustion of his state remedies.

Moreover, the trial judge has ample discretion to require, once informed, that a sufficient portion of the record be produced so that the court can make an intelligent decision. This was true in the case at bar: the trial judge read the voir dire transcript although not the exhibits. A review of the voir dire questioning and of the facts of the case convinced him that nothing had been identified in the exhibits which was not covered by the voir dire. There is no reason to assume that in reviewing the record trial judges will not have the competence to know or the will to act if the petition or the circumstances show that a part of the record which is missing is obviously needed to determine whether the petitioner’s constitutional rights were violated.