Frank A. Eyman, Superintendent, Arizona State Penitentiary v. Robert Alford

448 F.2d 306 Frank A. EYMAN, Superintendent, Arizona State Penitentiary, Appellant, v. Robert ALFORD, Appellee. No. 22274. United States Court of Appeals Ninth Circuit. Feb. 24, 1969. Rehearing Denied Sept. 28, 1971. Jerry L. Smith (argued), County Atty., Flagstaff, Ariz., Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellant. W. Edward Morgan (argued), Tucson, Ariz., John H. Grace (argued), Flagstaff, Ariz., for appellee. Before JOHNSEN, * MERRILL and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge. This is an appeal from an order of the district court, after an evidentiary hearing, granting a writ of habeas corpus on petition of appellee, under sentence of death for the crime of murder. The district court stayed its order pending disposition of this appeal. We reverse. Appellee exhausted his state remedies by appeal to the Arizona Supreme Court (State v. Alford, 98 Ariz. 124 , 402 P.2d 551 ), denied June 3, 1965 and Motion for Rehearing (State v. Alford, 98 Ariz. 249 , 403 P.2d 806 ) denied June 29, 1965. Application for Writ of Certiorari to the Supreme Court of the United States was made June 28, 1965, and on January 24, 1966,…

This is an appeal from an order of the district court, after an evidentiary hearing, granting a writ of habeas corpus on petition of appellee, under sentence of death for the crime of murder. The district court stayed its order pending disposition of this appeal. We reverse.

Appellee exhausted his state remedies by appeal to the Arizona Supreme Court (State v. Alford, 98 Ariz. 124 , 402 P.2d 551 ), denied June 3, 1965 and Motion for Rehearing (State v. Alford, 98 Ariz. 249 , 403 P.2d 806 ) denied June 29, 1965.

Application for Writ of Certiorari to the Supreme Court of the United States was made June 2S, 1965, and on January 24,1966, the United States Supreme Court entered the following order (Alford v. Arizona, 382 U.S. 1020 , 86 S.Ct. 625 , 15 L.Ed.2d 535 ):

Amended Application for Writ of Certiorari was submitted to the Supreme Court of the United States on March 14, 1966, and on June 20, 1966, the Court entered the following order ( 384 U.S. 1028 , 86 S.Ct. 1937 , 16 L.Ed.2d 1047 ):

The following issues were set forth in the district court’s memorandum of decision and passed upon by that court.

1. Was the failure to give defendant counsel at the time of his original…

(dissenting) :

I dissent and would affirm the judgment of the District Court. My difference with the majority relates to part V of its opinion. In other respects I concur.

In my judgment it was a denial of due process in violation of the Fourteenth Amendment for the sentencing judge, in imposing the death penalty, to resolve crucial factual disputes on the basis of statements made to him by persons not under oath and not subject to confrontation of petitioner or to his cross-examination.

In two respects I distinguish other types of cases, reserving judgment as to the rule that should today apply in such cases.

1. Sentences Other Than Death

I readily accept the fact, emphasized by the majority, that the sentencing function ordinarily is quite different in its nature from that of the ascertainment of guilt. Further, I concede that these differences may well justify application of a different standard in the determination of what constitutes due process.

The legislatively fixed and mandatory sentence is becoming a rarity. Sentencing today (together with the modifications permitted by probation and parole proceedings) involves more than a ceremonial pronouncement of what the…