Robert Alton Harris v. R. Pulley, Warden of the California State Prison at San Quentin

Robert Harris, a California state prisoner who was sentenced to death for the murder of two teenage boys, appeals from the district court’s denial of his habeas corpus petition brought under 28 U.S.C. § 2254 . Because the California Supreme Court did not undertake a proportionality review of the application of the death penalty in this case, we vacate the district court’s denial of the petition and instruct the district court to grant the petition relieving petitioner from his sentence of death unless the California Supreme Court undertakes, within a reasonable time not to exceed 120 days from the date this order is filed, the proportionality review announced in People v. Frierson, 25 Cal.3d 142, 183 , 158 Cal.Rptr. 281 , 599 P.2d 587 (1979) (plurality opinion), and People v. Jackson, 28 Cal.3d 264, 312 , 168 Cal.Rptr. 603 , 618 P.2d 149 (1981). If it becomes necessary, the district court should examine the California Supreme Court’s proportionality decision to make certain that it is consistent with Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976), and Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). To facilitate the district…

concurring:

I concur in the judgment and in all of the court’s opinion except Section I.C., which holds the California statute constitutional despite the absence of a requirement of a written statement by the jury of the reasons for its imposition of the death penalty. On that point, I respectfully disagree.

The purpose of requiring a sentencing jury to provide written findings in support of a death sentence is to enable appellate courts to ensure that the jury’s discretion was properly exercised and that the sentence was not arbitrary or capricious. Gregg v. Georgia, 428 U.S. 153, 195 , 96 S.Ct. 2909, 2935 , 49 L.Ed.2d 859 (1976) (plurality opinion). In the absence of such written findings, the reviewing court can only assume that the jury acted within its instructions. While that assumption is commonly employed in reviewing general verdicts of guilt, it is not a permissible basis for approval of a death sentence.

In Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976), the Supreme Court struck down a statutory scheme under which five specific types of murder carried a mandatory death sentence. The statute also.required that the jury in each such case be…

692 F.2d 1189 Robert Alton HARRIS, Petitioner, v. R. PULLEY, Warden of the California State Prison at San Quentin, Respondent. No. 82-5246. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1982. Decided Sept. 16, 1982. As Amended on Denial of Rehearing and Rehearing En Banc Nov. 15, 1982. Michael J. McCabe, Savitz & McCabe, San Diego, Cal., for petitioner. Charles M. Sevilla, Public Defender, San Diego, Cal., amicus curiae. Michael D. Wellington, Deputy Atty. Gen., San Diego, Cal., for respondent. Appeal from the United States District Court for the Southern District of California. Before CHOY, ANDERSON and CANBY, Circuit Judges. PER CURIAM: 1 Robert Harris, a California state prisoner who was sentenced to death for the murder of two teenage boys, appeals from the district court's denial of his habeas corpus petition brought under 28 U.S.C. Sec. 2254 . Because the California Supreme Court did not undertake a proportionality review of the application of the death penalty in this case, we vacate the district court's denial of the petition and instruct the district court to grant the petition relieving petitioner from his sentence of death unless the…