Robert Harold FENDLER, Plaintiff-Appellant, v. Robert GOLDSMITH, and the Attorney General of the State of Arizona, Defendants-Appellees

728 F.2d 1181 14 Fed. R. Evid. Serv. 781 , 15 Fed. R. Evid. Serv. 119 Robert Harold FENDLER, Plaintiff-Appellant, v. Robert GOLDSMITH, and the Attorney General of the State of Arizona, Defendants-Appellees. No. 83-1501. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 13, 1983. Decided Oct. 14, 1983. As Amended March 21, 1984. Robert H. Fendler, pro per. Linda Akers, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellees. Appeal from the United States District Court for the District of Arizona. Before ALARCON, CANBY, and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 While on trial in Arizona state court, Robert Harold Fendler did not fully comply with the Arizona state criminal discovery rules. These rules permit extensive discovery in criminal cases, by both prosecution and defense, and provide sanctions for noncompliance. Because Fendler did not provide the prosecution with the addresses of two potential witnesses, as required by these rules, the state trial court prohibited those witnesses from testifying. On appeal from the district court's denial of his habeas corpus petition, Fendler argues, principally, that the exclusion of the two…

dissenting.

I respectfully dissent.

When the court’s opinion was originally filed in this matter, I unqualifiedly con *1192 curred. After reading the petition for a rehearing, I became concerned that I may have erred. I then suggested that we should request a response to the petition for a rehearing. My colleagues disagreed.

I voted for a rehearing in this matter because I am now convinced that the opinion of the court is fatally flawed and that I was wrong to join in their number.

I now dissent on two grounds:

One. The majority has failed to perform its appellate function by declining to decide ripe federal constitutional questions properly raised on a petition for habeas corpus.

Two. The majority has instead, in excess of its jurisdiction, attempted to perform the duties of a trial court by making findings of fact contrary to those of the Arizona courts and in direct conflict with 28 U.S.C. § 2254 (d) and Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981).

I.

The Unanswered Constitutional Question.

The issue on this appeal is quite clear. Fendler did not comply with Arizona’s reciprocal discovery rules which require disclosing the names of defense…

While on trial in Arizona state court, Robert Harold Fendler did not fully comply with the Arizona state criminal discovery rules. These rules permit extensive discovery in criminal cases, by both prosecution and defense, and provide sanctions for noncompliance. Because Fendler did not provide the prosecution with the addresses of two potential witnesses, as required by these rules, the state trial court prohibited those witnesses from testifying. On appeal from the district court’s denial of his habeas corpus petition, Fendler argues, principally, that the exclusion of the two witnesses violated his sixth amendment right to present a defense. We agree with respect to one of the witnesses. However, since a transcript of the state court trial was not introduced in the habeas corpus proceeding, *1183 we are unable to determine whether the error was harmless. Accordingly we remand the matter to the district court for a further hearing.

BACKGROUND

In March 1977, Fendler, along with two other defendants, was charged in a 17 count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. One of the charges…