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 witnesses. As a sanction for Fendler’s wilful disobedience, the Arizona court excluded the testimony of the unnamed defense witnesses.

Fendler has asked this court to hold that a state’s rule which excludes the testimony of a defense witness for wilful noncompliance with reciprocal discovery rules violates an accused person’s sixth amendment right to present a defense. In their petition for a rehearing, appellees also urge us to “resolve this constitutional issue.”

The constitutionality of witness preclusion is an open question in this circuit. There are sound reasons for refusing to decide a constitutional question. None of these are present in this matter.

In United States v. Barron, 575 F.2d 752 (9th Cir.1978), we held that the trial court had not abused its discretion in excluding the testimony of defense witness. Barron did not argue that this sanction was unconstitutional. For that reason we noted: “Because the parties did not explore the possible Sixth Amendment issues raised by the sanction, we have limited our analysis solely to a determination of whether the district court abused its discretion in the circumstances of this case.” Barron, 575 F.2d at 757 n. 5.

In Robbins v. Cardwell, 618 F.2d 581 (9th Cir.1980), we affirmed the denial of habeas corpus relief on a case which also involved an order of an Arizona state court that prohibited a defense witness from testifying because the defendant failed to disclose the names of witnesses. Before this court, the petitioner in Robbins argued that the exclusion order offended the sixth amendment. We refused to consider this issue. We explained our inaction as follows: “We reject the argument that this issue is presented for our determination on the record in this case.” Robbins, 618 F.2d at 582 .

Thus, in Barron , we did not reach the constitutional question because it was not raised. In Robbins , we abstained because, while the issue was raised on appeal, we concluded that the record did not permit us to act on the constitutional question. In the matter before us, we have been asked by both sides to decide the constitutional question presented by the preclusion sanction, and a proper record was made below to permit us to decide this controversy. Accordingly, I cannot come up with a compelling reason why we should place the burden of deciding this important constitutional question on other appellate shoulders. The majority has offered no explanation for its reticence. The majority is content, instead, to present us with elaborate dictum summarizing the forthright positions taken by other courts faced with this same constitutional question and marshaling the arguments which favor the rule adopted by the Fifth Circuit in United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981).

*1193 A court faced with the constitutional issue presented to us by these facts has at least three choices. It can decide:

One. The sixth amendment does not bar the exclusion of a witness’ testimony where there has been a deliberate violation of a discovery rule.

Two. The sanction of witness preclusion is permissible under the sixth amendment if the trial court has balanced the competing interests.

Three. The sixth amendment forbids the exclusion of evidence as a sanction to enforce discovery rules or orders.

The majority tells us that “[t]his court has yet to decide the question of witness preclusion as a sanction for failure to obey discovery rules.” (at 1187). Later, the court states: “In this case, it is also unnecessary to answer the constitutional question fully” (at 1188).

The majority, without discussing the merits of the first alternative, i.e., witness preclusion is permissible as a sanction without balancing the competing interests, proceeds to “narrow the question we leave open” (at 1188) to a choice between the second and third alternatives. The opinion then states: “We need not now choose between these two alternatives because we find that under either of these approaches, the Arizona state courts erred in excluding the testimony of an important defense witness” (at 1188). In spite of this claimed neutrality, the majority spends considerable time advocating the merits of the third alternative, (at 1185-1187).

Thereafter, while the court insists it has decided no constitutional question, it, nevertheless, proceeds to apply the balancing test to this case and finds error which “affected substantial constitutional rights” (at 1190).

I would reject the rule adopted by the Fifth Circuit in Davis which forbids the exclusion of a witness’ testimony as a sanction for a failure to comply with a discovery rule. I would instead adopt a balancing test and hold that the exclusion of the testimony of a witness as a sanction for the violation of a discovery rule, is not violative of the sixth amendment where the trial court has closely examined the competing interests. See State v. Smith, 123 Ariz. 243 , 599 P.2d 199 (1979); State v. Mai, 294 Or. 269 , 656 P.2d 315 (1982); State v. Roberts, 226 Kan. 740 , 602 P.2d 1355 (1979); State v. Smith, 88 N.M. 541 , 543 P.2d 834 (1975); State ex rel. Simos v. Burke, 41 Wis.2d 129 , 163 N.W.2d 177 (1968). The rule adopted by the Fifth Circuit is inconsistent with the view expressed by the Supreme Court in Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973). In Chambers , the Supreme Court stated:

The state has a “legitimate interest” in enforceable reciprocal discovery rules. In Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), the Supreme Court noted: “[T]he State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” 399 U.S. at 81 , 90 S.Ct. at 1896 .

We applied the balancing test in reviewing the exclusion of an alibi interest in United States v. Barron, 575 F.2d 752 (9th Cir.1978). There, we said:

*1194 The analysis we employed in Barron fits squarely within the principles expressed in Chambers v. Mississippi concerning the balancing of competing interests.

It should be noted that the Fifth Circuit in Davis failed to cite or discuss the Supreme Court’s earlier decision in Chambers v. Mississippi. This may explain its failure to consider adoption of the balancing test.

II.

Fact Finding in Excess of Jurisdiction.

In this matter, the Arizona state court balanced the competing interests of the parties and found that exclusion of the witness’ testimony was the only effective remedy under all the circumstances of this case. These factual findings were reviewed by the Court of Appeals for Arizona in State v. Fendler, 127 Ariz. 464 , 622 P.2d 23 (App. 1980). The Court of Appeals of Arizona found that “the trial court acted properly in precluding the witness’ testimony.” 622 P.2d at 42 .

No contention has been made that the fact finding procedure employed by the Arizona courts was not adequate to afford a full and fair hearing. Fendler failed to meet his burden of persuading the district court by convincing evidence that the factual determinations of the Arizona courts were erroneous. 28 U.S.C. § 2254 (d)(8).

In the face of the factual findings of the Arizona courts and the failure of the petitioner to meet his burden in the federal district court, my colleagues have proceeded to make contrary findings of fact in spite of the fact that they admit they have not examined the transcript of the state court proceedings (at 1182-1183).

In Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981), the Supreme Court vacated a judgment of this court because this court exceeded its limited review under 28 U.S.C. § 2254 by making findings which were “considerably at odds with the findings made by the California Court of Appeal.” 449 U.S. at 543 , 101 S.Ct. at 767 . In Sumner v. Mata, the court held that we had failed to apply the “presumption of correctness” to factual determinations made by the state courts as compelled by § 2254(d). The Court noted that this court “reached a conclusion which was in conflict with the conclusion reached by every other state and federal judge after reviewing the exact same record.” 449 U.S. 548 -549, 101 S.Ct. at 769-70 . The majority protests at great length in footnote 21 that it has not violated Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981) by engaging in impermissible fact finding. Yet, in spite of this disclaimer, the court’s analysis begins with the factual question “how important was the witness [Schaffer]” at 1188. The court then proceeds to weigh Schaffer’s testimony presented before the magistrate to bolster its legal conclusion that constitutional error has occurred. Later, the majority reaches the factual conclusion that “[a]ny state interest in preparing for cross examination or rebuttal of his testimony could have been accommodated by a brief continuance.” At 1189-1190. There is nothing in the record in the state proceedings or the federal habeas corpus hearing which would support this purely factual speculation.

The majority has also ignored the requirement of § 2254(d) that the applicant who challenges the sufficiency of the evidence adduced in the state court proceedings “shall produce that part of the record pertinent to a determination of the sufficiency of the evidence.” Here, the majority has determined, in the absence of any record, that the prosecution’s interests would have been accommodated by a brief continuance, without considering the Arizona Court of Appeals discussion of the impact on the prosecution which would have flowed from the “tardiness of appellant’s claim.” 622 P.2d at 42 .

This court has acted in excess of its limited jurisdiction under § 2254(d) in making factual findings contrary to those made by the Arizona courts without even reading the record made before that court to determine its fairness and adequacy.

*1195 CONCLUSION.

I would affirm the district court’s denial of Fendler’s habeas corpus petition. The Court of Appeals of Arizona has found that Fendler’s rights to present a defense were properly balanced with the state’s legitimate interest in enforcing reciprocal discovery. That finding is presumed correct under Sumner v. Mata and § 2254(d). The majority has not only declined to decide the constitutional issue it was asked to address, but it has also ignored completely its responsibility under Sumner v. Mata and § 2254(d) to refrain from making findings contrary to those made by the Arizona courts.

The majority explained its failure to choose between the balancing test suggested by the Supreme Court in Chambers v. Mississippi and the contrary rule applied in the Fifth Circuit because “under either of these approaches, the Arizona state courts erred.” This conclusion is simply wrong under Sumner v. Mata. This court is bound by the Arizona courts’ findings, in the absence of convincing evidence, presented to the district court, that the factual determinations of the Arizona courts were erroneous. § 2254(d)(8). The district court was not persuaded “by convincing evidence” that the factual determinations were erroneous. The majority, without an evidentia-ry hearing nor a review of the state court proceedings, has determined that these findings were erroneous.

Under the principles discussed in Sumner v. Mata and Chambers v. Mississippi, and on the record before us, this court was required to conclude that no constitutional deprivation occurred in the Arizona state court proceedings.