Howard L. Bashor v. Henry Risley, Warden of Montana State Prison and Michael Greely, Attorney General for the State of Montana

730 F.2d 1228 Howard L. BASHOR, Petitioner-Appellant, v. Henry RISLEY, Warden of Montana State Prison; and Michael Greely, Attorney General for the State of Montana, Respondents-Appellees. No. 82-3293. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 9, 1983. Decided Feb. 7, 1984. Barbara Harbinson, Oakland, Cal., for petitioner-appellant. Dorothy McCarter, Helena, Mont., for respondents-appellees. Appeal from the United States District Court for the District of Montana. Before FLETCHER and ALARCON, Circuit Judges, and WATERS * , District Judge. ALARCON, Circuit Judge: 1 Appellant Howard L. Bashor (Bashor), a Montana prisoner, petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254 . The district court, 539 F.Supp. 259 , denied the petition. Bashor appeals. We affirm. FACTS 2 Appellant Bashor was convicted of deliberate homicide following a jury trial in a Montana state court. It is undisputed that James Hurley died of a gunshot wound inflicted by the appellant on December 3, 1977 in Kevin, Montana. There are differing versions of the events that led to Hurley's death. 3 The state presented evidence at trial that on…

Appellant Howard L. Bashor (Bashor), a Montana prisoner, petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254 . The district court, 539 F.Supp. 259 , denied the petition. Bashor appeals. We affirm.

FACTS

Appellant Bashor was convicted of deliberate homicide following a jury trial in a Montana state court. It is undisputed that James Hurley died of a gunshot wound inflicted by the appellant on December 3, 1977 in Kevin, Montana. There are differing versions of the events that led to Hurley’s death.

The state presented evidence at trial that on the evening of December 2, 1977, Hurley, Marian Irgens, Duane Enneberg, and Jeanette Frost visited Bert’s Bar in Kevin. During the evening, Irgens twice noticed Bashor’s car being driven down the road adjacent to the bar. At approximately 1:30 a.m. on the morning of December 3, the group decided to leave the bar. As they *1232 left, Bashor’s vehicle was observed parked a short distance away from the bar with its headlights on. Bashor’s friend, William Schaeffer, was standing in front of the vehicle. Schaeffer shouted at the group. Hurley and Enneberg approached Bashor’s vehicle. Schaeffer confronted…

dissenting:

I dissent from part 3 of the majority’s opinion and from that portion of part 1 holding that no facts were pleaded from which it could be inferred that petitioner was tried before a hostile jury or in a hostile community. I would hold that the trial court’s refusal to grant a change of venue denied Bashor due process of law. See Rideau v. Louisiana, 373 U.S. 723, 726 , 83 S.Ct. 1417, 1419 , 10 L.Ed.2d 663 (1963). The due process clause and the sixth amendment entitle criminal defendants to an impartial and disinterested jury. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.) cert. denied, 434 U.S. 818 , 98 S.Ct. 58 , 54 L.Ed.2d 74 (1977); see Murphy v. Florida, 421 U.S. 794, 797 , 95 S.Ct. 2031, 2034 , 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961). The majority recognizes that due process requires a change of venue when the degree of prejudice in the community makes it impossible to impanel an impartial jury. The majority concludes, however, that the voir dire proceedings were constitutionally adequate, that an impartial jury was, in fact, selected and that, therefore, Bashor received a fair trial. On the…