Gene Andrew Austad v. Henry Risley and Thomas Sellers, and Attorney General Mike Greely, Additional And

I respectfully dissent.

The majority has concluded that a federal court may deny a state prisoner’s peti *1356 tion for a writ of habeas corpus alleging a denial of his federal constitutional right to a fair trial because of prejudicial pretrial newspaper articles and radio and television newscasts without making an independent examination of the exhibits introduced in the state court to establish the prejudicial nature of the media coverage. In so doing, the majority rejects the law of this circuit most recently expressed in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), rev’d on other grounds, — U.S. -, 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984) and concludes that it is no longer compelled to follow the decisions of the United States Supreme Court in Jennings v. Ragan, 358 U.S. 276 , 79 S.Ct. 321 , 3 L.Ed.2d 296 (1959) (per curiam) and Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963).

The majority tells us it is free to disregard these decisions, in spite of the fact that they were decided on due process and fair trial grounds, because Congress has amended the Habeas Corpus Statute. I fail to see how Congress can repeal the Fifth and Sixth Amendments by simply…

Gene Austad was convicted by a jury in a Montana state court of deliberate homicide, robbery, sexual intercourse without consent and aggravated burglary. He was sentenced to life imprisonment on the conviction of deliberate homicide, and to consecutive forty year terms on each of the other three charges. After exhausting his state remedies, Austad filed a petition for writ of habeas corpus in the district court claiming that he had been denied a fair trial because the great volume of pretrial publicity created an environment of hostility which made it impossible to obtain an unbiased jury in the area of Great Falls, Montana. The petition alleged a number of constitutional deficiencies which the district court reviewed, all of which were denied. Austad has appealed only the order denying his claims involving the change of venue and the ruling that he was mentally fit to stand trial.

Specifically Austad argues that the district court’s findings that he was not denied a fair trial due to prejudicial publicity are insufficient because the court did not make an independent examination of the *1350 exhibits in the state court record which included the publicity.

The crimes charged all…

Austad was represented by counsel. We do not have before us a case involving a pro se litigant, which might require that the district court construe section 2254(d) less strictly against the petitioner and further consider possible constitutional violations as suggested by Judge Alarcon. Cf. Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972) (holding pro se plaintiff to less stringent standards of pleading than plaintiff represented by counsel); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.) (Haines rule applies to pro se habeas petitions), cert. denied, — U.S. -, 105 S.Ct. 137 , 83 L.Ed.2d 77 (1984). As illustrated by the array of hypothetical considerations ruled on by the majority in footnote 4, appropriate judicial restraint dictates that we reserve deciding the application of 28 U.S.C. § 2254 (d) in cases involving pro se litigants until presented with a specific controversy. With this limitation I concur in Judge Poole’s opinion.

761 F.2d 1348 Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellers, Respondents-Appellees, and Attorney General Mike Greely, Additional Respondent and Appellee. No. 83-3933. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 13, 1984. Decided May 23, 1985. Curtis C. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for petitioner-appellant. Margaret M. Joyce Johnson, Asst. Atty. Gen., Helena, Mont., for respondents-appellees. Appeal from the Judgment of the United States District Court for the District of Montana. Before BROWNING, Chief Judge, WALLACE, ANDERSON, HUG, TANG, SKOPIL, ALARCON, POOLE, NELSON, BOOCHEVER, and BEEZER, Circuit Judges. POOLE, Circuit Judge. 1 Gene Austad was convicted by a jury in a Montana state court of deliberate homicide, robbery, sexual intercourse without consent and aggravated burglary. He was sentenced to life imprisonment on the conviction of deliberate homicide, and to consecutive forty year terms on each of the other three charges. After exhausting his state remedies, Austad filed a petition for writ of habeas corpus in the district court claiming that he had been denied a fair…