Dewey E. Coleman v. Henry Risley, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana

dissenting:

TABLE OF CONTENTS

Page

I.INTRODUCTION ..466

II.THE EQUAL PROTECTION CLAIM. 467

A. Introduction. 467

B. Law.468

1. General Equal Protection Principles .468

2. Equal Protection Challenges of Plea Bargaining _470

C. Facts.472

1. The Evidence Available.472

2. The Plea Bargaining Hearings .474

D. Discussion.477

E. Evidentiary Hearing on the Equal Protection Claim.482

F. Conclusion.484

III.THE CAPITAL SENTENCING PROCEEDINGS .484

A. Introduction.485

B. Facts.486

1. Coleman’s First Sentencing.486

2. The 1977 Death Penalty Statute.486

3. The Resentencing of Coleman.488

C. Constitutional Deficiencies of Coleman’s Sentencing.491

1. The Right to Present Argument at the Time of Sentencing .491

2. Mitigating Circumstances.496

a. Character and Background as Mitigating Factors 496

(i) General Rule.496

(ii) Specific Mitigating Circumstances in Coleman’s Case.497

(iii) The Trial Court’s Failure to Consider Coleman’s Character and Background.498

(iv) The Errors in the Majority’s Analysis.. 499

(v) Even were it Only “Unclear Whether the Trial Court Considered the Mitigating Factors, Reversal Would be Required.501

(vi) The Constitution Requires the Court to…

Dewey E. Coleman, a Montana state prisoner who has been sentenced to death, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We affirm.

I. FACTS

On July 4, 1974, Peggy Lee Harstad, twenty-one years old, disappeared while driving alone from Harlowton to Rosebud, Montana. The next day her car was found within a few miles of her home, near Rosebud. Several days later, a ranch hand discovered her purse inside a culvert about ten miles from her abandoned car. In the investigation which followed, an elderly couple reported that on the evening Har-stad disappeared they had seen a black man and a white man hitchhiking between Roundup and Forsyth, Montana at about the time Harstad had been driving between those towns. The two men were identified as Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man.

On July 9, 1974, representatives of the Rosebud County sheriffs office questioned Nank. He admitted being in the area where Harstad had last been seen alive, and hitchhiking through Forsyth, Montana on the evening of July 4th. In an interview with FBI agents about one month later, Nank also admitted seeing the…

839 F.2d 434 Dewey E. COLEMAN, Petitioner-Appellant, v. Henry RISLEY, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana, Respondents-Appellees. No. 85-4242. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1986. Decided Jan. 19, 1988. Henry T. Greely, Stanford Law School, Stanford, Cal., for petitioner-appellant. James M. Scheier, Asst. Atty. Gen., State of Mont., Helena, Mont., for respondents-appellees. Appeal from the United States District Court for the District of Montana. Before ALARCON, REINHARDT and THOMPSON, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 Dewey E. Coleman, a Montana state prisoner who has been sentenced to death, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 . We affirm. I. FACTS 2 On July 4, 1974, Peggy Lee Harstad, twenty-one years old, disappeared while driving alone from Harlowton to Rosebud, Montana. The next day her car was found within a few miles of her home, near Rosebud. Several days later, a ranch hand discovered her purse inside a culvert about ten miles from her abandoned car. In the investigation which…