Duncan Peder McKenzie Jr. v. Henry Risley

Appellant Duncan Peder McKenzie, Jr., convicted of murder and sentenced to death by the State of Montana, appeals from the district court’s dismissal of his petition for writ of habeas corpus. A panel of this court affirmed the dismissal in McKenzie v. Risley, 801 F.2d 1519 (9th Cir.1986), but McKenzie’s suggestion for rehearing en banc was subsequently granted. 815 F.2d 1323 (9th Cir.1987). We now affirm.

I. BACKGROUND

The Montana Supreme Court described the facts as follows:

State v. McKenzie, 186 Mont. 481 , 608 P.2d 428, 434-36 (1980) (McKenzie III).

The panel opinion summarized the extensive procedural history of the case:

801 F.2d at 1522-23 .

The panel rejected all of McKenzie’s arguments and affirmed. McKenzie petitioned for rehearing of three questions resolved by the panel: (1) whether the Sand-strom errors in the jury instructions were harmless; (2) whether the trial judge’s decision to sentence McKenzie to death after he had approved a plea agreement calling for a prison sentence violated United States v. Jackson, 390 U.S. 570 , 88 S.Ct. 1209 , 20 L.Ed.2d 138 (1968); and (3) whether the statutory scheme under which *1529 McKenzie was sentenced was…

dissenting:

The thrust of the majority’s opinion is (1) to stress the hideousness of the crimes; (2) *1544 to stress the few instructions that standing alone would withstand constitutional muster; and (3) to weave a tortured path through the instructions that the jury might have followed to find a verdict untainted by the numerous instructions 1 that concededly placed an unconstitutional burden of proof on the defendant and served to confuse rather than instruct the jury.

The dissent disagrees on two principal bases. First, the instructions were so flawed that the defendant could not have had a fair trial. Harmless error analysis is simply inappropriate in such a case. The instructions in this case are so bad that even the prosecution at trial objected to their use and requested that alternatives be read in their place. They are instructions that the counsel for the State at the en banc oral argument admitted were in some respects the worst he had ever seen. Justice Shea of the Montana Supreme Court called the instructions “the most confusing and inconsistent set of instructions I have ever seen.” McKenzie v. Osborne, 195 Mont. 56 , 640 P.2d 368, 411 (1981) (Shea, J.,…

842 F.2d 1525 Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Henry RISLEY, et al., Respondents-Appellees. No. 85-4156. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Aug. 12, 1987. Decided March 10, 1988. Timothy K. Ford, Seattle, Wash., for petitioner-appellant. Chris D. Tweeten, Asst. Atty. Gen., Helena, Mont., for respondents-appellees. Appeal from the United States District Court for the District of Montana. Before WALLACE, FLETCHER, FARRIS, PREGERSON, ALARCON, CANBY, NORRIS, WIGGINS, BRUNETTI, KOZINSKI and O'SCANNLAIN, Circuit Judges. OPINION KOZINSKI, Circuit Judge: 1 Appellant Duncan Peder McKenzie, Jr., convicted of murder and sentenced to death by the State of Montana, appeals from the district court's dismissal of his petition for writ of habeas corpus. A panel of this court affirmed the dismissal in McKenzie v. Risley, 801 F.2d 1519 (9th Cir.1986), but McKenzie's suggestion for rehearing en banc was subsequently granted. 815 F.2d 1323 (9th Cir.1987). We now affirm. I. BACKGROUND 2 The Montana Supreme Court described the facts as follows: 3 The victim in this case was Lana Harding, a 23 year old rural school teacher in Pondera County,…