dissenting

I respectfully dissent for two reasons.

First, the majority holds that “before the district court can determine whether the constitutional error in Ruff’s trial was harmless, it must review the entire state court record” (emphasis added). I do not agree that reversal is required here simply because the district court reviewed only the “relevant” evidence and not the “entire record.”

The majority opinion suggests that all habeas cases raising a constitutional claim subject to harmless error analysis must be reversed if the “entire record” has not been reviewed by the district court. For this sweeping proposition, the majority cites United States v. Hastings, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986); and Herd v. Kincheloe, 800 F.2d 1526 (9th Cir.1986). I believe that this proposition is unsupported by prevailing precedent and is unlikely to prove well-conceived.

While both Hastings and Chapman addressed an application of the harmless error doctrine, neither case involved review of an erroneous Sandstrom instruction. A Sandstrom instruction necessarily involves the element of intent. For this reason, review of a decision involving Sandstrom error, in the absence of other claims, may reasonably be limited to those portions of the record which pertain to intent.

In determining whether a Sandstrom instruction is harmless, the Supreme Court said in Rose , that “the inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Rose, 106 S.Ct. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73 , *1244 97 n. 5, 103 S.Ct. 969 , 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)).

The Supreme Court did not, in Rose , establish the rule that Sandstrom error necessitates review of the entire record. Nor did it establish the general rule, advocated by the majority, that “a constitutional error can only be found harmless after review of the entire record.” (p. 4168)

While review of the entire record is obviously preferred and will be necessary in most habeas cases, I do not believe that failure to review the entire record in this habeas case, involving a Sandstrom error and failure to dispute intent at trial, requires reversal.

When the district court has before it a sufficiently comprehensive portion of the relevant record to establish beyond a reasonable doubt that the constitutional error was harmless, and the error relates to an element conceded by the petitioner at trial, reversal on the ground that a reviewing court “must review the entire record” is duplicative and unnecessary. This requirement is likely to become an excuse for compelling district courts to habitually re consider habeas petitions which have already been fairly reviewed and denied on the basis of all relevant evidence in the case.

While we stated in Herd v. Kincheloe, 800 F.2d 1526 (9th Cir.1986), that, “generally, a district court must review the entire record, and assess the weight of the evidence to determine [if the error alleged is harmless],” that statement should be read in context. The question presented in Herd was not whether the entire record or, alternatively, relevant portions of that record ought to be examined before the reviewing court could fairly conclude “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967). The question presented in Herd was whether an erroneous Sandstrom instruction was harmless in light of eyewitness testimony that the defendant had acted intentionally. From relevant portions of the record, we concluded that the evidence was “so dispositive of intent that the reviewing court [could] say beyond a reasonable doubt,” Rose, 106 S.Ct. at 3109 , that the Sandstrom error was harmless. Herd, 800 F.2d at 1528 . Whether the entire record was necessary to arrive at a fair determination of harmless Sandstrom error was not at issue in Herd . Accordingly, reference to “review of the entire record” in future Sandstrom cases is not essential to the Herd holding; that passing proscription is dictum.

The foregoing interpretation of Herd is supported by our holding in Reiger, 789 F.2d at 1428. In Reiger, we concluded that, a district court must only have “independently reviewed all relevant portions of the state court record” to warrant affirming summary denial of a habeas petition. Id. at 1428. We did not conclude that the entire record must be reviewed in all such cases.

Careful review of all relevant portions of the trial record indicates that Ruff did not dispute overwhelming evidence proffered by the government that Ruff possessed the requisite intent to commit the crime. Ruff offered, in defense, only an alibi; Ruff contended that he was not present at his brother’s residence when the fire started. Thus, Ruff himself took the issue of intent from the jury.

In Connecticut v. Johnson, 460 U.S. 73 , 103 S.Ct. 969 , 74 L.Ed.2d 823 (1983), Justice Blackmun, writing for the Court, specifically addressed such a situation:

Id. at 87 , 103 S.Ct. at 977 (emphasis added).

Unlike Herd , Ruffs appeal presents the narrow question whether review of the entire record for evidence rendering Sandstrom error harmless is required, where *1245 those portions of the record relevant to petitioner’s claim are dispositive on the issue of intent. Relevant portions of the record, reviewed by this court and by the district court, included complete jury instructions, eyewitness testimony of Ruff’s commission of the arson, and other overwhelming evidence of intent.

In view of Ruff's defense and in lieu of those portions of the record reviewed by the district court, it is apparent that the Sandstrom error did not contribute to the jury’s verdict and that the instruction was, therefore, harmless beyond a reasonable doubt. See Church v. Kincheloe, 767 F.2d 639, 643 (9th Cir.1985) (Sa ndstrom error harmless when defendant did not contest intent), cert. denied, — U.S. —, 106 S.Ct. 3339 , 92 L.Ed.2d 743 (1986); Herd v. Kincheloe, 800 F.2d 1526, 1528-29 (9th Cir.1986) (same); cf. Connecticut v. Johnson, 460 U.S. 73, 87 , 103 S.Ct. 969, 977 , 74 L.Ed.2d 823 (1983) (Sandstrom instruction may not be harmless error if intent is contested). 1

Since all relevant portions of the record were reviewed and these portions are sufficiently dispositive to render the Sandstrom error harmless, reversal for failure to review the entire record would seem to be unnecessary and, thus, wasteful of judicial resources.

Secondly, the majority holds that “if the entire record is not supplied by the parties, the district court has a duty to obtain that record itself.” (p. 4171) Again, I respectfully disagree.

The majority accurately observes that, “[i]n Austad [v. Risley, 761 F.2d 1348 (9th Cir.) (en banc), cert. denied, 474 U.S. 856 , 106 S.Ct. 163 , 88 L.Ed.2d 135 (1985)], we concluded that under 28 U.S.C. § 2254 (d), (e), the district court had no duty sua sponte to obtain and examine state court exhibits unless the habeas petitioner is unable to produce the record. Austad, 761 F.2d at 1351-54 .” (p. 4171)

The majority also accurately observes that, “[t]he statute governing federal habe-as petitions requires that when a petitioner challenges a trial court’s factual determinations, those factual determinations shall be presumed to be correct and the petitioner carries the burden of production. 28 U.S. C. § 2254(d), (e).” (pp. 4169-70)

Finally, the majority correctly points out that, in Reiger, we concluded a district court should review “ ‘relevant portions of the state court record’ [Reiger, 789 F.2d 1425, 1429 (9th Cir.1986) for mixed questions of law and fact in habeas petitions....” (p. 4170)

Here, the legal question is conceded; the government has stipulated that the Sand-strom instruction amounts to constitutional error. The factual inquiry, whether sufficient evidence of intent was introduced at trial, was decided by the district court. Petitioner failed to identify any additional portions of the record in his state court trial upon which he would rely in support of his petition, despite repeated requests (by this court and the district court) to do so. Since petitioner has neither carried the burden of production nor demonstrated *1246 that he is unable to do so, the district court is not obligated to call up sua sponte the state court record. Austad, 761 F.2d at 1351-64 .

Even if the remaining question were one of “mixed law and fact,” our holding in Austad, 761 F.2d at 1351-54 , clearly requires petitioner to either produce the record or demonstrate that he is unable to do so. In this case, petitioner has repeatedly declined to produce the record or to demonstrate that he is unable to do so.

In response, the majority offers our reasoning in Chaney. In Chaney, however, constitutional errors beyond the erroneous Sandstrom instruction were alleged and the district court failed to review any part of the state trial record. Under such circumstances, the need for reversal and sua sponte review is beyond dispute.

By narrowing our Reiger and Austad holdings and by attaching new authority to our dictum in Herd , the majority appears to relieve habeas petitioners of the duty to provide any portion of the record which will support their claim for relief. The majority has placed the burden squarely upon the reviewing court to produce the entire record.

Even in cases such as this one, where all relevant portions of the record have been reviewed, where the only element implicated by constitutional error has been taken from the jury by petitioner, and where petitioner has repeatedly declined to identify or provide the reviewing courts with any portion of the record or demonstrate that he was unable to do so, the burden to produce the record sua sponte is now on the reviewing court.

The effect of this decision is predictable. By dictating reversal each time a district court fails to review the “entire” record, even in cases where review of all relevant portions of the record suffices to fairly decide the Sandstrom question, and by insisting that the reviewing court bear the administrative burden of producing the record sua sponte when petitioner is able but unwilling to do so, the majority increases the burden on reviewing courts without foreseeable benefit.

. This case might have been resolved under the exacting “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). Ruff failed to object to the Sandstrom instruction at trial or on direct appeal. He first objected to the Sandstrom instruction in his personal restraint petition. The failure to object to a burden-shifting jury instruction at trial or on direct appeal constitutes a procedural default under Washington law. See In re Music, 104 Wash.2d 189 , 704 P.2d 144 (1985); In re Hagler, 97 Wash.2d 818 , 650 P.2d 1103 (1982). A habeas petitioner must demonstrate "cause and prejudice” when a state court denies relief due to a procedural default. Murray v. Carrier, 477 U.S. 478 , 106 S.Ct. 2639, 2644 , 91 L.Ed.2d 397 (1986). It is unlikely that Ruff could satisfy either prong of the cause and prejudice standard. See Bates v. Blackburn, 805 F.2d 569 (5th Cir.1986) (habeas petitioner who did not object to Sandstrom instruction unable to demonstrate "cause” excusing his procedural default), cert. denied, — U.S. -, 107 S.Ct. 3190 , 96 L.Ed.2d 678 (1987); Johnson v. Blackburn, 778 F.2d 1044 (5th Cir.1985) (same); United States v. Frady, 456 U.S. 152, 167-68 , 102 S.Ct. 1584, 1594 , 71 L.Ed.2d 816 (1982) ("prejudice” exists only when the ailing instruction by itself so infects the entire trial that the resulting conviction violates due process). The State did not, however, seek the application of the cause and prejudice standard. Thus, I need not more thoroughly consider the question here.