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

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

I

FACTS AND PRIOR PROCEEDINGS

The facts upon which Dewey Coleman was found guilty by a jury on November 14, 1976, are fully set forth in Coleman’s first appeal to the Montana Supreme Court and need not be repeated here. State v. Coleman, 177 Mont. 1 , 579 P.2d 732 (1978) (Coleman I). The following are the facts relevant to the instant appeal.

Coleman, who is black, and his codefend-ant, Robert Nank, who is white, were charged with the crimes of deliberate homicide, aggravated kidnapping and sexual intercourse without consent, inflicting bodily injury. Nank entered a plea bargain with the State and escaped the death penalty. The State refused to enter a similar bargain with Coleman for reasons which we need not consider in this opinion. Coleman went to trial and was convicted on all counts. He was sentenced to 100 years for *1282 deliberate homicide and 40 years on the rape charge. He was…

concurring:

Today, more than thirteen years after a state court levied an unconstitutional death sentence against Dewey Coleman, a federal court has invalidated that punishment. While the majority properly considers only one of Montana’s unlawful acts, the fact remains that the state’s prosecutors and courts committed a series of errors that are extraordinary both for their breadth and their egregiousness. 1 The history of Montana’s unrelenting effort to hang Dewey Coleman illustrates not only the failings of our legal system but also its saving graces. In a more perfect world, Dewey Coleman would not have lived under a death sentence for over a decade, and protracted litigation would not have sapped the limited resources of state and federal courts. In a less perfect world, a court system that had grown impatient with his numerous appeals would already have overseen Dewey Coleman’s execution.

I write separately today not to repeat any of the arguments thoughtfully presented for the court by Judge Thompson. I concur without reservation in his opinion. I add my additional comments only in order to point out that the case of Dewey Coleman illustrates the fact that curtailing the…

joined by Circuit Judge DAVID R. THOMPSON, concurring:

Peggy Lee Harstad was viciously murdered on July 4, 1974. That this case is still being litigated over fourteen years later does not speak well of our system of justice. The prolongation of such a matter can only have the effect of preventing her family, friends, and community from coming to peace with this horrendous event — if that is possible. Litigants, too, deserve speedier results. All of us responsible for the anemic pace of justice should reflect on every ramification of this delay and rededicate ourselves to doing everything within our power to make sure that the difficult and important decisions that are committed to us are made as expeditiously as possible. As Chief Judge Clark said in Brogdon v. Butler, 824 F.2d 338, 343 (5th Cir.1987) (Clark, C.J., concurring), “Justice requires that in each instance capital punishment be imposed with maximum assurance of scrupulous legality. But, justice equally demands an assurance that such punishment be imposed when the minds of men still retain memory of the crime committed.”

I agree with Judge Reinhardt’s assessment of the enormous and taxing death penalty workload that…

concurring in part and dissenting in part:

I agree with the majority that there was no infringement of Coleman’s sixth amendment right to an impartial jury and, therefore, concur in part II of the opinion. I also agree with part III to the extent that resentencing Coleman under Montana’s 1977 death penalty statute violated his due process rights. I disagree, however, with part Ill’s statement that “[i]t would be fruitless in this case to require trial counsel to provide a record of how he or she would have handled the case differently.” Maj. op. at 1289. Rather, I would remand for an evidentiary hearing to determine whether the due process violation was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (Chapman). As the Court recently held in Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986), “while there are some errors to which Chapman does not apply, they are the exception and not the rule....[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors.. .are subject to harmless-error analysis.” Id. at 578-79, 106 S.Ct. at 3106-07…

concurring in part and dissenting in part:

I concur in that portion of the majority’s opinion that holds that the record does not support Mr. Dewey Coleman’s claim of a violation of his right to an impartial jury at the guilt phase of his trial. I dissent from the majority’s conclusion that Mr. Coleman’s claim, that he was selected for prosecution and convicted solely because he is a black man, need not be resolved in this appeal. If Mr. Coleman was selected for prosecution and convicted in violation of his right to equal protection, any question concerning the validity of the punishment later imposed by the sentencing court would clearly be moot. The majority has not explained why it determined that it was required to reach Mr. Coleman’s contention that the jury that convicted him was improperly selected while, at the same time, apparently concluding that it was unnecessary to decide the remainder of his constitutional challenges to the guilt phase of the trial.

I

Mr. Coleman, a black man, has asked this court to order the district court to grant him an evidentiary hearing so that he may offer evidence in support of his contention that he was invidiously subjected to selective…

874 F.2d 1280 Dewey E. COLEMAN, Petitioner-Appellant, v. Jack McCORMICK, 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 En Banc and Submitted July 20, 1988. Decided May 5, 1989. Timothy K. Ford, Seattle, Wash., Henry T. Greely, Stanford, Cal., for petitioner-appellant. Patricia J. Schaeffer, Asst. Atty. Gen., State of Mont., Helena, Mont., for respondents-appellees. Appeal from the United States District Court for the District of Montana. Before GOODWIN, Chief Judge, and WALLACE, HUG, TANG, FLETCHER, ALARCON, CANBY, REINHARDT, NOONAN, THOMPSON and TROTT, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 Dewey E. Coleman, a Montana state prisoner who has been sentenced to death for the crime of aggravated kidnapping, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 . We reverse his sentence of death and remand for resentencing. 2 * FACTS AND PRIOR PROCEEDINGS 3 The facts upon which Dewey Coleman was found guilty by a jury on November 14, 1976, are fully set forth in Coleman's first…