Duncan Peder McKenzie Jr. v. Henry Risley, Warden of the Montana State Prison

Duncan McKenzie, a state prisoner, appeals the denial of his petition for a writ of habeas corpus. In his petition, McKenzie claimed that his death sentence should be vacated due to an ex parte meeting between the prosecutor and the trial judge prior to sentencing. The district court granted the state’s motion for summary judgment and denied McKenzie’s petition. Because we hold that the district court applied an incorrect legal standard, we reverse and remand for further proceedings.

I

In 1975, a Montana state court jury convicted McKenzie of aggravated kidnapping and deliberate homicide. Judge R.J. Nelson sentenced McKenzie to death.

This case involves the second of two federal habeas petitions filed by McKenzie. After exhausting state court remedies, McKenzie filed his first petition for writ of habeas corpus in federal court. During discovery related to this petition, McKenzie’s attorney learned that the special prosecutor in the case, Douglas Anderson, had met with Judge Nelson ex parte for about forty-five minutes. The meeting occurred on February 7, 1975, about one week after McKenzie’s conviction and one month before sentencing. In light of this information, McKenzie…