Robert Alton Harris v. Daniel Vasquez, Warden of California State Prison at San Quentin

928 F.2d 891 Robert Alton HARRIS, Petitioner-Appellant, v. Daniel VASQUEZ, Warden of California State Prison at San Quentin, Respondent-Appellee. No. 90-55402. United States Court of Appeals, Ninth Circuit. March 22, 1991. Charles M. Sevilla and Michael McCabe, San Diego, Cal., and Michael Laurence, San Francisco, Cal., for petitioner-appellant. Jay M. Bloom, Supervising Deputy Atty. Gen., and Louis R. Hanoian, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee. Kent S. Scheidegger, Special Deputy Atty. Gen., Sacramento, Cal., for amici curiae, States of Idaho, Ariz., Mont., Nev. and Wash. Before ALARCON, BRUNETTI, and NOONAN, Circuit Judges.ORDER 1 On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus. This petition alleged the following grounds for relief: (1) the state denied Harris his constitutional right to competent psychiatric assistance under Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985); (2) Harris was denied the effective assistance of counsel; (3) newly discovered evidence of organic brain damage and other mental disorders warranted relief; (4) false testimony was presented by a prosecution…

*892 ORDER

On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus. This petition alleged the following grounds for relief: (1) the state denied Harris his constitutional right to competent psychiatric assistance under Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985); (2) Harris was denied the effective assistance of counsel; (3) newly discovered evidence of organic brain damage and other mental disorders warranted relief; (4) false testimony was presented by a prosecution psychiatrist; (5) the state courts failed to review independently the evidence and determine the appropriateness of the death penalty as required by state law; and (6) the prosecution relied upon the testimony of Joey Abshire whom Harris alleged was a government agent who unlawfully interrogated him (“the Abshire claim”). The Abshire claim was based upon two declarations stating that Abshire had unauthorized access to the legal papers of Harris’s brother and codefendant, Daniel Harris. Harris also asserted that the Ab-shire claim did not violate Rule 9 of the rules governing habeas petitions under 28 U.S.C. § 2254 because the evidence of Ab-shire’s access to…

dissenting:

In Harris v. Vasquez, 913 F.2d 606, 618 (9th Cir.1990) this court unanimously held as follows:

There is no allegation in the affidavits supporting the petitioner’s motion to remand that the state was responsible for keeping Daniel Harris, Joey Abshire or Sonny Wisdom from interrogation by counsel for Harris prior to 1990. There is no allegation in these affidavits that Daniel Harris was unavailable for questioning by counsel for Harris prior to 1990. There is nó allegation that Sonny Wisdom was unavailable for questioning by counsel for Harris prior to 1990. There is no allegation that Joey Abshire was unavailable for questioning by counsel for Harris prior to 1990. There is no reason why the issue of Joey Abshire’s role should be raised at this late date and no reason has been presented to depart from the law that is established. I dissent from the order.