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

dissenting:

I dissent from the order granting a stay of the issuance of the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court.

On July 5, 1978, Robert Alton Harris murdered two teenagers because he wanted to use their automobile to commit a bank robbery. Eight months later, on March 6, 1979, a California jury convicted Harris of two counts of murder and recommended the death penalty. The California Supreme Court affirmed the conviction and upheld the sentence of death on February 11, 1981. The United States Supreme Court denied certiorari on October 5, 1981. Harris v. California, 454 U.S. 882 , 102 S.Ct. 365 , 70 L.Ed.2d 192 (1981).

On March 5, 1982, Harris filed his first federal petition for habeas corpus. The district court denied the first federal petition. While his first federal petition for habeas corpus was pending in this court, Harris filed a' second federal petition for habeas corpus in the district court on August 13, 1982.

On September 16, 1982, this court affirmed the denial of habeas corpus relief on most of the issues raised by Harris. We reversed the denial of the first federal petition for habeas corpus on the ground that…

concurring in part and dissenting in part:

This court is asked to decide a very narrow issue. It is: Is Robert Alton Harris entitled to an evidentiary hearing as to any of his claims? In other words, do we know enough right now, without a district court finding any facts, to say that Harris’ claims, even if true, entitle him to no relief?

I agree that for the reasons stated by the majority Harris’ petition does not require a hearing on the ground that he was deprived of the effective assistance of counsel or that he has turned up new evidence or that the state put forward false testimony against him or that an undisclosed agent of the government testified against him. I also agree that Harris’ mental state was not an issue requiring psychiatric evidence in the guilt phase of his trial. I respectfully disagree with my colleagues because I believe that Harris has a right to present evidence as to whether he was denied his constitutional right to effective psychiatric assistance in the penalty phase of his trial.

I reach this conclusion in four steps, none of which I find in doubt:

1. A new constitutional right of “bedrock” fairness affecting the accuracy of the determination of…

dissenting:

Robert Alton Harris will in all likelihood be the first person to be executed in California in over twenty years — and only the second since Ronald Reagan assumed the office of Governor approximately a quarter of a century ago. I believe the opinion of this court which denies what may be Harris’ final appeal is replete with legal errors — errors that require en banc review.

I

Preliminarily, I think it important to discuss briefly one aspect of our en banc process and its relationship to the public’s right to be fully informed on the subject of capital punishment. The en banc process allows the full court the opportunity to decide whether a three-judge decision upholding a death sentence correctly construes the Constitution and correctly applies controlling legal precedent. Yet, under our court rules, when a suggestion that the court hear a case en banc is rejected we do not announce the division. All we say is that a majority of the non-recused active judges failed to vote in favor of such a hearing. That tells the public little. We do not reveal whether the vote was close or even whether a majority of the eligible judges voted against en banc review. 1 Whatever the…

949 F.2d 1497 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. Argued and Submitted May 14, 1990. Decided Aug. 29, 1990. As Amended Nov. 19, 1990. Second Amended Opinion Aug. 21, 1991. Rehearing and Suggestion for Rehearing En Banc Denied Nov. 8, 1991. Mandate Stayed Pending Application for Writ of Certiorari Nov. 15, 1991. Appeal from the United States District Court for the Southern District of California. 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 the amici curiae, States of Idaho, Arizona, Montana, Nevada, and Washington. Before ALARCON, BRUNETTI and NOONAN, Circuit Judges. BRUNETTI, Circuit Judge: 1 On March 6, 1979, Robert Alton Harris ("Harris") was convicted of two counts of murder and sentenced to death. On March 26, 1990, Harris filed his…

On March 6, 1979, Robert Alton Harris (“Harris”) was convicted of two counts of murder and sentenced to death. On March 26, 1990, Harris filed his third federal petition for a writ of habeas corpus in the United States District Court for the Southern District of California. In this petition, Harris alleged that the state had denied him competent psychiatric assistance at trial, that the prosecution had presented false psychiatric testimony, and that newly discovered evidence showed he had organic brain damage and other mental disorders. Harris also asserted that he had been subjected to an unlawful interrogation, and had been denied effective assistance of counsel. Without holding an evidentiary hearing, the district court denied Harris’s petition. We affirmed in a decision published at 913 F.2d 606 (9th Cir.1990). Prior to the issuance of the mandate, however, Harris filed a petition for a rehearing and a suggestion for rehearing en banc. On November 29, 1990, before we had completed our review of the petition for a rehearing, Harris filed a motion for a limited remand to the district court for an evidentiary hearing, based on newly discovered evidence, on the question whether…

ORDER

Nov. 8, 1991.

Judge Alarcon and Judge Brunetti have voted to deny appellant’s petition for rehearing filed September 5, 1991, and to reject the suggestion for rehearing en banc. Judge Noonan would grant appellant’s petition for rehearing filed September 5, 1991, and would accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonre-cused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing filed September 5, 1991, is denied and the suggestion for rehearing en bane is rejected.