Lee M. Hays v. A.J. Arave

977 F.2d 475 Lee M. HAYS, Petitioner-Appellant, v. A.J. ARAVE, et al., Respondent-Appellee. No. 90-16775. United States Court of Appeals, Ninth Circuit. Submitted Nov. 4, 1991. * Decided Oct. 7, 1992. Lee M. Hays, in pro per. J. Robert Jibson, Deputy Atty. Gen., Sacramento, Cal., for respondent-appellee. Appeal from the United States District Court for the Eastern District of California. Before: POOLE, REINHARDT, and FERNANDEZ, Circuit Judges. REINHARDT, Circuit Judge: 1 Lee M. Hays appeals the district court's dismissal of his pro se habeas petition. He raises numerous claims on appeal. We need address only one issue, however, because we find it dispositive. 2 Hays asserts that he was denied his right to be present at his sentencing when California sentenced him in absentia. 1 Hays has both a state and federal right to be present at his sentencing. His state right emanates from the California Constitution and section 1193 of the California Penal Code, which at the time of Hays' sentencing provided that he "must be personally present when judgment is pronounced against him, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall…

Lee M. Hays appeals the district court’s dismissal of his pro se habeas petition. He raises numerous claims on appeal. We need address only one issue, however, because we find it dispositive.

Hays asserts that he was denied his right to be present at his sentencing when California sentenced him in absentia. 1 Hays has both a state and federal right to be present at his sentencing. His state right emanates from the California Constitution and section 1193 of the California Penal Code, which at the time of Hays’ sentencing provided that he “must be personally present when judgment is pronounced against him, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his absence.” Hays’ federal right emanates from the Constitution: he has both a due process right to be present at his sentencing, see Brewer v. Raines, 670 F.2d 117, 118-19 (9th Cir.1982); see also Faretta v. California, 422 U.S. 806 , 819 n. 15, 95 S.Ct. 2525 , 2533 n. 15, 45 L.Ed.2d 562 (1975) (“It is now accepted, for example, that an accused *477 has a right to be present at all stages of…

dissenting:

Because Hays could have invoked his right to be present at sentencing using the procedures provided under the IAD, and in light of the fact that he did not exhaust the remedies available to him under the IAD and impeded California’s efforts to procure his presence for sentencing, I respectfully dissent.

The IAD provides two means by which a prisoner may be brought to another state for the disposition of pending charges. Article IV provides that a prisoner against whom a detainer has been lodged may be made available to a requesting state upon written request for temporary custody or availability to the appropriate authorities in the state where the prisoner is serving his sentence. See Interstate Agreement on Detainers, 18 U.S.C.App. § 2, art. IV(a). Article III of the IAD provides that a prisoner shall be brought to trial in a state which has lodged a detainer against him within 180 days of his giving notice of the place of his imprisonment and of his request for a final disposition to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction. See id., art. 111(a).

California filed a detainer against Hays on July 16, 1984. The…