Duncan Peder McKenzie Jr. v. Jack McCormick Warden, Montana State Prison

dissenting:

In Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977), the Supreme Court held that it was a denial of due process for a trial judge to impose the death penalty on the basis of information which was not disclosed, and which the defendant was given no opportunity to deny or explain. In his habeas petition, McKenzie claims that the pre-sentencing ex parte discussion between the special prosecutor and the sentencing judge violated his due process rights under Gardner .

Judge Ryan rejected McKenzie’s Gardner claim on the ground that McKenzie had failed to carry his burden of proving by a preponderance of the evidence that matters were discussed that did or could have influenced the judge’s sentencing decision. Order of 11/23/92, ER 106-07; see McKenzie v. Risley, 915 F.2d 1396, 1398 (9th Cir.1990). On appeal McKenzie contends that Judge Ryan erred as a matter of law in placing the burden of proof on him. He argues that once he made a threshold showing that the prosecutor and the judge had a pre-sentenc-ing meeting concerning his case, the burden shifted to the state to prove that the ex parte contact was harmless. He reads Gardner as treating “the…

Opinion by Judge KOZINSKI.

Nearly 20 years after he was sentenced to death for the brutal murder of Lana Harding, Duncan Peder McKenzie, Jr., appeals the denial of his second federal habeas petition, claiming that a meeting between the special prosecutor and the sentencing judge denied him due process of law.

I. Background

While litigating his first federal habeas petition, 1 McKenzie discovered that Special Prosecutor Douglas Anderson had met with Judge Nelson, who presided over McKenzie’s trial, for 45 minutes on February 7, 1975 — a week after the guilty verdict and a month before séntencing. Asserting that this meeting violated his right to due process at sentencing under Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977), McKenzie apparently exhausted his state remedies 2 and filed his second federal habe-as petition. 3 The district court, Judge Battin presiding, held an evidentiary hearing where Anderson testified he met with Judge Nelson to discuss payment for his services as special prosecutor. 4 Judge Battin granted summary judgment to the State 5 and denied McKenzie’s petition because McKenzie “presented no evidence that sentencing was discussed”…

27 F.3d 1415 40 Fed. R. Evid. Serv. 1313 Duncan Peder McKENZIE, Jr., Petitioner-Appellant, v. Jack McCORMICK, Warden, Montana State Prison, Respondent-Appellee. No. 93-35142. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 1, 1994. Decided June 24, 1994. Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, Gregory A. Jackson, Jackson & Rice, Helena, MT, for petitioner-appellant. Paul D. Johnson, Asst. Atty. Gen., Helena, MT, Stephanie Ross, Point Roberts, WA, Jayne Mitchell, Pondera County Atty., Conrad, MT, for respondent-appellee. Appeal from the United States District Court for the District of Montana. Before: NORRIS, BEEZER and KOZINSKI, Circuit Judges. Opinion by Judge KOZINSKI. KOZINSKI, Circuit Judge. 1 Nearly 20 years after he was sentenced to death for the brutal murder of Lana Harding, Duncan Peder McKenzie, Jr., appeals the denial of his second federal habeas petition, claiming that a meeting between the special prosecutor and the sentencing judge denied him due process of law. I. Background 2 While litigating his first federal habeas petition, 1 McKenzie discovered that Special Prosecutor Douglas Anderson had met with Judge…