Patrick English v. United States of America, Derek Tano v. United States of America, Lutrell Davis v. United States

Opinion by Judge REINHARDT; Concurrence by Judge BROWNING.

Introduction

This case forces us to attempt to make some sense of the procedural morass that surrounds habeas corpus. In all three cases, a United States magistrate presided over voir dire without the consent of the defendants. While the cases were still pending on direct appeal, the Supreme Court in Gomez v. United States, 490 U.S. 858 , 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989), held that it is per se reversible error for a magistrate to preside over jury selection in a felony trial without the defendant’s consent. Subsequently, each defendant sought review in the Supreme Court, but none of the petitions for certiorari raised a Gomez claim. Instead, the defendants’- attorneys chose to pursue the issue in petitions for collateral relief under 28 U.S.C. § 2255 . Although the petitioners would clearly prevail on the merits, the government argues that we must overlook the reversible error that transpired simply because their attorneys raised their Gomez claims in § 2255 rather than certiorari petitions. Because, under the law of this circuit (at least as of the time of the purported procedural defaults in this case), there…

concurring:

I write separately because I believe the majority’s reasoning conflicts with Ninth Circuit precedent. I concur in the judgment because a different analysis consistent with our precedent leads to the same result.

I.

The majority interprets United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982), as holding federal defendants who seek to attack their convictions collaterally must show “cause” for, and “actual prejudice” from, their failure to raise their constitutional claim only if they have also violated a specific rule providing the particular claim will be barred if not raised during the direct criminal proceedings. Based on this interpretation of Frady , the majority concludes English, Taño, and Davis were not required to show cause and prejudice to collaterally challenge their convictions on the basis of Gomez v. United States, 490 U.S. 858 , 109 S.Ct. 2237 , 104 L.Ed.2d 923 (1989), despite their failure to raise this issue on appeal or otherwise in their direct criminal proceedings, because there was no rule providing such claims were forfeited unless they were raised during the direct proceedings.

Our circuit has already interpreted…

42 F.3d 473 Patrick ENGLISH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Derek TANO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Lutrell DAVIS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Nos. 91-16442, 91-16500 and 92-15368. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 6, 1992. Decided Nov. 1, 1994. As Amended Nov. 21, 1994. John Ashford Thompson, Honolulu, HI, for plaintiff-appellant English and for plaintiff-appellee Davis. Suzanne Terada, and Richard S. Kawana, Honolulu, HI, for plaintiff-appellant Tano. Louis A. Bracco, Asst. U.S. Atty., Honolulu, HI, for the defendant-appellee in English and the defendant-appellant in Davis. Appeals from the United States District Court for the District of Hawaii. Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges. Opinion by Judge REINHARDT; Concurrence by Judge BROWNING. REINHARDT, Circuit Judge: Introduction 1 This case forces us to attempt to make some sense of the procedural morass that surrounds habeas corpus. In all three cases, a United States magistrate presided over voir dire without the consent of the defendants. While…