Joseph J. Tracey v. Joan Palmateer

Opinion by Judge TALLMAN; Dissent by Judge LAY.

Joseph Tracey appeals the district court’s denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254 . Tracey’s petition challenges the legality of his 1994 Oregon conviction for the first-degree murder of Scott Werner and unlawful use of a weapon. Tracey raises two issues on appeal. First, he says he was denied due process and his right to an impartial jury because the state trial court did not adequately investigate possible juror bias. Second, he claims his state court appellate counsel on his direct appeal was ineffective in violation of the Sixth Amendment. 1 We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I

Victim Werner was the fiancée of Suzanne Winder. Winder owned property— where Winder and Werner lived — next to Tracey’s property, but Winder refused to grant Tracey an easement so logging trucks could access Tracey’s timber. Relations between Tracey and Winder became strained.

On August 9, 1993, Tracey invited Wer-ner to Tracey’s home to discuss the issue. Werner walked to Tracey’s residence carrying a walking stick. As Werner approached, Tracey confronted Werner with a sawed-off shotgun. An…

dissenting:

Justice Black observed in In re Michael, 826 U.S. 224 , 228, 66 S.Ct. 78 , 90 L.Ed. 30 (1945): “[I]t is difficult to conceive of a more effective obstruction to the judicial process than a juror who has prejudged the case.” In all due respect, the majority’s refusal to require the trial judge to hold a hearing as to the expressed color-able bias of two jurors before hearing any evidence in the case is a clear travesty of justice. Such a holding is directly contrary to United States Supreme Court precedent.

In this first degree murder trial, before evidence was presented and after the jury was sworn, Mrs. Arganbright, one of the jurors, informed the state trial judge that she heard two other jurors express an opinion in the jury room that they felt Tracey was guilty. Juror Arganbright’s note stated:

(Emphasis added).

After extensive questioning concerning Arganbright’s own bias, the trial judge dismissed her because he found she was emotionally unfit to sit as a juror. The trial judge, thereafter, briefly questioned Arganbright out of the presence of the other jurors about the alleged bias of the other two women. Arganbright said she overheard two women express an…

341 F.3d 1037 Joseph J. TRACEY, Petitioner-Appellant, v. Joan PALMATEER, Respondent-Appellee. No. 01-35940. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 9, 2003 — Filed August 29, 2003. Filed August 29, 2003. Anthony D. Bornstein, Assistant Federal Public Defender, Portland, OR, for petitioner-appellant Joseph Tracey. Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kathleen Cegla, Assistant Attorney General, Salem, OR, for respondent-appellee Joan Palmateer. Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CV-99-00910-HU. Before: DONALD P. LAY, * J. CLIFFORD WALLACE, and RICHARD C. TALLMAN, Circuit Judges. Opinion by Judge TALLMAN; Dissent by Judge LAY. OPINION TALLMAN, Circuit Judge: 1 Joseph Tracey appeals the district court's denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254 . Tracey's petition challenges the legality of his 1994 Oregon conviction for the first-degree murder of Scott Werner and unlawful use of a weapon. Tracey raises two issues on appeal. First, he says he was denied due process and his right to an…