Dale Michael Hanson v. Mike Mahoney, Warden

ORDER

The opinion filed on July 18, 2003 is withdrawn. A majority of the panel has voted to reconsider its decision in this case. The panel is presented with a significant claim of conflict between petitioner and his counsel on appeal. Petitioner has informed the court that he no longer wishes to be represented by counsel appointed by the district court. Petitioner is hereby ordered to inform the court by February 13, 2004, whether he wishes to proceed pro se or whether he requests appointment of counsel. The clerk shall enter an order setting a schedule for re-briefing of this appeal. If Petitioner chooses to be represented by new appointed counsel, the clerk shall enter an order designating and appointing counsel.

The Clerk shall serve this order on appellant individually, at Dale Hanson, #A037112, 700 Conley Lake Road, Deer Lodge, Montana, 89722.

dissenting:

I dissent from the order withdrawing the opinion. There is no basis for this action because there was no error in our opinion. As the following discussion relates, the majority is simply giving Hanson a second habeas challenge within this appeal and the option of new counsel, and he is not entitled to either.

Following denial of habeas relief at the district court, Hanson filed his notice of appeal on April 26, 2002. He requested a certificate of appealability (“COA”) as to his Weaver retroactivity argument and his ineffective assistance of counsel claims. See State v. Weaver, 290 Mont. 58 , 964 P.2d 713 (1998) (finding jury instruction in error for not requiring unanimous verdict as to at least one specific underlying act). On August 16, 2002, the magistrate judge declined Hanson’s request for review by an Article III judge and issued a COA only for Hanson’s Weaver unanimity argument. Hanson did not challenge the scope of the COA.

Hanson appealed and oral arguments were held by this court in June 2003, and we issued our opinion on July 18, 2003. In our decision, we affirmed the magistrate judge and concluded that magistrate judges can issue a COA. Hanson v.…

357 F.3d 880 Dale Michael HANSON, Petitioner-Appellant, v. Mike MAHONEY, Warden, Respondent-Appellee. No. 02-35795. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2003. Opinion Filed July 18, 2003. Withdrawn January 28, 2004. Michael Donahoe, Federal Defenders of Montana, Helena, MT, for petitioner-appellant. Carol E. Schmidt, Helena, MT, for Respondent-Appellee. Appeal from the United States District Court for the District of Montana; Leif B. Erickson, Magistrate, Presiding. D.C. No. CV-00-00049-LBE. Before B. FLETCHER, BRUNETTI, and McKEOWN, Circuit Judges. ORDER 1 The opinion filed on July 18, 2003 is withdrawn. A majority of the panel has voted to reconsider its decision in this case. The panel is presented with a significant claim of conflict between petitioner and his counsel on appeal. Petitioner has informed the court that he no longer wishes to be represented by counsel appointed by the district court. Petitioner is hereby ordered to inform the court by February 13, 2004, whether he wishes to proceed pro se or whether he requests appointment of counsel. The clerk shall enter an order setting a schedule for rebriefing of this appeal. If…