Dale Michael Hanson v. Mike Mahoney, Warden

Circuit Judge.

Dale Michael Hanson, whose petition for a writ of habeas corpus challenging his Montana conviction for sexual assault and deviate sexual conduct was dismissed by a magistrate judge, brings two issues before this court. First, he contends that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253 and, therefore, he asks this court to rule that his request for a COA must be returned to the district court for consideration by an Article III judge. Second, he contends, in the alternative, that the magistrate judge erred in holding that he procedurally defaulted his claim that the state trial court’s instruction on unanimity was defective under State v. Weaver, 290 Mont. 58 , 964 P.2d 713 (1998). Because we hold that magistrate judges are authorized to issue COAs, and we agree that Hanson’s claim for relief is procedurally defaulted, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Hanson was convicted in Montana of sexual assault and deviant sexual conduct in 1995. At trial, the district court instructed the jury that a unanimous verdict was required to…

Circuit Judge, specially concurring:

We requested rebriefing in this case after we became aware of tapes containing vindictive voice-mail messages, left on Hanson’s answering machine by the victim’s mother, indicating her vendetta to do anything to get even with him after their breakup. Because that plan might have included fabricating charges of child abuse, the tapes, had they been placed into evidence, could have influenced the jury’s decision regarding Hanson’s guilt. Hanson’s trial counsel never sought to introduce the messages; under the circumstances, that failure may have constituted ineffective assistance of counsel.

However, at this juncture, that particular claim cannot be entertained. See Majority at 193 n. 1. Thus, this appeal illustrates the consequences — often tragic— that result from procedural failures, as cases proceed from trial to appeal to post-conviction proceedings. At our level of review, frequently we are unable to untie the Gordian knot. That is so in this case.

Equally tragic, Hanson continues to sit in jail even though he is eligible for release — and has been for some time. The State of Montana requires him to register as a sex offender, but Hanson…

433 F.3d 1107 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. Original Opinion Withdrawn January 28, 2004. Reargued and Submitted October 19, 2004. Filed January 10, 2006. COPYRIGHT MATERIAL OMITTED David Ness, Assistant Federal Defender, Helena, MT, Darla J. Mondou, Marana, AZ, for the petitioner-appellant. Carol E. Schmidt, Assistant Attorney General, Helena, MT, for the respondent-appellee. Appeal from the United States District Court for the District of Montana, Leif B. Erickson, Magistrate Judge, Presiding. D.C. No. CV-00-00049-LBE. Before B. FLETCHER, BRUNETTI, and McKEOWN, Circuit Judges. BETTY B. FLETCHER, Circuit Judge. 1 Dale Michael Hanson, whose petition for a writ of habeas corpus challenging his Montana conviction for sexual assault and deviate sexual conduct was dismissed by a magistrate judge, brings two issues before this court. First, he contends that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253 and, therefore,…