Hanson v. Mahoney

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DALE MICHAEL HANSON,  No. 02-35795
Petitioner-Appellant,
v.  D.C. No.
CV-00-00049-LBE
MIKE MAHONEY, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Montana
Leif B. Erickson, Magistrate Judge, Presiding

Argued and Submitted
June 2, 2003—Seattle, Washington
Original Opinion Withdrawn January 28, 2004
Reargued and Submitted October 19, 2004
Seattle, Washington

Filed January 10, 2006

Before: Betty B. Fletcher, Melvin Brunetti, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge B. Fletcher;
Concurrence by Judge B. Fletcher

189
192 HANSON v. MAHONEY

COUNSEL

David Ness, Assistant Federal Defender, Helena, Montana,
for the petitioner-appellant.

Carol E. Schmidt, Assistant Attorney General, Helena, Mon-
tana, for the respondent-appellee.

OPINION

B. FLETCHER, 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 con-
sent was without authority to issue a certificate of appeala-
bility (“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 magis-
trate 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, 964 P.2d 713 (Mont. 1998).
Because we hold that magistrate judges are authorized to
 HANSON v. MAHONEY 193
issue COAs, and we agree that Hanson’s claim for relief is
procedurally defaulted, we affirm.1

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
convict Hanson, but did not specify that unanimous agree-
ment as to at least one underlying sex act was necessary to
support a conviction on each charge.

On appeal with new counsel, Hanson raised a number of
issues for the first time, and he contended that his trial counsel
had been ineffective under Strickland v. Washington, 466 U.S.
668 (1984), for failing to raise them below. Hanson, however,
raised no claim that the jury instructions on unanimity were
deficient. The Montana Supreme Court rejected his claims of
trial error and held that his counsel had not been ineffective
under Strickland. State v. Hanson, 940 P.2d 1166, 1174
(Mont. 1997).

After the Montana Supreme Court issued its disposition of
Hanson’s direct appeal, it reversed another defendant’s con-
viction for a similar crime on direct appeal. See Weaver, 964
P.2d at 717-21. The court held that the trial court committed
plain error by not instructing the jury “that it had to reach a
unanimous verdict as to at least one specific underlying act of
1
On January 28, 2004, we withdrew our opinion (over a dissent by
Judge Brunetti) and ordered appointment of new counsel and rebriefing
after we received notification that Hanson’s prior attorneys had failed to
raise crucial issues, namely, (1) ineffective assistance of counsel for
claims that had been defaulted in state court, and (2) actual innocence.
Hanson was well represented in his appeal through careful briefing and
articulate argument by his newly appointed counsel. After a thorough
review, we have determined that those claims do not have merit because
they have either been procedurally defaulted or are unexhausted.
194 HANSON v. MAHONEY
sexual assault for each count charged in the information.” Id.
at 717.

Hanson filed a petition for state collateral review. He was
assisted by Ed Sheehy, an attorney under contract with the
Montana Department of Corrections to help prisoners with
appeals and petitions for post-conviction relief. Sheehy ghost-
wrote Hanson’s petition and briefs. Hanson raised claims of
ineffective assistance of counsel, and because of Sheehy’s
assistance, he added a claim under Weaver challenging the
jury instructions.

The Montana Supreme Court dismissed the petition. See
State v. Hanson, 988 P.2d 299 (Mont. 1999). It held that Han-
son’s claim of instructional error was barred under Mont.
Code Ann. § 46-21-105(2), which provides in pertinent part
that “[w]hen a petitioner has been afforded the opportunity for
a direct appeal of the petitioner’s conviction, grounds for
relief that were or could reasonably have been raised on direct
appeal may not be raised, considered, or decided in a proceed-
ing brought under this chapter.” The Montana Supreme Court
explained that the cases on which the appellant in Weaver had
relied had been decided before Hanson’s direct appeal and
that Hanson was aware of the applicability of the plain error
doctrine to his case because he had argued that the trial court
had committed plain error on grounds other than the unanim-
ity instruction. Hanson, 988 P.2d at 300-01. The Montana
Supreme Court explicitly declined to reach Hanson’s claim
that he was entitled to retroactive relief under Weaver not-
withstanding § 46-21-105, because to reach the merits of the
claim would frustrate the consistent application of the statu-
tory bar. Id. at 301.

Hanson, acting pro se, filed a timely petition for habeas
corpus in federal district court. He claimed that under Teague
v. Lane, 489 U.S. 288 (1989), he was entitled to the retroac-
tive application of the unanimity instruction required by Wea-
ver, and that he was entitled to relief based on his trial
 HANSON v. MAHONEY 195
counsel’s ineffective assistance. A magistrate judge, Leif
Erickson, determined that Hanson’s claim for relief under
Teague and Weaver was procedurally barred as was part of
his claim of ineffective assistance of counsel. Magistrate
Judge Erickson appointed counsel for Hanson, and the parties
consented “to have a U.S. Magistrate Judge conduct any and
all further proceedings in the case, including trial, order the
entry of a final judgment, and conduct all post judgment pro-
ceedings.” The case was duly assigned to Magistrate Judge
Erickson.

In a reasoned order, Magistrate Judge Erickson denied
Hanson’s motion to reconsider his ruling that the claim under
Teague and Weaver and some of Hanson’s ineffective assis-
tance of counsel claims were defaulted. In a second reasoned
order, the magistrate judge dismissed Hanson’s remaining
claims of ineffective assistance of counsel on the merits and,
after addressing Hanson’s renewed arguments regarding pro-
cedural default, entered final judgment in the case.

Hanson filed a timely notice of appeal and asked that an
Article III judge consider his request for a COA. Magistrate
Judge Erickson denied Hanson’s motion to have his request
for a COA considered by a district judge and held that
because the parties consented to his adjudication of post-
judgment proceedings, he had the authority to adjudicate the
request for a COA. The magistrate judge, upon consideration
of the merits of Hanson’s request, issued a COA as to the una-
nimity claim and denied one as to the claims of ineffective
assistance of counsel.

ANALYSIS

I. Magistrate Judge Authority

Hanson contends that magistrate judges are not authorized
to issue COAs.2 We disagree.
2
Because Hanson filed his federal petition for habeas relief after the
effective date of the Antiterrorism and Effective Death Penalty Act of
196 HANSON v. MAHONEY
We begin our analysis with the scope of authority that Con-
gress conferred on Magistrate Judges. “Congress intended
magistrates to play an integral and important role in the fed-
eral judicial system.” Peretz v. United States, 501 U.S. 923,
928 (1991); see also United States v. Reyna-Tapia, 328 F.3d
1114, 1116 (9th Cir. 2003) (en banc).

[1] Issuing a COA is within the scope of the authority
granted to magistrate judges under the Federal Magistrates
Act. The Magistrates Act permits magistrate judges to con-
duct all proceedings in civil cases if the parties consent:
“Upon consent of the parties, a . . . United States magistrate
judge . . . may conduct any or all proceedings in a jury or non-
jury civil matter and order the entry of judgment in the case,
when specially designated to exercise such jurisdiction by the
district court or courts he serves.” 28 U.S.C. § 636(c)(1).3 The
statute affirmatively states that “an aggrieved party may
appeal directly to the appropriate United States court of
appeals from the judgment of the magistrate judge in the same
manner as an appeal from any other judgment of a district
court.” 28 U.S.C. § 636(c)(3). Here, the state and Hanson con-
sented to the magistrate judge’s adjudication of “any and all
further proceedings in the case, including trial, order the entry
of a final judgment, and . . . all post judgment proceedings.”
The decision to issue a COA is plainly a post judgment pro-
ceeding within the scope of the parties’ consent, and it is
clearly a “proceeding[ ] in a . . . civil matter.” See 28 U.S.C.
§ 2254.

[2] Nothing in the statutes that govern the issuance of
COAs mandates the contrary conclusion that a COA may be
issued only by an Article III judge. Under 28 U.S.C.

1996 (AEDPA), we must consider his petition under the standards of that
statute.
3
Neither party contends that the district court failed to designate Magis-
trate Judge Erickson to exercise such jurisdiction.
 HANSON v. MAHONEY 197
§ 2253(c)(1), a “circuit justice or judge” must issue a COA
before an appeal of a final order in a case under § 2254 may
be taken. It is well settled that the phrase “circuit justice or
judge” — though ambiguous — includes district judges as
well as circuit judges. United States v. Asrar, 116 F.3d 1268,
1269-70 (9th Cir. 1997). Accord Dressler v. McCaughtry, 238
F.3d 908, 912 n.3 (7th Cir. 2001) (holding that § 2253 is
ambiguous as to whether magistrate judges are authorized to
issue a COA, but that magistrate judges may do so). The stat-
ute is silent as to whether the “judge” must be an Article III
judge, and nothing in the phrase suggests that Congress
intended the words “circuit justice or judge” to exclude mag-
istrate judges when they act in a capacity otherwise autho-
rized by the Magistrates Act.

[3] The procedural requirements of the Federal Rules of
Appellate Procedure similarly do not preclude magistrate
judges from issuing COAs. Rule 22 provides in part that “[i]n
a habeas corpus proceeding in which the detention com-
plained of arises from process issued by a state court . . . the
applicant cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability.”
Fed. R. App. P. 22(b)(1). Although the list of judges does not
include magistrate judges, there is no indication that it was
intended to limit the scope of § 2253(c)(1). Indeed, the advi-
sory committee note to the 1998 amendments that added the
phrase “circuit justice or a circuit or district judge” to Rule 22
makes clear that the phrase was inserted in the Rule to show
inclusively that district judges, and not only circuit judges, are
authorized to issue COAs. See Fed. R. App. P. 22 advisory
committee note. The amendments did not address the question
of whether magistrate judges were barred from doing so.
Accordingly, the amendments do not indicate an intent to bar
magistrates from issuing COAs and the principle of inclusio
unius est exclusius alterius does not apply with any force to
this aspect of Rule 22.

[4] Moreover, this court has already adopted an interpreta-
tion of Rule 22 that permits magistrate judges to issue COAs.
198 HANSON v. MAHONEY
The Ninth Circuit rules state that “a certificate of appeala-
bility must first be considered by the district court,” Ninth
Circuit Rule 22-1(a) (emphasis added), without specifying
whether the judge at the district level must be an Article III
judge or a magistrate judge. The choice of the term “district
court” rather than a specific reference to district or magistrate
judges raises the inference that a magistrate judge is not pre-
cluded from issuing a COA under Fed. R. App. P. 22.
Although we are not bound by our circuit rule if it conflicts
with binding authority to the contrary, this court’s interpreta-
tion of Fed. R. App. P. 22 as announced in the circuit rules
is significantly persuasive.

Finally, we note that regardless of whether a petitioner’s
request for a COA is adjudicated below by an Article III
judge, after the request has been considered by the district
court, the petitioner is free to request a COA from the judges
of this court. See Ninth Circuit Rule 22. We may grant a
request for a COA on any issue if the petitioner makes a “sub-
stantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). That is, if a petitioner shows “that rea-
sonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’ ” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)); see also Miller-El v. Cockrell, 537 U.S.
322 (2003). In practical terms, therefore, a petitioner does not
lose the opportunity for his request for a COA to be consid-
ered anew by an independent Article III judge merely because
a magistrate judge considered the request in the first instance.

[5] Accordingly we hold that magistrate judges may issue
COAs if they have been authorized by consent of the parties
to adjudicate the entire case pursuant to 28 U.S.C.
§ 636(c)(1).
 HANSON v. MAHONEY 199
II. Merits

[6] We turn to the merits of Hanson’s appeal. The COA
issued below permits us to consider (1) whether Hanson was
deprived of a constitutional right because the state trial court
did not require the jury to agree unanimously as to which of
Hanson’s alleged sex acts constituted the conduct for which
he was convicted on each count and (2) whether Hanson’s
claim for relief on this basis was procedurally defaulted.4 We
agree with the district court that Hanson’s claim for relief on
his unanimity claim was defaulted and that the default is not
excused. We therefore affirm the dismissal below.

Hanson advances two arguments as to why his unanimity
claim may be heard on the merits. First, he contends that the
Montana statute asserted to bar his claim on procedural
grounds is not firmly established and has not been regularly
followed, and thus does not preclude our consideration of his
claim. Second, he argues that any default is excused because
the attorney who assisted him with the preparation of his state
petition for collateral relief operated under a conflict of inter-
est. Neither of these arguments has merit.

A. Firmly Established and Regularly Followed State Bar

As we have explained:

The procedural default doctrine bars federal habeas
when a state court declined to address a prisoner’s
federal claims because the prisoner had failed to
meet a state procedural requirement.

Not all state procedural bars are adequate to fore-
close federal review. For the procedural default doc-
trine to apply, a state rule must be clear, consistently
4
Because Hanson has not challenged the scope of the COA issued, we
do not consider whether a COA might issue on his other claims for relief.
200 HANSON v. MAHONEY
applied, and well-established at the time of the peti-
tioner’s purported default.

Calderon v. United States District Court, 96 F.3d 1126, 1129
(9th Cir. 1996), cert. denied sub nom. Calderon v. Bean, 520
U.S. 1204 (1997) (citations and internal quotation marks
omitted). Hanson contends that when his state direct appeal
was adjudicated, the Montana courts did not consistently
apply § 46-21-105 to bar claims not raised on direct appeal.
Because we must look to the time period in which the pur-
ported default occurred to judge the adequacy of the state bar,
see Calderon v. United States District Court, 103 F.3d 72, 75
(9th Cir. 1996) (per curiam), cert. denied 521 U.S. 1129
(1997), we consider whether § 46-21-105 was clear, consis-
tently applied, and well established from 1995 to 1997. We
conclude that it was.

Hanson cites two Montana cases from the relevant time
period to prove otherwise: State v. Christensen, 907 P.2d 970
(Mont. 1995) and Kills On Top v. State, 901 P.2d 1368 (Mont.
1995). The state court held in Christensen that § 46-21-105
may be overlooked when a petitioner demonstrates that a fun-
damental miscarriage of justice has occurred. Christensen,
907 P.2d at 972. This ruling does not help Hanson because,
although the Montana court recognized an exception to § 46-
21-105, it refused to apply it. Christensen does not indicate
that § 46-21-105 in fact was inconsistently applied at the time.

Nor does Kills On Top considered in conjunction with
Christensen aid Hanson. In Kills On Top, the Montana
Supreme Court specifically overruled an older precedent,
State v. Henricks, 672 P.2d 20, 23 (Mont. 1983), that had per-
mitted it to review claims not raised on direct appeal despite
§ 46-21-105. The court was at pains to indicate that it had
been consistent in applying § 46-21-105, and it stated:

Since Henricks was decided, we have not cited it for
the proposition that this Court can review issues in
 HANSON v. MAHONEY 201
postconviction proceedings which could have been
raised on direct appeal. We now specifically overrule
Henricks to the extent that it stands for the proposi-
tion that this Court can review issues in postconvic-
tion proceedings which could have been raised on
direct appeal.

Kills On Top, 901 P.2d at 1386-87. Thus, the Montana
Supreme Court indicated clearly that despite Henricks, its
jurisprudence applying § 46-21-105 was clear and consistent.
Hanson has raised nothing before this court to indicate that
the Montana Supreme Court’s assessment of its jurisprudence
is inaccurate.

The other cases that Hanson asks us to consider were
decided well after 1997 and are outside of the relevant time
period. See State v. Whitehorn, 50 P.3d 121 (Mont. 2002);
State v. Worrall, 976 P.2d 968 (Mont. 1999). Accordingly, we
hold that § 46-21-105 is adequate to bar Hanson’s claim.

B. Excuse for Default

Because we hold that Hanson’s claim for relief is procedur-
ally defaulted, we must consider whether his default is
excused. “Procedural default is excused if ‘the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice.’ ” Boyd v. Thompson, 147 F.3d 1124,
1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501
U.S. 722, 750 (1991)).

Hanson does not allege that failure to consider his claims
will result in a fundamental miscarriage of justice. He argues
instead that he has demonstrated cause and prejudice because
Ed Sheehy, who ghostwrote his state petition for collateral
review, operated under a fatal conflict of interest because he
was employed by the Montana Department of Corrections at
202 HANSON v. MAHONEY
the time he wrote Hanson’s petition and briefs. Even assum-
ing for the sake of argument that Sheehy was under a conflict
of interest, nothing he did caused Hanson’s default. Sheehy’s
involvement with Hanson’s case occurred entirely after the
default occurred. At most Sheehy’s acts or omissions failed to
rectify the earlier default. However, no claim for relief based
on Sheehy’s involvement in the case is before us, and we can-
not say that any additional arguments that Sheehy might have
raised regarding Hanson’s counsel on direct appeal would
have excused the failure to raise Hanson’s claim on direct
appeal.

Accordingly, we hold that Hanson has not established
cause or prejudice for the default of his claim.

CONCLUSION

We hold that the magistrate judge was authorized to issue
the COA. Because Hanson’s claim is defaulted, and the
default is not excused, we affirm the dismissal of his petition
for a writ of habeas corpus.

AFFIRMED.

B. FLETCHER, 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, indicat-
ing her vendetta to do anything to get even with him after
their breakup. Because that plan might have included fabricat-
ing 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 fail-
ure may have constituted ineffective assistance of counsel.
 HANSON v. MAHONEY 203
However, at this juncture, that particular claim cannot be
entertained. See Majority at 193 n.1. Thus, this appeal illus-
trates 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, fre-
quently 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 maintains his innocence and refuses to do so.
Thus, he remains incarcerated pending resolution of a subse-
quent charge for refusing to register as a sex offender. No stay
of incarceration was entered during the pendency of these
proceedings.

At oral argument, I suggested to the State that it consider
alternatives to pursuing these new state-law charges in light
of the strength of Hanson’s claim of ineffective assistance of
counsel and his unwavering claim of innocence. The State’s
stringent and unbending approach, however unfortunate, is
unremediable.