Dewey E. Coleman v. Jack McCormick Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana

ALARCON, Circuit Judge,

concurring in part and dissenting in part:

I concur in that portion of the majority’s opinion that holds that the record does not support Mr. Dewey Coleman’s claim of a violation of his right to an impartial jury at the guilt phase of his trial. I dissent from the majority’s conclusion that Mr. Coleman’s claim, that he was selected for prosecution and convicted solely because he is a black man, need not be resolved in this appeal. If Mr. Coleman was selected for prosecution and convicted in violation of his right to equal protection, any question concerning the validity of the punishment later imposed by the sentencing court would clearly be moot. The majority has not explained why it determined that it was required to reach Mr. Coleman’s contention that the jury that convicted him was improperly selected while, at the same time, apparently concluding that it was unnecessary to decide the remainder of his constitutional challenges to the guilt phase of the trial.

I

Mr. Coleman, a black man, has asked this court to order the district court to grant him an evidentiary hearing so that he may offer evidence in support of his contention that he was invidiously subjected to selective prosecution, represented by ineffective counsel, and convicted of three crimes based upon legally insufficient evidence, notwithstanding his innocence, in violation of his federal constitutional rights. In a brief and enigmatic footnote, the majority has expressly declined to review the merits of these serious constitutional challenges, which, if true, should entitle him to a new trial if not immediate freedom from further incarceration. The majority appears to have ignored the Supreme Court’s instruction that in considering a capital case “the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983) (emphasis added). Because I believe that the failure of the majority to determine the merits of each of Mr. Coleman’s allegations of grave constitutional error concerning the guilt phase of his trial may result in the continued confinement of a state prisoner — who may be innocent— for the rest of his life, I cannot join in the majority’s advisory opinion concerning the validity of the punishment imposed for the commission of one of these crimes.

II

Over thirteen years ago, Mr. Coleman was convicted by a Montana jury of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, with *1305bodily injury (forcible rape). He is presently serving a sentence of 100 years for deliberate homicide and a consecutive sentence of 20 years for forcible rape. Coleman II, 185 Mont. 299, 605 P.2d 1000, 1007 (1979). He also received a sentence of death for the crime of aggravated kidnapping.

Mr. Coleman claims that he is innocent and was selected for prosecution and convicted solely because he is black. The Montana courts refused to grant Mr. Coleman an opportunity to prove that he is the victim of selective prosecution and other serious constitutional violations which, if true, would compel reversal of his convictions and the restoration of his freedom. Having exhausted his state remedies, Mr. Coleman exercised his right under 28 U.S.C. § 2254 to petition the federal courts to hear his evidence that he was selected for prosecution and convicted solely because he is a black man.

The district court dismissed Mr. Coleman’s petition without a hearing. A three-judge panel of this court heard Mr. Coleman’s appeal from the denial of his petition for a writ of habeas corpus. Two of the judges concluded that the record failed to support Mr. Coleman’s contention that “he was tried, convicted, and sentenced to death as a result of pervasive racial discrimination.” Coleman v. Risley, 839 F.2d 434, 450 (9th Cir.1988). Our dissenting colleague was of the view that Mr. Coleman was “entitled at the least, to a full and fair hearing on [the equal protection claim] in the district court.” Id. at 482. In a subsequent passage, the dissent argued that “where the defendant establishes a prima facie case of racial discrimination, we have an obligation to conduct a hearing and probe the motives of the prosecution.” Id. at 483.

Mr. Coleman petitioned for a rehearing and suggested that such reconsideration should be conducted by an en banc panel of this court. He again argued that the record of the state court proceedings amply demonstrated that he was entitled to an evidentiary hearing to prove that he was selected for prosecution and convicted because he is black. We granted rehearing en banc.

In its opinion, the en banc majority has failed to determine the merits of Mr. Coleman’s contention that he is entitled to an evidentiary hearing to prove that he was selected for prosecution and convicted solely because of his race. Instead the majority has limited its review to a discussion of the validity of the jury selection process and the punishment imposed as the result of Mr. Coleman's conviction for the crime of aggravated kidnapping. The majority has also failed to address Mr. Coleman’s remaining constitutional attacks on his convictions for aggravated kidnapping, deliberate homicide and forcible rape.

In refusing to consider the constitutional integrity of Mr. Coleman’s convictions for deliberate homicide and forcible rape, the majority appears to have blinded itself to the fact that the prisoner was sentenced to serve 120 years for these offenses and that he seeks an evidentiary hearing in the district court so that he can demonstrate that the Montana court’s judgment on the issue of guilt must be set aside.

Ill

Mr. Coleman attacks the validity of his convictions for deliberate homicide, aggravated homicide, and forcible rape on the following grounds:

One. The evidence produced at trial was insufficient to convince a rational jury of Mr. Coleman’s connection to the rape and murder of Peggy Lee Harstad. “A black man who has consistently maintained his innocence has been condemned to death, time after time, solely on the uncorroborated and incredible testimony of a white alleged accomplice who purchased his own life with his testimony.” Appellant’s Opening Brief, page 48. In his amended petition for a writ of habeas corpus, Mr. Coleman also challenges the trial court’s failure to rule on his objection to the accomplice’s mental competency to testify at the guilt phase of the trial.
Two. He was denied the effective assistance of counsel. Mr. Coleman as-*1306serte that without his knowledge or consent, his first defense attorney told the trial judge that truth serum teste had revealed that his client was guilty. “[TJhis information must have colored not only the trial court’s view of the nature and extent of Coleman’s guilt, but, when coupled with Coleman’s extensive trial testimony protesting his innocence, must have led the trial court to conclude that Coleman was both a murderer and a perjurer.” Appellant’s Opening Brief, page 23. (emphasis added). See Appellant’s Opening Brief, page 30 n. 1.
Three. Mr. Coleman contends that he “was tried, convicted, and sentenced as a result of pervasive racial discrimination.” Appellant’s Opening Brief page 47 (emphasis added). He argues that the trial judge’s reference to Mr. Coleman as “this black boy” demonstrates racial discrimination compelling reversal of the judgment of conviction of each crime. Appellant’s Opening Brief, page 47.

The majority’s sole response to these constitutional challenges to the validity of the judgment of conviction for aggravated kidnapping, deliberate homicide, and forcible rape is contained in footnote 9 of its opinion. The majority offers the following explanation for its failure to review these colorable constitutional claims concerning the validity of the guilt phase of his trial:

Coleman’s contention that he was prosecuted and sentenced to death, because of race discrimination when the state plea bargained with Nank, a white man, but refused to enter into a plea bargain with Coleman, who is black, does not impact his conviction of deliberate homicide. He would have been convicted upon his offer to plead guilty to this crime in any event.

Thus the majority has chosen to ignore Mr. Coleman’s claim that, notwithstanding his innocence, he was selected for prosecution solely because he is black.

If Mr. Coleman was selected for prosecution as the result of invidious discrimination based on his race, a plea resulting from the state’s violation of his constitutional rights would be tainted and invalid. Contrary to the majority’s conclusion, proof that the prosecution of Mr. Coleman was animated by racial discrimination would clearly “impact his conviction.”

The majority has not cited any authority for its extraordinary assumption that a state prisoner whose offer to plead guilty was rejected, may be denied his right to an evidentiary hearing in order to prove that he was selected for prosecution solely because of the immutable fact that he is black. The fact that a person once offered to plead guilty to avoid the death penalty should not bar him from proving that he was selected for prosecution because of his race, especially in a case where it is alleged that the rejection of his offer is at least prima facie proof of racial bias.

The majority speculates in footnote 9 that if Mr. Coleman had entered a plea of guilty under the circumstances reflected in the record, it would have passed careful constitutional scrutiny. Without exposing its rationale, the majority appears to assume that a plea of guilty, by a person who was the victim of selective prosecution and injected with sodium amytol while in custody, is valid. I cannot agree. To validate a plea under such circumstances would reward outrageous governmental conduct in clear violation of a state prisoner’s right to due process and equal protection.

I recognize that the Supreme Court has held that a trial judge may accept a guilty plea from a person who informs the court that he is innocent but wishes to avoid the extreme penalty. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). There was no claim in Alford, however, that the prisoner had been selected for prosecution because of his race and had received ineffective assistance of counsel. No showing was made in Alford that the plea of guilty was constitutionally invalid on any ground. It should also be noted that the Supreme Court cautioned in Alford that its holding “does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead.” Id. at 38, 91 S.Ct. at 168.

*1307Assuming the truth of Mr. Coleman’s allegations, as we must in this appeal, it would have been improper for the State of Montana to have accepted Mr. Coleman’s plea of guilty if he was selected for prosecution in violation of his federal constitutional rights. Furthermore, the evidence is undisputed that Mr. Coleman’s offer to plead guilty followed an alteration of his memory by the state concerning his participation in. the crimes charged against him as a result of an injection of sodium amytol. Long ago, in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court observed that a confession of guilt that is drug induced would be involuntary. Id. at 307-09, 83 S.Ct. at 754-55. I seriously doubt that any of my colleagues would uphold a guilty plea obtained under such circumstances.

In footnote 9, the majority also states: “Until Coleman is resentenced, we cannot evaluate the merits of his claim of race discrimination based upon the State’s refusal to plea bargain with him as it did Nank.” The majority does not inform us why it cannot “evaluate” the merits of the claim of racial discrimination prior to resen-tencing. We have jurisdiction over this matter under section 2254. The federal constitutional claims are ripe for review. If these claims are valid, the majority has a duty to “evaluate” and invalidate the conviction now. There can be no valid sentence for a conviction based on invidious discrimination.

In the passage quoted in the preceding paragraph, the majority appears to suggest, albeit with delicate subtlety, that Mr. Coleman’s claims of invidious selective prosecution, may possibly survive this appeal if this court is dissatisfied for unexplained reasons with the sentence imposed by the trial court for aggravated kidnapping or the treatment Montana gives to the conviction for that crime1. Does the majority mean by this puzzling comment that Mr. Coleman may return to the district court with a new petition for habeas corpus relief limited to the sentence “other than death” imposed by the Montana trial court upon remand for the crime of aggravated kidnapping? Or, instead, is the majority suggesting that Mr. Coleman may file an untimely petition for a rehearing in this court for a review of the judgment of conviction for aggravated kidnapping limited to the claim of invidious discrimination, if Montana’s treatment of this conviction falls below the majority’s undisclosed expectations? It should also be noted that because the remand is solely for resentenc-ing for aggravated kidnapping, the State of Montana is under no duty, under the majority’s mandate, to “treat” further the judgment of conviction for any of the crimes for which Mr. Coleman stands convicted.

I do not understand the majority’s reluctance to face up to Mr. Coleman’s constitutional attack on the judgment of conviction for aggravated kidnapping, deliberate homicide, and forcible rape in the appeal presently before this court. If Mr. Coleman has stated sufficient facts to show that these convictions were obtained in violation of his constitutional rights, he is entitled to an evidentiary hearing in the district court now. The treatment Montana may give the sentence for aggravated kidnapping upon remand has no bearing on the validity of Mr. Coleman’s challenge to his convictions for aggravated kidnapping, deliberate homicide or forcible rape. Let us assume that upon remand Montana requests and is granted a dismissal of the aggravated kidnapping charge. In that event, has the majority concluded, by its concern over how Montana will “treat” the aggravated kidnapping charge, that Mr. Coleman should spend the rest of his life in prison on the remaining charges, without further federal review, notwithstanding the fact that he has alleged that he is the victim of invidious selective prosecution because he is black, that he received ineffective assistance of counsel at the guilt phase *1308of the trial, and that the evidence supporting his conviction is based on the testimony of an uncorroborated and mentally incompetent accomplice? Mr. Coleman has spent over thirteen years in custody. He is entitled to his freedom now if he can prove the truth of these allegations without regard to Montana’s treatment of the aggravated kidnapping charge.

In footnote 9, the majority attempts to justify its failure to confront Mr. Coleman’s serious constitutional challenges to his convictions with the curious comment that “[tjhere is a strong practical possibility that today’s decision upholding one of Coleman’s principal constitutional arguments will serve ultimately to make it unnecessary for us to consider Coleman’s remaining claims.” Majority Opinion, page 1290 n. 9. Nothing in the record, the many briefs that have been filed in this matter, or the arguments of Mr. Coleman’s counsel support the majority’s speculation that he will abandon his claim that he is an innocent black man victimized by racial discrimination if the sentence imposed for aggravated kidnapping is reversed.2

The majority persists in ignoring the fact that if Mr. Coleman was the victim of invidious selective prosecution, his conviction for aggravated kidnapping is invalid. If so, any sentence, whether life or death, must also be set aside.

The majority has avoided deciding hard constitutional questions properly before it concerning the validity of the convictions and has purported to resolve a sentencing issue it has no jurisdiction to reach if selective prosecution on racial grounds has been demonstrated.

In 1981, Justice Morrison of the Montana Supreme Court made the following comment about this case:

The majority has one salutary aspect. It has finally freed Coleman from the yoke of the state court system and permits him to pursue his claims in federal court. A federal court cannot help but be more receptive to the important questions that Coleman has raised but this court has turned down by wholesale and summary disposition. I cannot conceive that this case will leave a federal court with the abiding conviction that justice was done.

Coleman v. State, 633 P.2d 624, 666 (1981) (Morrison, J., dissenting).

Unfortunately, Justice Morrison was wrong. This case will be returned to Montana by the federal court system without discussing or resolving Mr. Coleman’s claim that his convictions must be set aside because of selective prosecution, ineffectiveness of counsel, and legal insufficiency of the evidence to convince a rational trier of fact of his guilt beyond a reasonable doubt.

I would not want the task of explaining to Mr. Coleman that his federal constitutional challenges to his convictions for aggravated kidnapping, deliberate homicide, and forcible rape will not be reached by this court because “[tjhere is a strong practical possibility” that he will give up his claim that an innocent man was selected for prosecution because he is black in view of the fact that the majority reversed the sentence imposed for aggravated kidnapping. A prisoner who forcefully has proclaimed his innocence for over thirteen years, condemned to be imprisoned for the remainder of his life, might be forgiven if he suppresses his enthusiasm for the majority’s imaginative interpretation of Mr. Coleman’s undisclosed goals in this litigation.

IV

The court’s disposition of this appeal is also unfair to the State of Montana. The majority has reversed the sentence of death for the crime of aggravated kidnapping because, at the trial on the issue of guilt, Mr. Coleman’s defense counsel introduced evidence that his client participated in an uncharged burglary. Instead of ordering that a new trial be conducted so that *1309Montana can attempt to prove, after an error-free trial, that the extreme penalty is warranted, the majority has reversed the sentence of death; ordered a punishment “other than death”; ruled against Mr. Coleman’s challenge to the jury that convicted him; and implicitly affirmed the denial of an evidentiary hearing on his remaining constitutional claims that clearly “impact” on his convictions of each offense. Thus, with the same brushstroke, the majority has denied Mr. Coleman the opportunity to prove that he is entitled to his freedom from the threat of any further incarceration on the aggravated kidnapping charge, not merely a punishment “other than death,” and interfered with Montana’s right, under the police powers expressly reserved to the states by our federal constitution, to impose the death penalty for this offense.

The majority has not explained why it has denied to Montana the opportunity to seek the death penalty upon remand under circumstances free of constitutional error. In footnote 7, the majority expressly declines to reach the question whether a state prisoner who was sentenced under a constitutionally defective statute can receive a death sentence under a law enacted after his conviction. Nevertheless, without explanation or citation to the source of its authority, the majority has decreed that the State of Montana may not again impose the death penalty in this case.

If the majority has silently concluded that a state may not resentence a condemned person under a statute enacted after his or her conviction, I respectfully suggest that this important constitutional issue is deserving of thoughtful discussion and critical analysis. Instead, while the opinion carefully explains in footnote 7 that this issue will not be reached, the majority proceeds without explanation to enter an order that denies ex post facto effect to a death penalty statute. Proper respect for comity and “our federalism” demands that we act with appropriate restraint and sensitivity, and set forth a principled explanation, when we deny to a state the right to follow its own public policy in selecting the appropriáte punishment that should be imposed for a violation of its criminal code. See Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980) (“one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, ... the length of the sentence actually imposed is purely a matter of legislative prerogative.”) I regret that the majority has declined to offer any justification for its casual treatment of this grave constitutional question.

CONCLUSION

Once again, Mr. Coleman has been denied a decision on the merits of his serious allegations of racial discrimination against the State of Montana in selecting him for prosecution of aggravated kidnapping, deliberate homicide, and forcible rape. After thirteen years in custody, Mr. Coleman has the right to be told now whether the majority believes that he is entitled to an eviden-tiary hearing to test the constitutional validity of the guilt phase of his trial.

The Supreme Court has instructed federal courts that colorable claims of constitutional error must be given careful scrutiny in a capital case. Zant, 462 U.S. at 885, 103 S.Ct. at 2747. Inexplicably, the majority has concluded that it has no duty whatsoever to scrutinize Mr. Coleman’s claims of selective prosecution against an innocent black man, ineffectiveness of counsel at the guilt phase of the trial proceedings, and a denial of due process based on the legal insufficiency of the evidence to support his conviction.

The majority appears to have concluded that Mr. Coleman will be willing to abandon his claim that he was convicted of deliberate homicide and forcible rape in violation of several of his constitutional rights in view of its determination that Montana cannot exact the death penalty in this case. I have read the briefs and heard the oral argument in this matter. I can find no clue that Mr. Coleman’s thirteen-year challenge to his conviction of each offense has been a clever tactical ploy and that his only goal has been to avoid the death penalty.

Because this is an en banc proceeding, further review of Mr. Coleman’s claims be*1310fore this court in this appeal is unlikely. If the majority has misjudged Mr. Coleman’s intentions, he must now seek relief from the United States Supreme Court. If so, the Supreme Court undoubtedly will summarily remand this matter with directions that we exercise our appellate responsibility to decide whether Mr. Coleman has stated sufficient facts which, if true, require that the judgment of conviction be set aside because he is the victim of selective prosecution, he was ineffectively represented at the guilt phase of his trial and the evidence of his guilt is legally insufficient.

Montana may also elect to seek review of the majority’s conclusion that it can vacate a sentence of death and bar its reimposition, without determining the constitutionality of Montana’s capital punishment statute or offering an explanation of the source of its power to limit the state court’s discretion.

The unprecedented procedure adopted by the majority for this appeal has denied Mr. Coleman his right under section 2254 to a review of his federal constitutional challenges to the guilt phase of his trial. The majority has also exceeded its limited jurisdiction by purporting to deny to Montana its right to select the appropriate punishment, consistent with the eighth amendment, for violation of its laws. Because I am persuaded that we cannot ignore any of the colorable constitutional challenges to Mr. Coleman’s convictions presented in this appeal in the manner suggested by my colleagues, I respectfully decline to join in their number.

I would first determine whether each of the convictions should stand before discussing the validity of sentences imposed by the court. If each of the convictions must be reversed because of invidious selective prosecution, ineffectiveness of counsel, or the legal insufficiency of the evidence, the issue of punishment for any offense becomes moot, and a discussion thereof becomes advisory and beyond our limited jurisdiction.

. The majority appears to have affirmed sub silentio the district court’s dismissal of his claims that he was denied effective counsel and that he was convicted in clear violation of Montana law on the uncorroborated testimony of a mentally incompetent accomplice. The majority does not suggest that it will evaluate the merits of these claims after Mr. Coleman is resentenced.

. If the majority's efforts at mind reading prove to be accurate, it may have discovered a calendar clearing procedure I will label "appellate sentence bargaining," in which a state prisoner is induced to abandon meritorious federal constitutional challenges to the guilt phase of the trial in exchange for a sentence “other than death.”