Oken v. Warden, MSP

United States Court of Appeals
For the First Circuit

No. 99-1829

STEVEN H. OKEN,

Petitioner, Appellant,

v.

WARDEN, MSP; WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Robert L. Sheketoff, with whom Sheketoff & Homan
were on brief, for appellant.
 Joseph A. Wannemacher, Assistant Attorney General,
with whom Andrew Ketterer, Attorney General, and Charles K.
Leadbetter, Assistant Attorney General of Counsel, were on
brief for appellees.

December 1, 2000

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 LYNCH, Circuit Judge. This case presents an issue

of first impression: whether state post-conviction review

proceedings must comply with certain procedures under the

Confrontation and Due Process clauses of the United States

Constitution. Petitioner Steven Oken was sentenced in Maine to

life imprisonment for murdering a Maine woman. He was

sentenced to death in Maryland for murdering a woman there

(and was also convicted and sentenced to life imprisonment for

murdering another woman there). In imposing the death

sentence on him in Maryland, the jury was told that he had

been convicted of murder in Maine and sentenced to life

imprisonment for that crime.

This case concerns one step in an apparent effort by

Oken to undo the Maine murder conviction. The Maine courts

rejected his direct appeal of the conviction, and later his

post-conviction attack which argued that he had been denied

effective assistance of counsel when he entered his Alford

plea to the Maine murder charge. Oken argued he had been told

by his counsel that his Maine plea could not be used in

Maryland. Oken then filed a federal habeas corpus petition.

The essence of his argument is that his constitutional rights

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were abridged during the post-conviction proceedings in the

Maine courts when, imprisoned in Maryland, he was not brought

back to Maine to be physically present to confront his former

lawyer on the ineffective assistance issue, and because the

other procedures used by Maine to protect his rights were

inadequate.

Federal habeas review of state proceedings is

narrow, particularly in the aftermath of the Antiterrorism and

Effective Death Penalty Act ("AEDPA").1 The district court

denied his habeas petition. We affirm that decision. Given

that this case involves a man's life, we choose to affirm not

for reasons having to do with the narrowness of federal habeas

review, but because we believe that Oken's constitutional

1
See Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(amending 28 U.S.C. §§ 2244, 2253-55 and adding §§ 2261-66).
Following the enactment of AEDPA, "[a]n application for a writ
of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim -- (1) resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).

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rights were not violated at all. Accordingly, there is no

basis for federal habeas relief.

The question before us is not whether the Maine

state court was required to grant Oken an evidentiary hearing

on his petition for post-conviction relief. The state court

did so. It is also not whether the state court was required

to permit Oken to testify as part of the evidentiary hearing.

The state court did that as well. Rather, the question is

whether the Constitution compelled the state court to have

Oken physically present in post-conviction proceedings: (1)

during the examination of one of Oken's two former attorneys,

whose assistance Oken was challenging as ineffective, when

Oken was given the transcript of that testimony and consulted

with his new counsel before the later cross-examination of

that former attorney, and (2) to hear Oken's own testimony in

person rather than by deposition testimony.

We hold there was no such constitutional

requirement. This is so even though the state post-conviction

proceeding was the first occasion and opportunity for Oken to

"confront" the witness, Oken's former attorney. In this post-

conviction context, we think the question turns on the due

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process test of fundamental fairness, and the procedures used

in the Maine post-conviction proceeding were fundamentally

fair.

I.

Steven Oken sexually assaulted, tortured, and then

murdered Dawn Garvin in Baltimore County, Maryland on November

1, 1987. He sexually assaulted and murdered his sister-in-

law, Patricia Hirt, also in Baltimore County, about two weeks

later. Oken then traveled north to Kittery, Maine, where, on

the evening of November 16, 1987, he killed Lori Ward, a clerk

at a motel where he had stopped. Oken was taken into custody

in Freeport, Maine, on the day after the Ward murder and

charged with murder, armed robbery, and theft. Oken was later

charged by the Maryland authorities with the two Baltimore

County murders. Oken retained Baltimore attorney Benjamin

Lipsitz to represent him on the Maryland and Maine charges,

and also retained Portland, Maine attorney Richard Emerson to

represent him on the Maine charges.

On April 21, 1989, Oken entered a conditional plea

of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25

(1970), to all of the Maine charges. At that time, two murder

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charges were pending against Oken in Maryland. After his

conditional plea2 on the Maine charges was accepted, Oken was

sentenced to concurrent terms of life imprisonment on the

Maine murder charge, twenty years on the robbery charge, and

five years on the theft charge. Oken then appealed the denial

of his motion to suppress evidence obtained during a

warrantless search of Oken's Kittery hotel room. That appeal

was denied, see State v. Oken, 569 A.2d 1218, 1221 (Me. 1990),

and the life sentence was also affirmed.3 Oken was

represented throughout the Maine criminal proceeding by

Lipsitz and Emerson, and Emerson continued to represent Oken

in his direct appeal of the denial of the suppression motion.

In October 1989, the Governors of Maine and Maryland

agreed to return Oken to Maryland to stand trial on the

Maryland charges, notwithstanding the Interstate Agreement on

Detainers ("IAD"). Oken was tried on the first Maryland

murder charge and found guilty.4 During the penalty phase of

2
The conditional plea allowed Oken to appeal the denial of his
suppression motion.
3
Maine does not have the death penalty.
4
Oken was also convicted of first degree sexual assault,
burglary, and use of a handgun during a violent crime. He was

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this proceeding, the jury, which had been informed of the

Maine sentence, sentenced Oken to death. Oken pled guilty to

the second Maryland murder charge and was sentenced to life

imprisonment for that crime. His Maryland appeals were

unsuccessful. See Oken v. State, 612 A.2d 258 (Md. 1992),

cert. denied, 507 U.S. 931 (1993). Oken was represented

throughout these Maryland proceedings by Lipsitz.

In 1991, while incarcerated in Maryland, Oken sought

post-conviction relief from the Maine conviction in Maine

Superior Court. Oken alleged that he had received ineffective

assistance of counsel from Lipsitz and Emerson in that these

attorneys assured him that entering an Alford plea to the

Maine charges would insulate him from a death sentence in

Maryland since, under the IAD, any sentence imposed in Maine

must be served before execution of a Maryland sentence. Oken

also claimed that his attorneys advised him that by entering

such a plea, the conviction could not be considered during any

Maryland proceedings, either at trial or during sentencing.

Additionally, Oken alleged that his counsel advised him that

acquitted of robbery.

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the maximum sentence he would receive for his Alford plea

would be sixty years. Oken further claimed that had he known

that these assurances were inaccurate, he would not have given

up his right to a jury trial in Maine by entering a plea.

Oken was represented by court-appointed counsel different from

the attorneys who had represented him previously in the Maine

criminal proceedings.

In 1993, Oken moved in the Maine post-conviction

proceedings for a writ of habeas corpus ad testificandum

directing that he be transported from Maryland to Maine for

the post-conviction hearing. The court declined to issue the

writ,5 but did authorize depositions of Oken and others in

Maryland. Oken and Lipsitz, the Maryland attorney who

represented him in Maine, were deposed in Maryland on June 23,

1993. Oken was present and represented by counsel during

Lipsitz's deposition. Lipsitz was also present at Oken's

5
At the time, Oken was under the legal and physical custody
of the State of Maryland. In his brief to this court, Oken does not
indicate the source of authority that would have empowered the Maine
post-conviction court to order that Oken be produced at the hearing.

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deposition. Oken's father, mother, and sister were also

deposed in Maryland, but not in Oken's presence.6

In June 1995, the court denied Oken's renewed motion

seeking a writ of habeas corpus ad testificandum. An

evidentiary hearing was held in Maine in Oken's absence, and

over his objection, on June 7, 1995. Oken was represented by

counsel at the hearing, and the court ordered that a

transcript of the hearing be prepared. At the hearing, the

court heard testimony from three witnesses: the Maine attorney

(Emerson) who represented Oken when he entered the Alford

plea; Dr. Susan Righthand of the Maine Forensic Service; and

Oken's mother. Transcripts of the depositions of Oken, his

sister, and his Maryland attorney (Lipsitz) were admitted into

evidence, as were the affidavits of Thomas Sanders, another

Maryland attorney, and Dr. Henry Payson, a psychiatric expert

retained by Oken.

After traveling to Maryland to consult with Oken,

Oken's post-conviction attorney recalled Emerson for further

cross-examination at a second hearing on April 2, 1996. This

6
Oken's mother and sister had been present when Oken discussed
with his attorneys the possibility of entering a guilty plea to the
Maine charges.

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hearing was also held in Oken's absence and over his

objection. Again, a transcript was made of the hearing.

After reviewing the transcripts and evidence with his post-

conviction attorney, Oken was deposed again in Maryland on

June 17, 1996. Oken's counsel and Oken personally then

submitted a second round of briefs and other materials to the

court.

The superior court denied the petition July 15,

1997. First, characterizing Oken's former Maine attorney as a

"credible, competent, and compelling witness to the events

surrounding Oken's plea," the court found that Oken's former

attorneys did not guarantee Oken that he would serve his

entire sentence in Maine before being returned to Maryland.

The court also found that Oken was informed of the risk that

the IAD would be circumvented by an executive agreement, thus

allowing Oken to be returned to Maryland for trial and

execution of any sentence imposed after trial. Second, the

court rejected Oken's allegation that his attorneys ever

advised him that his Alford plea to the Maine charges could

not be considered in any subsequent Maryland proceedings,

either at trial or sentencing. Rather, the court found that

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the advice to enter an Alford plea was a legitimate attempt to

minimize the impact of a Maine conviction on subsequent

proceedings in Maryland. Third, the court did not find

credible Oken's contention that his counsel had promised him

that he would receive a sentence in Maine not exceeding sixty

years. Moreover, the court concluded that Oken would not have

insisted on going to trial in the absence of the alleged

erroneous advice from counsel.

Oken then filed a notice of appeal in the Maine

Supreme Judicial Court ("SJC"). The SJC granted a certificate

of probable cause permitting Oken to proceed with an appeal on

the sole issue of his right to be present at the post-

conviction evidentiary hearing. In denying Oken's appeal, the

SJC assumed arguendo that the Confrontation Clause of the

Sixth Amendment applied to a post-conviction review proceeding

but concluded that Oken's Sixth Amendment rights were not

violated since, inter alia, he was permitted to consult with

his attorney, to review the hearing transcripts of the

witnesses in Maine, and, through counsel, to recall and

further cross-examine those witnesses. See Oken v. State, 716

A.2d 1007, 1010-11 (Me. 1998). The court also held that

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Oken's rights under the Due Process Clause were not violated

since the procedures used in the post-conviction hearing were

fundamentally fair. Id. at 1011.7 Oken's petition for writ

of certiorari was denied by the United States Supreme Court.

See Oken v. Maine, 525 U.S. 1004 (1998).8

Oken, appearing pro se, filed this petition for writ

of habeas corpus in the United States District Court for the

District of Maine on September 24, 1998. The petition was

referred to a magistrate judge who, on March 17, 1999, issued

a decision recommending that the petition be denied without an

7
The SJC also noted that while Oken had disavowed a procedural
due process claim, such a claim would fail. See id. at 1011 n.10.
8
Oken also sought post-conviction relief in Maryland, raising
some of the same ineffective assistance of counsel claims raised in the
Maine post-conviction proceedings, namely, the alleged promises made to
Oken in connection with his Maine Alford plea. The Maryland courts
rejected those claims. See Oken v. State, 681 A.2d 30, 49-51 (Md.
1996), cert. denied, 519 U.S. 1079 (1997). Specifically, the judge in
the Maryland post-conviction proceeding saw and heard the witnesses
(including Oken) testify, assessed their credibility, and believed the
testimony of trial counsel (Lipsitz) over that of Oken with respect to
Oken's claim of promises made to him concerning the effect of his
Alford plea on any Maryland proceedings. See id. at 51. Oken filed a
federal post-conviction petition in the United States District Court
for the District of Maryland. That petition has been denied, see Oken
v. Nuth, 64 F. Supp. 2d 488 (D. Md. 1999), and that denial has been
affirmed on appeal by the Fourth Circuit, see Oken v. Corcoran, 220
F.3d 259, 270 (4th Cir. 2000) (finding no ineffective assistance of
counsel as to Oken's Alford plea).

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evidentiary hearing.9 Oken filed objections to the

recommended decision.

On June 8, 1999, the district court issued an order

adopting the magistrate judge's recommended decision and

denying Oken's habeas petition. Oken filed a notice of

appeal. The district court issued a certificate of

appealability, which has been interpreted by this court to

embrace a Confrontation Clause and Due Process Clause

challenge to the Maine state court's decision to conduct an

evidentiary hearing in Oken's absence on Oken's post-

conviction petition. Counsel was appointed to represent Oken.

II.

The question before us is a narrow one: is there

anything in the U.S. Constitution which compels a state in its

post-conviction proceedings to require the presence of the

prisoner at hearings under these circumstances? The SJC

judged the question largely in the terms described in Snyder

v. Massachusetts, 291 U.S. 97 (1934), overruled on other

9
The magistrate judge concluded that the decision of the SJC
was neither contrary to clearly established federal law nor involved an
unreasonable application of any such law, thus precluding federal
habeas relief under 28 U.S.C. § 2254(d)(1).

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grounds, Malloy v. Hogan, 378 U.S. 1 (1964).10 In Snyder, which

was on appeal, the Court rejected the defendant's claim that the Due

Process Clause prohibited his exclusion from a view of the crime

scene by the jury. See id. at 116-18. The test was "whether in

the particular conditions exhibited by the record the enforced

absence of the defendant is so flagrantly unjust that the

Constitution of the United States steps in to forbid it." Id.

at 115. We conclude here that nothing in the Constitution

requires a standard more favorable than that of fundamental

fairness to Oken in the state post-conviction proceeding.

A. Confrontation Clause and Sixth Amendment Rights

Oken argues that the Confrontation Clause of the

Sixth Amendment guaranteed his right to be present at the

Maine state post-conviction hearing.11 We disagree. Oken did

10
In Malloy, the Court rejected the proposition, discussed in
dicta in Snyder, that the Fifth Amendment privilege against self-
incrimination did not apply to the States. See Malloy, 378 U.S. at 2
n.1. In Duncan v. Louisiana, 391 U.S. 145, 154-55 (1968), the Court
rejected other dicta in Snyder asserting that the right to a jury trial
in serious criminal cases may be dispensed with by the States.
11
Oken argues that his right to be present is based on both the
Confrontation and Due Process clauses but does not engage in a separate
analysis under each of those clauses. Because of distinctions between
the Confrontation and Due Process clauses, we will discuss those
constitutional arguments separately.

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not have a constitutional right under these circumstances to testify

in person or to confront attorney Emerson in person.

1. Right to Confront Emerson

The Sixth Amendment provides that in all criminal

prosecutions, the accused has the right "to be confronted with the

witnesses against him." U.S. Const. amend VI. A "primary interest

secured [by the Confrontation Clause] is the right of cross-

examination." Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quoting

Douglas v. Alabama, 380 U.S. 415, 418 (1965)). A defendant's right

of confrontation, however, goes beyond the right to cross examine,

and also includes the right to confront one's accusers face-to-face.

See Coy v. Iowa, 487 U.S. 1012, 1019-20 (1988); Pennsylvania v.

Ritchie, 480 U.S. 39, 51 (1987). A witness "'may feel quite

differently when he has to repeat his story looking at the man whom

he will harm greatly by distorting or mistaking the facts. He can

now understand what sort of human being that man is.'" Coy, 487 U.S.

at 1019 (quoting Z. Chafee, The Blessings of Liberty 35 (1956)).

Thus, the right to face-to-face confrontation, like the right of

cross-examination, is critical for ensuring "the integrity of the

fact-finding process." Id. at 1020 (quoting Stincer, 482 U.S. at

736). Oken argues that his exclusion from the Maine post-

conviction proceeding implicates his rights under the Confrontation

Clause. However, Oken points to no authority (and we likewise find

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none) that directly supports the extension to state (or federal)

post-conviction proceedings of a criminal defendant's constitutional

right to personally confront one's accusers. Cf. United States v.

Hayman, 342 U.S. 205, 222-23 (1952) ("Unlike the criminal trial where

the guilt of the defendant is in issue and his presence is required

by the Sixth Amendment, a proceeding under Section 2255 is an

independent and collateral inquiry into the validity of the

conviction. Whether the prisoner should be produced depends upon the

issues raised by the particular case."); Burgess v. King, 130 F.2d

761, 762 (8th Cir. 1942) ("The constitutional right of an accused to

be confronted with the witnesses against him is applicable only to

criminal proceedings, and hence, it can not be claimed that the

petitioner had the right of confrontation [in post-conviction

proceedings]."); Larry W. Yackle, Postconviction Remedies § 136, at

514 (1981 and Supp. 2000) ("The persistent argument that habeas

corpus petitioners have a constitutional right to be present at

proceedings in federal court has been roundly rejected."); cf. also

Price v. Johnson, 334 U.S. 266, 285-86 (1948) (no constitutional

right of habeas petitioner to argue case before an appellate court or

be present in the courtroom; contrasting this with the

"constitutional prerogative of being present in person at each

significant stage of a felony prosecution"), overruled on other

grounds by McCleskey v. Zant, 499 U.S. 467 (1991). State courts have

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also rejected the argument that the Confrontation Clause applies to

state post-conviction proceedings. See Leisure v. State, 828 S.W.2d

872, 878 (Mo. 1998); Little v. Rhay, 413 P.2d 15, 19-20 (Wash. 1966)

("use of affidavits in habeas corpus proceedings is not improper").

Oken maintains that the Supreme Court's decision in

Kentucky v. Stincer, 482 U.S. 730 (1987), compels a different result

here. We disagree. In Stincer, the Court held that the

exclusion of a defendant in a sexual abuse prosecution from a

hearing to determine the competency of two child witnesses did

not violate his rights under the Confrontation or Due Process

clauses. The Court stated that the question under the

Confrontation Clause was "whether excluding the defendant from

the [competency] hearing interferes with his opportunity for

effective cross-examination." Id. at 740. The Court

concluded that because the defendant had the opportunity for

full and effective cross-examination of the two witnesses

during trial, and because the competency hearing was limited

to matters unrelated to the basic issues at trial, the

defendant's Confrontation Clause rights had not been violated.

See id. at 740-44. Stincer, however, concerned a defendant's

Confrontation Clause rights at trial, and Oken offers no

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authority for extending those rights to state post-conviction

proceedings. Such proceedings have consistently been deemed

to be civil in nature. See, e.g., Hilton v. Braunskill, 481

U.S. 770, 775-76 (1987); Browder v. Director, Illinois Dept.

of Corrections, 434 U.S. 257, 269 (1978); Fay v. Noia, 372

U.S. 391, 423-24 (1963). Indeed, the Court has referred to

the right of confrontation as basically a "trial right."

See Stincer, 482 U.S. at 738 n.9 (quoting Barber v. Page, 390

U.S. 719, 725 (1968)).12 Moreover, since Stincer, at least one

court of appeals has held that the Confrontation Clause does

not apply to hearings on new trial motions. See United States

v. Boyd, 131 F.3d 951, 954 (11th Cir. 1997) ("While the

evidentiary hearing may have resulted in a new trial for [the

defendant], nothing said or done at the evidentiary hearing

could have affected the reliability of [his] original trial,

12
Similarly, other fundamental trial rights, such as a criminal
defendant's Sixth Amendment right to counsel, see Gideon v. Wainwright,
372 U.S. 335 (1963), do not appear to be mandated by the Constitution
in collateral habeas proceedings, see Pennsylvania v. Finley, 481 U.S.
551, 557 (1987) (no right to counsel in state post-conviction
proceedings). But see Coleman v. Thompson 501 U.S. 722, 755-56
(1991) (recognizing that there might be a right to counsel on
state habeas where it is the first time a petitioner can raise
a particular claim, such as a claim of ineffective assistance of
trial counsel).

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which had been concluded."). We thus conclude that the

Confrontation Clause does not apply to state post-conviction

proceedings.

2. Right to Testify in Person at the Post-Conviction Hearing

As Oken's claim that he was not present at the post-

conviction hearing also encompasses the claim that he was not

permitted to testify in person, we briefly address that aspect of his

claim. The Sixth Amendment also provides that the accused in a

criminal trial has the right to "compulsory process for obtaining

witnesses in his favor." U.S. Const. amend. VI. This includes not

only a defendant's right to call witnesses in his favor but also his

"right to testify himself, should he decide it is in his favor to do

so." Rock v. Arkansas, 483 U.S. 44, 52 (1987).13 Indeed, in many

cases the defendant himself may be the most important witness for the

defense. Id. However, for the same reasons that the Confrontation

Clause does not apply to post-conviction proceedings, we also

13
A criminal defendant's right to testify on his own
behalf is also based on the Fifth Amendment privilege against
self-incrimination and on the Due Process Clause. See id. at
51.

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conclude that a defendant does not have a constitutional right to

testify in person at post-conviction proceedings.14

B. Due Process Clause

Oken also asserts that his absence from the state

post-conviction hearing violated his rights under the Due

Process Clause.

Maine, as respondent, takes the position that there

is some constitutional protection for inmates required in

state post-conviction proceedings. We thus need not address

the complicated series of questions that would arise if Maine

had taken a different position here.15

Oken argues that the SJC erred in not applying the

14
Had Oken been prohibited from being present at an important
stage of his criminal proceeding, we do not doubt that this would have
violated his constitutional rights. See, e.g., Rock, supra. Indeed,
we have held that even in certain non-criminal but non-collateral
proceedings where an individual's liberty is at stake, such as the
involuntary commitment of an inmate, the right to be present is
grounded in constitutional concerns. See United States v. Frierson,
208 F.3d 282, 288 (1st Cir. 2000) (inmate's statutory right to be
present at commitment hearing grounded in constitutional due process).

15
Although it has not been decided conclusively,
existing authority suggests that state post-conviction
proceedings must comport with the fundamental fairness mandated
by the Due Process Clause. See Finley, 481 U.S. at 557.

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Stincer due process standard to his exclusion from the post-

conviction hearing on his ineffective assistance claim. Under

Stincer, a defendant "is guaranteed the right to be present at

any stage of the criminal proceeding that is critical to its

outcome if his presence would contribute to the fairness of

the procedure." Stincer, 482 U.S. at 745.16 The short answer

is that post-conviction collateral attack proceedings are not

"criminal proceedings" at all. So, by its own terms, Stincer

is not applicable to the Maine proceeding at issue here.

Decisions under the federal statutes providing for review

of both state and federal convictions also undercut Oken's assertion

of a constitutional right to be physically present during the Maine

post-conviction hearing. To be sure, the writ of habeas corpus

traditionally directed the person with custody over the petitioner to

produce him before the court so that it could inquire into the

16
While the Confrontation Clause of the Sixth Amendment
encompasses testimonial aspects of a criminal proceeding, see
supra, the Due Process Clause applies more broadly to
testimonial as well as non-testimonial aspects of such
proceeding. See Stincer, 482 U.S. at 745 ("[E]ven in situations
where the defendant is not actually confronting witnesses or
evidence against him, he has a due process right 'to be present
in his own person whenever his presence has a relation,
reasonably substantial, to the fulness of his opportunity to
defend against the charge.'") (quoting Snyder, 291 U.S. at 105-
06).

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legality of the detention. See Developments in the Law -- Federal

Habeas Corpus, 83 Harv. L. Rev. 1038, 1189 (1970); see 28 U.S.C. §

2243; Walker v. Johnson, 312 U.S. 275, 285-86 (1941). But courts

have upheld the validity of "paper hearings" even under § 2254.

Livingston v. Johnson, 107 F.3d 297, 303 (5th Cir. 1997) (although

some of petitioner's witnesses "appeared" only on paper, state court

afforded him full and fair hearing within the meaning of pre-AEDPA §

2254(d)); Sawyers v. Collins, 986 F.2d 1493, 1504-05 (5th Cir. 1993)

(assessment of credibility of witnesses based on affidavits afforded

petitioner a full and fair hearing).

Cases decided under the post-conviction statute for

federal prisoners demonstrate even more clearly the absence of an

absolute constitutional right of the prisoner to be physically

present at post-conviction proceedings. Section 2255 provides

that "[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served upon

the United States attorney, grant a prompt hearing thereon,

determine the issues and make findings of fact and conclusions

of law with respect thereto." Id. However, the statute also

states that "[a] court may entertain and determine such motion

without requiring the production of the prisoner at the

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hearing." Id. The Supreme Court has repeatedly held that

notice and the opportunity to present evidence in a § 2255

proceeding does not always require the physical presence of

the petitioner. In Machibroda v. United States, 368 U.S. 487

(1962), the Court reversed the district court's denial without

a hearing of a petitioner's § 2255 claim where there were

controverted facts as to the voluntariness of the petitioner's

guilty plea. Id. at 494. The Court, however, instructed that

on remand the district court could determine whether the

petition could be appropriately disposed of without the

presence of the petitioner at the hearing. Id. at 495-96; see

also Sanders v. United States, 373 U.S. 1, 20-21 ("Not every

colorable allegation entitles a federal prisoner to a trip to

the sentencing court"; it is within district court's

discretion on remand to determine whether petitioner's failure

to claim mental incompetency in his first § 2255 motion was an

abuse of the motion remedy disentitling him to a hearing on

the merits).

Petitioner's reliance on Hayman, supra, is

misplaced. In Hayman, a § 2255 case alleging ineffective

assistance of counsel, the Court held that the district court

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erred in making findings on controverted facts relating to the

prisoner's own knowledge without notice to the prisoner and

without him being present. See 342 U.S. at 220. The Court,

however, based its holding on the federal habeas statute, and

not on any constitutional requirement. Id. at 220-21.

Moreover, as discussed above, the Court rejected any notion of

a per se right to be present under § 2255 in subsequent

decisions such as Machibroda and Sanders.

Nevertheless, we do assume that due process requirements

of fundamental fairness apply to state post-conviction proceedings,

and to that issue we now turn. Cf. Ake v. Oklahoma, 470 U.S. 68,

76-77 (1985) ("the Fourteenth Amendment's due process

guarantee of fundamental fairness" requires the state to take

steps to assure that criminal defendants have a fair

opportunity to present their defense); Ford v. Wainwright 477

U.S. 399, 424 (1986) (Powell, J., concurring in part and

concurring in the judgment) (competency determinations prior

to execution must comport with fundamental fairness required

by the Due Process Clause); Snyder, 291 U.S. at 116 ("Due

Process of law requires that the proceedings shall be fair,

but fairness is a relative, not absolute concept.").

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 There was nothing fundamentally unfair about the

procedures used here by the Maine post-conviction court.

First, the procedures enabled Oken to assist his post-

conviction counsel in examining the two attorneys (Lipsitz and

Emerson) who had represented him in the Maine murder case.

Indeed, as to Lipsitz, Oken was present for the examination by

deposition in Maryland. Second, nothing about the procedures

significantly undercut Oken's ability to assist his counsel.

Oken had the benefit of reading the transcript of the first

hearing before Emerson was recalled for further cross-

examination. As the SJC pointed out, this was more time to

prepare cross-examination than would have otherwise been

available to Oken at a live hearing. Also, Oken had available

transcripts of Emerson's testimony on each day of the hearing

in making his final submissions to the court. Third, Oken was

able to testify himself by deposition in response to the

transcript of Emerson's testimony. Fourth, nothing about the

procedures involved was one-sided or biased so as to raise

questions about the integrity or truth-finding function of the

process followed. Indeed, Oken was represented by counsel at

every stage of the proceeding. Fifth, the detriment to Oken

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from these procedures was not so momentous as to be

fundamentally unfair. Oken says he was denied the ability to

look attorney Emerson in the eye, that he lost the spontaneity

and thus the impact of immediate cross-examination, and that

he lost the ability to have the state court determine his

credibility by viewing him in person. In the trial setting,

when witnesses are being examined on factual matters, these

detriments to a defendant are weighed differently under the

Confrontation Clause, see Coy, 487 U.S. at 1019-20

(Confrontation Clause protects defendant's right to physically

face those who testify against him and the right to conduct

cross-examination), the Compulsory Process Clause, see Rock,

483 U.S. at 52 (right to call witnesses to testify, including

the defendant himself), the Fifth Amendment privilege against

self-incrimination, see id. ("opportunity to testify is . . .

a necessary corollary to the Fifth Amendment's guarantee

against compelled testimony"), and the Due Process Clause, see

Stincer, 482 U.S. at 745 (defendant "is guaranteed the right

to be present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to

the fairness of the procedure"). These detriments deserve

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less weight in the post-conviction context, not because they

are unimportant, but because there the proceeding is

collateral and a defendant does not stand accused and presumed

innocent. Here, Oken has been found guilty, and the questions

on the Maine post-conviction challenge do not go to guilt or

innocence. Indeed, Oken makes no claim of actual innocence

here. Cf. Schlup v. Delo, 513 U.S. 298, 324-25 (1995) ("[T]he

individual interest in avoiding injustice is most compelling in the

context of actual innocence. The quintessential miscarriage of

justice is the execution of a person who is entirely innocent.").17

In sum, the procedures used were not fundamentally

unfair and, therefore, did not violate Oken's constitutional

rights in the Maine post-conviction proceeding. There may be

situations, on other facts, where fundamental fairness

17
To the extent relevant, we also note the interests of
the government on the other side. Cf. Ake, 470 U.S. at 77
(balancing factors in determining whether to require a state to
provide an indigent defendant with access to competent
psychiatric assistance in preparing the defense). Transporting
Oken to Maine would involve delay. It would pose some security
risk of escape of a three-time murderer. It would also involve
added expense. Moreover, the potential for false claims and
deliberate delay in this context is obviously enormous. Cf.
Ford, 477 U.S. at 429 (O'Connor, J., concurring in part and
dissenting in part) (discussing why the Constitution does not
mandate "the full panoply of trial-type procedures" to determine
whether prisoners facing execution are sane).

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requires a prisoner's physical presence at state post-

conviction proceedings on an issue which could not have been

raised a trial, but this is not one of them.

III.

The decision of the district court denying Oken's

habeas corpus petition is affirmed.

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