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).
-15-
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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