Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 613 (9th Cir. 1989)

John Lee LAYTON, Petitioner-Appellant,v.H.L. WHITLEY, et al., Respondents-Appellees.

No. 88-1512.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 15, 1988.Decided Jan. 20, 1989.

Before GOODWIN, Chief Judge, and SNEED and HUG, Circuit Judges.


John Lee Layton, who is proceeding pro se and in forma pauperis, appeals the denial of his petition for writ of habeas corpus.

When the events that first gave rise to these proceedings occurred, Layton, and his fellow prisoner, Edward D. Eckert, were confined in Nevada State Prison. They were tried for an assault on another inmate, Ronald Dean Smith. Smith testified that Eckert and Layton had lured him into an abandoned building, and there hanged him, threatened him with a prison-made knife, and struck him about the face. As a result of this violence, Smith became unconscious and was not revived until correctional officers and medical attendants arrived on the scene. He required emergency first aid and hospitalization.

The first defense witness was Eckert, who recounted his version of the events. In his testimony, he stated that Layton had not assisted him, and he repeatedly referred to an unnamed "partner" who had participated in the assault. On the basis of this testimony, the state requested a bench conference, and thereafter the jury was excused. In the course of the proceedings outside the jury's presence, the court and counsel discussed the potential legal ramifications should Eckert fail to disclose the identity of his "partner" on cross-examination. A brief voir dire of Eckert followed, during which he continued to decline to reveal the identity of the "partner." Eckert was informed of the consequences of the nondisclosure, and he requested and was granted an opportunity to consider the alternatives and impact of the form of his testimony.

The court reconvened the following day, still outside the presence of the jury. During this hearing, Eckert was again requested to disclose the identity of the "partner," and he again refused. Following this testimony, counsel presented oral argument on the issue and the district court ruled that the refusal to disclose the identity of the "partner" effectively precluded the state from cross-examining the witness and prevented a meaningful probe into the truthfulness of Eckert's version of the facts. The court held further that under the circumstances of the case, the only efficacious sanction was to strike Eckert's selective testimony. Finally, the court concluded that Layton had a right to call Eckert as a defense witness, but if Eckert chose again not to testify fully, a motion to strike would likewise be appropriate.

Subsequently, the defense called a number of witnesses, some of whom testified that Layton was elsewhere during the time of the assault on Smith, thus tending to bolster Layton's alibi defense. Layton did not take the stand to testify in his own behalf, and he did not call Eckert as a defense witness, a choice that may have been guided by the earlier ruling.

The jury returned verdicts of guilty on both counts in the criminal information.

In seeking habeas corpus relief, Layton has continually asserted that his sixth and fourteenth amendment rights were violated when the state trial court struck Eckert's testimony. He correctly cites Washington v. Texas, 388 U.S. 14, 19 (1967), for the proposition that the right to call witnesses is an important component of a defendant's fundamental right to a fair trial. The right to call witnesses is not, however, unlimited.

United States v. Panza, 612 F.2d 432 (9th Cir. 1979), cert. denied, 447 U.S. 925 & 926 (1980), relied upon by the district court, teaches that a witness's privilege against self-incrimination must be weighed against the goal of the judicial process to probe the truth of the matters testified to and the veracity of the witness. See also United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980); United States v. Williams, 626 F.2d 697, 702 (9th Cir. 1980). Even where a witness asserts a valid privilege against self-incrimination on cross-examination, striking testimony is appropriate if the invocation of the privilege precludes inquiry into direct and not merely collateral matters concerning the direct examination testimony. See Seifert, 648 F.2d at 561; Williams, 626 F.2d at 702.

In Panza, we upheld the convictions of the two appellants, who argued on appeal that the district court had violated their constitutional rights by striking the testimony of the one of them who testified. While testifying at trial, that defendant had refused to answer questions on cross-examination regarding the identity of persons involved in the events surrounding the alleged crime. The trial court informed the defendant that his continued refusal to answer questions on cross-examination was not privileged, and that if he persisted in his refusal, the court would order his entire testimony stricken. The defendant persisted, and his testimony was stricken.

In upholding the district court's action, the Ninth Circuit stressed that by testifying in his own behalf, the appellant had waived his fifth amendment privilege against self-incrimination with respect to all relevant matters covered by his direct testimony. Panza, 612 F.2d 436-37. The court stated that

[t]he trial court's power to control the conduct of trial is broad. Necessarily many matters of trial procedure must be left to the discretion of trial judges. Historically, the trial court's discretion has included the power to strike the testimony of a witness who improperly refuses to answer questions on cross-examination. [Citations omitted.] This sanction has been invoked against a criminal defendant.

Id. at 438 (case citation omitted).

Here, the district court concluded that the Panza case was directly on point. Layton argues that it is different in several respects. First, he states that Panza was testifying in his own behalf, whereas Layton did not take the stand, and that Panza refused to answer questions that would tend to mitigate his own guilt. Layton overlooks the point that Tates, Panza's codefendant, refused, like Layton, to take the stand, and that while Panza's testimony, if believed, would be advantageous to Panza's defense, it would be advantageous to Tates's defense as well. Further, Layton states that Tates never requested that the trial court allow Panza to testify during the presentation of Tates's defense. This argument also fails to point out any essential distinction. Presumably, even if Panza had testified during the presentation of Tates's defense, the district court would have been justified in sanctioning him for any failure to respond to questions properly asked on cross-examination, just as the district court did in the instant case. Finally, Layton states that the sanctions imposed against Panza did not affect his codefendant Tates. This assertion is simply inaccurate on the facts of that case; as mentioned above, Panza's testimony, if believed, would have had the tendency to mitigate the guilt of Tates as well as of himself.

Thus, Layton presents the court with no reason to disregard the unequivocal precedent of United States v. Panza. The district court correctly denied him habeas corpus relief on this ground.

As the second ground on which to reverse the district court's denial of habeas corpus relief, Layton points to the district court's refusal to accept a so-called traverse he attempted to file in response to appellees' answer. This argument is unavailing.

Layton claims that he initially submitted a free-form petition for writ of habeas corpus with points and authorities attached thereto. A motion to file the petition in this form accompanied it. The court denied the motion, ordering Layton to submit his petition on the court-provided form, but stating that he could later supply the court with points and authorities by way of a reply to the appellees' answer.

After the appellees had filed their answer, Layton filed a document captioned "Traverse" containing points and authorities. The traverse was stricken by the court, which stated, "The rules governing Sec. 2254 habeas corpus cases do not provide for such a filing." Order, Docket item 12 at 1-2. Layton's petition was denied, and judgment entered for appellants. See Docket items 12 & 13.1 

Layton contends that, under Haines v. Kerner, 404 U.S. 519 (1972), his traverse should have been held to the less stringent standards applied to pro se filings, and thus have been filed as a reply. This argument seems to assume that the only reason that the court had disallowed the traverse was that it used the caption "traverse" rather than "reply." See Appellant's Opening Brief at 8 ("Although the document was entitled Traverse, the intent of said document was clear.")

However, reference to the court's order and to the advisory committee note to Rule 5 of the Rules Governing Section 2254 Cases reveals otherwise. The latter states, "Rule 5 (and the general procedure set up by this entire set of rules) does not contemplate a traverse to the answer, except under special circumstances ... In the interests of a more streamlined and manageable habeas corpus procedure, it is not required except in those instances where it will serve a truly useful purpose." It is clear that the Rules do not focus on the caption or form of the traverse; rather, they set out a procedure, including the use of the model form for habeas corpus applications, that is designed to obviate repetitious pleadings and documentation, and to facilitate efficient handling of petitions. Cf., e.g., Rule 9(b) and advisory committee note thereto.

Layton alleges no "special circumstances" that would justify a deviation from the general rule that no traverse should be filed, nor do any appear. The prolific citation and distortion of cases necessitated by an attempt to argue around clear precedent results in something other than the desired "streamlining" of the habeas corpus procedure. Cf. Moore v. Balkcom, 716 F.2d 1511, 1526-27 (11th Cir. 1983), cert. denied, 104 S. Ct. 1456 (1984) (Petitioner's attempt to amend his habeas corpus petition to assert unconstitutionality of Georgia capital sentencing procedure, despite the Supreme Court's prior holding that the statute was constitutional on its face, was futile. Futility is proper ground on which to deny proposed amendment of habeas corpus petition.) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

Moreover, as appellees correctly note, Layton makes no claims that the court's striking of his traverse has prejudiced his case, nor could he support such a claim.



This disposition is not appropriate for publication and may not be cited to by counsel or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The record does not bear out Layton's description of the district court proceedings in all respects. In particular, nothing in the record documents the initial filing of a free-form petition, the motion to allow such a petition, or the judge's representation to Layton that any points and authorities could later be provided to the court in his reply. However, even assuming that these events took place, Layton cannot obtain habeas corpus relief on this ground