Unpublished Disposition, 927 F.2d 608 (9th Cir. 1989)

MEMORANDUM^** 

Petitioner Carr was convicted of beating an elderly man to death with a hammer in the course of stealing $700 in cash, a rifle, and a radio. The jury convicted Carr of first degree murder and ordered the death penalty. The California Supreme Court modified the penalty to life in prison.

During the course of interrogation, the police made four tapes of Carr confessing to the crime. The government presented only one of the tapes at trial, and petitioner's counsel did not discuss the remaining three tapes at the pretrial suppression hearing. The earlier three tapes allegedly contained defective Miranda warnings. Petitioner claims that they also contained invocations of the right to counsel. Petitioner now claims that if the judge had looked at all four tapes during the suppression hearing, he would have ruled that the errors on the first three tapes so tainted the entire interrogation that the fourth tape should have been suppressed as an involuntary confession.

In 1979, petitioner filed a habeas corpus petition focusing on the content of the three earlier tapes and alleging ineffective assistance of counsel. The police had erased the tapes after Carr's conviction was upheld on appeal. As a result, the district court held a hearing in which the policeman who had conducted the interrogation and petitioner's original counsel testified about the content of the tapes. The court appointed a new attorney to represent petitioner at the hearing. Following the hearing, the court denied the writ. Petitioner unsuccessfully sought a rehearing. Petitioner filed additional petitions in federal court in 1982, 1983, and 1985, all of which were dismissed on the grounds that they were successive. In 1989, petitioner filed the current habeas petition asking that this court reconsider the issue of ineffective assistance of counsel on the grounds that he did not receive a full and fair hearing in 1979. The petition was referred to a magistrate who denied the petition. The magistrate's ruling was upheld by the district court. Petitioner appeals.

A district court may deny a habeas corpus petition on the grounds that it is successive if: 1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application; 2) the prior determination was on the merits, and 3) the ends of justice would not be served by reaching the merits. Sanders v. United States, 373 U.S. 1, 15 (1963). A petitioner can establish that the ends of justice require a redetermination upon a showing that an earlier evidentiary hearing was not full and fair. Id. at 16-17. A hearing is not full and fair where the court "has made serious procedural errors (respecting the claim pressed in federal habeas) in such things as the burden of proof" or where the procedures employed, although not constitutionally infirm are still seriously inadequate for the ascertainment of truth. Townsend v. Sain, 372 U.S. 293, 316 (1963) (discussing standards for whether a state court hearing has been full and fair); See Sanders, 373 U.S. at 16-17 (citing Townsend as describing the types of full and fair hearing standards that should be applied in the context of federal habeas petitions as well).

Petitioner first claims that the hearing could not have been full and fair because the court's conclusions were inconsistent. According to petitioner, the hearing court found 1) that counsel engaged in a trial strategy to try to keep the three damaging tapes from the jury and 2) that this finding was inconsistent with the state court's comment that trial counsel most likely engaged in a strategy to keep the three tapes from being presented to the judge at the suppression hearing. See People v. Carr, 8 Cal. 3d 287, 296, 502 P.2d 513, 518, 104 Cal. Rptr. 705, 710 (1972). Petitioner claims that trial counsel's strategy could not have included both.

Petitioner's argument fails for two reasons. First, petitioner, in essence, is arguing that the hearing court reached the wrong decision. His arguments in no way suggest that the hearing process itself was not full and fair. The question of whether the hearing court reached a proper decision has been decided previously. The only issue before us is whether the hearing process was tainted somehow. Thus petitioner's arguments are not relevant.

Second, petitioner is incorrect that trial counsel's strategy could not have included both keeping the tapes from the jury and keeping the tapes from the judge. Trial counsel could have decided that if he introduced the three tapes at the suppression hearing, the government might have argued successfully that any errors made on the tapes were harmless enough and that the entire set should be presented to the jury. Counsel might have felt that the safest strategy was to leave well enough alone rather than risking introduction of even more damaging material. Thus, to keep the tapes out of the suppression hearing before the judge could be quite consistent with the ultimate strategy of keeping the tapes from the jury.

Petitioner also claims that the testimony presented was biased and that the only appropriate evidence would have been the tapes themselves. The judge, however, used a reasonable method of determining what went on during the interrogation given the loss of the tapes. Petitioner chose not to testify at the hearing concerning what went on during the interrogation. Thus, the only possible witnesses were the interrogator and the counsel who studied the tapes.

Petitioner also claims that the hearing court used an improper procedure for the examination of witnesses. According to petitioner, he and the government both called the only possible witnesses, the interrogating officer and petitioner's trial counsel. At the hearing, the government was allowed to examine the witnesses first. Petitioner contends that he had the burden of proof to show ineffective assistance of counsel and should have gone first. He argues that allowing the government to present its case first amounted to an inappropriate shifting of the burdens of proof which deprived him of a full and fair hearing.

Petitioner appears to be focusing on the Supreme Court's comment in Townsend that an improper shifting of the burdens of proof may result in an unfair hearing. The Townsend language, however, means that a party who has been forced to bear a burden of proof that belonged to the other side has the right to complain. Thus, even if the hearing court, by allowing the government to go first, improperly transferred the burden of proof to the government, only the government could object. If there was no shift of the burden of proof, petitioner, by going last, was given an advantage--that is, he could see the government's case before he had to present his own.

Finally, petitioner alleges that in the current petition, the magistrate and the district court ruled that the 1979 hearing was full and fair without examining the transcript of that hearing. The record does not support this claim. The district court's order in the current petition specifically stated the following: "This court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the magistrate's findings and recommendations [that the 1979 hearing was full and fair] to be supported by the record and by proper analysis." Order of April 18, 1989 (No. CIV S-89-0302 EJG) (E.D.Ca.). Thus, petitioner's request received an appropriate review below.

In sum, the district court is correct that petitioner has failed to show that the 1979 hearing was less than full and fair. The decision of the district court denying petitioner's request for a writ is affirmed.

AFFIRMED.