Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

No. 90-35816.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, FERGUSON and CYNTHIA HOLCOMB HALL, Circuit Judges

MEMORANDUM^** 

John Joe Bland appeals from the district court's denial of habeas corpus relief pursuant to 28 U.S.C. § 2254. Bland contends that he is entitled to a new trial because his sixth amendment right to confront witnesses was denied when the judge in his state trial limited his cross-examination of the expert witness who had administered his polygraph examination. The state trial judge ruled that Bland could not cross-examine the polygrapher regarding his qualifications or the reliability of the polygraph because Bland had stipulated that the operator was qualified and that the results were reliable.

Bland set forth facts in his state prisoner petition for a writ of habeas corpus in support of two federal constitutional claims. First, he alleged that the admission of polygraph evidence violated his rights to equal protection and due process under the fifth and fourteenth amendments, and contravened the Privileges and Immunities provisions of the Oregon Constitution. In his second ground for federal habeas corpus relief, he alleged facts that he claimed constituted a denial of effective assistance of counsel.

The district court concluded that Bland's federal constitutional claims were procedurally barred. Alternatively, the district court rejected each alleged claim on the merits. In this appeal, Bland does not challenge the rulings of the district court on the claims raised in the petition for a writ of habeas corpus. The issue Bland has presented to this court is "whether the district court erred in denying habeas corpus relief because the state trial judge failed to establish that Bland waived his right to confront the polygraph examiner regarding the examiner's qualifications and the accuracy of the polygraph machine." Brief for Appellant at 8-9. This claim was not presented in the petition for habeas corpus.

We instructed the parties to file supplemental letter briefs discussing the question whether the denial of effective cross-examination was raised before the district court and, if not, whether this court should decline to exercise its discretion because the claim was raised for the first time on appeal.

The Government contends that the confrontation clause claim was not raised in the district court. Bland concedes that he did not argue before the district court that the state court deprived him of his right to confrontation. He argues, however, that because he claimed that his rights under the fourteenth amendment were violated when the state court admitted the results of a polygraph examination pursuant to stipulation in violation of current Oregon law and when it denied him effective representation of counsel, the denial of effective cross-examination claim was presented to the district court because the confrontation clause has been incorporated into the fourteenth amendment.

This argument lacks merit. The petition did not allege any facts showing that the state court limited cross-examination of the polygrapher. A claim presenting a legal conclusion is insufficient to involve federal court jurisdiction over a state prisoner's constitutional claim. A prisoner must set forth the facts supporting each ground for a writ of habeas corpus in the petition. Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2254 (1988); see also Newfield v. United States, 565 F.2d 203, 207 (2nd Cir. 1977) ("petitioner must be responsible for setting forth specific facts which he or she is in a position to establish by competent evidence").

We have the discretion to reject a claim raised for the first time on appeal. Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir. 1986), overruled on other grounds, Wallace v. Christensen, 802 F.2d 1539, 1542 (9th Cir. 1986) (en banc); See e.g., Willard v. People, 812 F.2d 461, 465 (9th Cir. 1987) ("We do not entertain this claim because [the state prisoner] did not include it in his petition"); Ahlswede v. Wolff, 720 F.2d 1108, 1109 (9th Cir. 1983) ("the only issues properly before this court are those in the [habeas] petition"). We consider issues raised for the first time on appeal when "the question is a purely legal one that is both central to the case and important to the public." In re Sells, 719 F.2d 985, 990 (9th Cir. 1983).

A purely legal issue is "the injection of which would not have caused the parties to develop new or different facts" at trial. Int'l Ass'n of Machinists v. Aloha Airlines, 790 F.2d 727, 733 (9th Cir. 1986), cert. denied, 479 U.S. 931 (1986). Bland argues on appeal that he intended only to stipulate to the admissibility of the polygraph evidence, not to waive his right to cross-examine the polygraph operator concerning the reliability of the test and the operator's qualifications. Bland's intention at the time of the stipulation to admit the results of the polygraph examination is a pure question of fact that we cannot resolve on this record.

The district court's order denying habeas corpus relief is AFFIRMED. The purported appeal regarding the denial of the right to confront is DISMISSED.