Opinion
Civ. Nos. 89-760 AWT, 89-848 AWT.
September 9, 1991.
Daniel Bent, U.S. Atty., D. Hawaii, Louis A. Bracco, Asst. U.S. Atty., Honolulu, Hawaii, for U.S.
John Ashford Thompson, Honolulu, Hawaii, for Patrick English.
Richard Kawana, Honolulu, Hawaii, for Derek Tano.
MEMORANDUM OPINION AND ORDER
These cases require the court to revisit the issue of jury selection by a magistrate in a felony trial. These are two motions under 28 U.S.C. § 2255 by two defendants in the same underlying criminal case to vacate their convictions because jury selection in their case was conducted by a magistrate.
The court earlier addressed another aspect of this problem in United States v. Makaweo, 730 F. Supp. 1016 (D.Hawaii 1990), appeal docketed.
BACKGROUND
Movant English filed his motion on September 29, 1989; movant Tano on October 31, 1989. The Ninth Circuit affirmed their convictions by an unpublished Memorandum filed on May 12, 1989. In movant English's case, the Supreme Court denied his petition for writ of certiorari on October 2, 1989. 493 U.S. 861, 110 S.Ct. 174, 107 L.Ed.2d 130. Movant Tano's petition was denied on October 10, 1989. 493 U.S. 898, 110 S.Ct. 253, 107 L.Ed.2d 203. Based upon this record, the court finds that movant English's conviction was not final when he filed his § 2255 motion, but that movant Tano's conviction was final before he filed his motion.Based on this state of the record, the court stayed the motions in each case. Each order noted that:
The order in English was filed on October 10, 1989, and the order in Tano was filed on November 6, 1989.
Although a § 2255 motion may be made "at any time," prudence dictates that the motion be held in abeyance and petitioner be required to file with the Ninth Circuit a motion to recall the mandate in petitioner's direct appeal, in the light of its own subsequent decision in France.
This was the order in Tano. In English, the language was slightly different, but the substance was the same:
Although a § 2255 motion may be made "at any time," prudence alone, if not technical exhaustion requirements, dictate that the motion be held in abeyance pending final determination of defendant's direct appeal. For example, it is possible that the Supreme Court may summarily remand for reconsideration in light of Gomez. Or, even if certiorari is denied, the Ninth Circuit may favorably entertain a motion to recall the mandate in the light of its own subsequent decision in France.
Neither movant complied with these orders. Both movants justified their refusal to seek the directed relief on direct appeal on the ground that Gomez error was one of subject matter jurisdiction which could be raised at any time and, presumably, in any manner.
Each movant now seeks to have his conviction and sentence vacated on the ground of Gomez error.
DISCUSSION
In Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Court held that a magistrate was not authorized to impanel a jury in a felony case over the defendant's objection. That holding was based on the Magistrates Act and not on any constitutional infirmity. Gomez was decided on July 7, 1989. In United States v. France, 886 F.2d 223, 227 (9th Cir. 1989), aff'd by an equally divided Court, ___ U.S. ___, 111 S.Ct. 805, 112 L.Ed.2d 836 (1991), this Circuit held that Gomez applied to all cases not yet final on direct review on July 7, 1989. Subsequently, in Peretz v. United States, ___ U.S. ___, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), the Court held that a magistrate may preside over jury selection in a felony case with the defendant's consent. Moreover, the Court strongly intimated, by its reliance on Circuit authority to that effect, that failure to object, as well as affirmative consent, was sufficient to validate magistrate-presided jury selection.
We agree with the view of the majority of Circuit Judges who have considered this issue, both before and after our decision in Gomez, that permitting a magistrate to conduct the voir dire in a felony trial when the defendant raises no objection is entirely faithful to the congressional purpose in enacting the Federal Magistrate Act.Id. 111 S.Ct. at 2671 (footnote citations omitted) (emphasis added).
Most recently, in United States v. Gamble, 943 F.2d 1030 (9th Cir. 1991), this Circuit held that France survives Peretz on direct appeal. Gamble held that pre- Gomez failure to object to magistrate conducted voir dire does not amount to the consent required by Peretz. Gamble had no occasion to and did not consider the effect of Peretz on collateral review. In fact, France itself, which Gamble held to be controlling, expressly avoided the collateral review issue. See 886 F.2d at 227 n. 2. We now turn to that issue — the effect of Peretz on collateral review in this Circuit.
As this court observed in Makaweo,
Under United States v. Frady, 456 U.S. 152, 162-66 [ 102 S.Ct. 1584, 1591-93, 71 L.Ed.2d 816] (1982), collateral relief from unobjected to trial error requires a showing of cause and actual prejudice.730 F. Supp. at 1018. The reasons set forth in Makaweo why magistrate jury selection did not result in actual prejudice, id., apply here. Like Makaweo, movants here advance no factual assertions why or how magistrate jury selection could have resulted in actual prejudice. Moreover, Peretz reinforces the lack of per se prejudice from unobjected to magistrate jury selection.
Finally, the court finds that these movants have not met the "cause" requirement of Frady. Makaweo also held that France "dispenses with the `cause' requirement of Frady." Id. at 1018. However, the procedural history of these cases differs significantly from Makaweo. These movants bypassed the opportunity to seek relief on this issue on direct appeal. In fact, they deliberately chose not to comply with this court's order that they do so. At the very least, there was available to each movant a motion to recall the mandate in his direct appeal. Instead, movants elected to rely on their contention that Gomez error was "jurisdictional." Peretz has since held that it was not. Movants have failed to show cause why they did not seek relief on direct appeal. See also Engle v. Isaac, 456 U.S. 107, 130-34, 102 S.Ct. 1558, 1573-75, 71 L.Ed.2d 783 (1982) (futility alone is insufficient to establish cause for failure to object at trial).
IT IS ORDERED that the respective motions under 28 U.S.C. § 2255 to vacate, set aside or correct sentence are DENIED.