FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE MICHAEL HANSON, 

No. 02-35795 Petitioner-Appellant,

D.C. No.

v.  CV-00-00049-LBE

MIKE MAHONEY, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Montana

Leif B. Erickson, Magistrate Judge, Presiding

Argued and Submitted

June 2, 2003—Seattle, Washington

Original Opinion Withdrawn January 28, 2004

Reargued and Submitted October 19, 2004

Seattle, Washington

Filed January 10, 2006

Before: Betty B. Fletcher, Melvin Brunetti, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge B. Fletcher;

Concurrence by Judge B. Fletcher

189
COUNSEL

David Ness, Assistant Federal Defender, Helena, Montana,

for the petitioner-appellant. 

Carol E. Schmidt, Assistant Attorney General, Helena, Montana, for the respondent-appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

Dale Michael Hanson, whose petition for a writ of habeas

corpus challenging his Montana conviction for sexual assault

and deviate sexual conduct was dismissed by a magistrate

judge, brings two issues before this court. First, he contends

that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253 and, therefore,

he asks this court to rule that his request for a COA must be

returned to the district court for consideration by an Article III

judge. Second, he contends, in the alternative, that the magistrate judge erred in holding that he procedurally defaulted his

claim that the state trial court’s instruction on unanimity was

defective under State v. Weaver, 964 P.2d 713 (Mont. 1998).

Because we hold that magistrate judges are authorized to

192 HANSON v. MAHONEY
issue COAs, and we agree that Hanson’s claim for relief is

procedurally defaulted, we affirm.1

FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

Hanson was convicted in Montana of sexual assault and

deviant sexual conduct in 1995. At trial, the district court

instructed the jury that a unanimous verdict was required to

convict Hanson, but did not specify that unanimous agreement as to at least one underlying sex act was necessary to

support a conviction on each charge. 

On appeal with new counsel, Hanson raised a number of

issues for the first time, and he contended that his trial counsel

had been ineffective under Strickland v. Washington, 466 U.S.

668 (1984), for failing to raise them below. Hanson, however,

raised no claim that the jury instructions on unanimity were

deficient. The Montana Supreme Court rejected his claims of

trial error and held that his counsel had not been ineffective

under Strickland. State v. Hanson, 940 P.2d 1166, 1174

(Mont. 1997). 

After the Montana Supreme Court issued its disposition of

Hanson’s direct appeal, it reversed another defendant’s conviction for a similar crime on direct appeal. See Weaver, 964

P.2d at 717-21. The court held that the trial court committed

plain error by not instructing the jury “that it had to reach a

unanimous verdict as to at least one specific underlying act of

1On January 28, 2004, we withdrew our opinion (over a dissent by

Judge Brunetti) and ordered appointment of new counsel and rebriefing

after we received notification that Hanson’s prior attorneys had failed to

raise crucial issues, namely, (1) ineffective assistance of counsel for

claims that had been defaulted in state court, and (2) actual innocence.

Hanson was well represented in his appeal through careful briefing and

articulate argument by his newly appointed counsel. After a thorough

review, we have determined that those claims do not have merit because

they have either been procedurally defaulted or are unexhausted. 

HANSON v. MAHONEY 193
sexual assault for each count charged in the information.” Id.

at 717. 

Hanson filed a petition for state collateral review. He was

assisted by Ed Sheehy, an attorney under contract with the

Montana Department of Corrections to help prisoners with

appeals and petitions for post-conviction relief. Sheehy ghostwrote Hanson’s petition and briefs. Hanson raised claims of

ineffective assistance of counsel, and because of Sheehy’s

assistance, he added a claim under Weaver challenging the

jury instructions. 

The Montana Supreme Court dismissed the petition. See

State v. Hanson, 988 P.2d 299 (Mont. 1999). It held that Hanson’s claim of instructional error was barred under Mont.

Code Ann. § 46-21-105(2), which provides in pertinent part

that “[w]hen a petitioner has been afforded the opportunity for

a direct appeal of the petitioner’s conviction, grounds for

relief that were or could reasonably have been raised on direct

appeal may not be raised, considered, or decided in a proceeding brought under this chapter.” The Montana Supreme Court

explained that the cases on which the appellant in Weaver had

relied had been decided before Hanson’s direct appeal and

that Hanson was aware of the applicability of the plain error

doctrine to his case because he had argued that the trial court

had committed plain error on grounds other than the unanimity instruction. Hanson, 988 P.2d at 300-01. The Montana

Supreme Court explicitly declined to reach Hanson’s claim

that he was entitled to retroactive relief under Weaver notwithstanding § 46-21-105, because to reach the merits of the

claim would frustrate the consistent application of the statutory bar. Id. at 301. 

Hanson, acting pro se, filed a timely petition for habeas

corpus in federal district court. He claimed that under Teague

v. Lane, 489 U.S. 288 (1989), he was entitled to the retroactive application of the unanimity instruction required by Weaver, and that he was entitled to relief based on his trial

194 HANSON v. MAHONEY
counsel’s ineffective assistance. A magistrate judge, Leif

Erickson, determined that Hanson’s claim for relief under

Teague and Weaver was procedurally barred as was part of

his claim of ineffective assistance of counsel. Magistrate

Judge Erickson appointed counsel for Hanson, and the parties

consented “to have a U.S. Magistrate Judge conduct any and

all further proceedings in the case, including trial, order the

entry of a final judgment, and conduct all post judgment proceedings.” The case was duly assigned to Magistrate Judge

Erickson. 

In a reasoned order, Magistrate Judge Erickson denied

Hanson’s motion to reconsider his ruling that the claim under

Teague and Weaver and some of Hanson’s ineffective assistance of counsel claims were defaulted. In a second reasoned

order, the magistrate judge dismissed Hanson’s remaining

claims of ineffective assistance of counsel on the merits and,

after addressing Hanson’s renewed arguments regarding procedural default, entered final judgment in the case. 

Hanson filed a timely notice of appeal and asked that an

Article III judge consider his request for a COA. Magistrate

Judge Erickson denied Hanson’s motion to have his request

for a COA considered by a district judge and held that

because the parties consented to his adjudication of postjudgment proceedings, he had the authority to adjudicate the

request for a COA. The magistrate judge, upon consideration

of the merits of Hanson’s request, issued a COA as to the unanimity claim and denied one as to the claims of ineffective

assistance of counsel. 

ANALYSIS

I. Magistrate Judge Authority

Hanson contends that magistrate judges are not authorized

to issue COAs.2 We disagree. 

2Because Hanson filed his federal petition for habeas relief after the

effective date of the Antiterrorism and Effective Death Penalty Act of

HANSON v. MAHONEY 195
We begin our analysis with the scope of authority that Congress conferred on Magistrate Judges. “Congress intended

magistrates to play an integral and important role in the federal judicial system.” Peretz v. United States, 501 U.S. 923,

928 (1991); see also United States v. Reyna-Tapia, 328 F.3d

1114, 1116 (9th Cir. 2003) (en banc). 

[1] Issuing a COA is within the scope of the authority

granted to magistrate judges under the Federal Magistrates

Act. The Magistrates Act permits magistrate judges to conduct all proceedings in civil cases if the parties consent:

“Upon consent of the parties, a . . . United States magistrate

judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,

when specially designated to exercise such jurisdiction by the

district court or courts he serves.” 28 U.S.C. § 636(c)(1).3 The

statute affirmatively states that “an aggrieved party may

appeal directly to the appropriate United States court of

appeals from the judgment of the magistrate judge in the same

manner as an appeal from any other judgment of a district

court.” 28 U.S.C. § 636(c)(3). Here, the state and Hanson consented to the magistrate judge’s adjudication of “any and all

further proceedings in the case, including trial, order the entry

of a final judgment, and . . . all post judgment proceedings.”

The decision to issue a COA is plainly a post judgment proceeding within the scope of the parties’ consent, and it is

clearly a “proceeding[ ] in a . . . civil matter.” See 28 U.S.C.

§ 2254. 

[2] Nothing in the statutes that govern the issuance of

COAs mandates the contrary conclusion that a COA may be

issued only by an Article III judge. Under 28 U.S.C.

1996 (AEDPA), we must consider his petition under the standards of that

statute. 

3Neither party contends that the district court failed to designate Magistrate Judge Erickson to exercise such jurisdiction. 

196 HANSON v. MAHONEY
§ 2253(c)(1), a “circuit justice or judge” must issue a COA

before an appeal of a final order in a case under § 2254 may

be taken. It is well settled that the phrase “circuit justice or

judge” — though ambiguous — includes district judges as

well as circuit judges. United States v. Asrar, 116 F.3d 1268,

1269-70 (9th Cir. 1997). Accord Dressler v. McCaughtry, 238

F.3d 908, 912 n.3 (7th Cir. 2001) (holding that § 2253 is

ambiguous as to whether magistrate judges are authorized to

issue a COA, but that magistrate judges may do so). The statute is silent as to whether the “judge” must be an Article III

judge, and nothing in the phrase suggests that Congress

intended the words “circuit justice or judge” to exclude magistrate judges when they act in a capacity otherwise authorized by the Magistrates Act. 

[3] The procedural requirements of the Federal Rules of

Appellate Procedure similarly do not preclude magistrate

judges from issuing COAs. Rule 22 provides in part that “[i]n

a habeas corpus proceeding in which the detention complained of arises from process issued by a state court . . . the

applicant cannot take an appeal unless a circuit justice or a

circuit or district judge issues a certificate of appealability.”

Fed. R. App. P. 22(b)(1). Although the list of judges does not

include magistrate judges, there is no indication that it was

intended to limit the scope of § 2253(c)(1). Indeed, the advisory committee note to the 1998 amendments that added the

phrase “circuit justice or a circuit or district judge” to Rule 22

makes clear that the phrase was inserted in the Rule to show

inclusively that district judges, and not only circuit judges, are

authorized to issue COAs. See Fed. R. App. P. 22 advisory

committee note. The amendments did not address the question

of whether magistrate judges were barred from doing so.

Accordingly, the amendments do not indicate an intent to bar

magistrates from issuing COAs and the principle of inclusio

unius est exclusius alterius does not apply with any force to

this aspect of Rule 22. 

[4] Moreover, this court has already adopted an interpretation of Rule 22 that permits magistrate judges to issue COAs.

HANSON v. MAHONEY 197
The Ninth Circuit rules state that “a certificate of appealability must first be considered by the district court,” Ninth

Circuit Rule 22-1(a) (emphasis added), without specifying

whether the judge at the district level must be an Article III

judge or a magistrate judge. The choice of the term “district

court” rather than a specific reference to district or magistrate

judges raises the inference that a magistrate judge is not precluded from issuing a COA under Fed. R. App. P. 22.

Although we are not bound by our circuit rule if it conflicts

with binding authority to the contrary, this court’s interpretation of Fed. R. App. P. 22 as announced in the circuit rules

is significantly persuasive. 

Finally, we note that regardless of whether a petitioner’s

request for a COA is adjudicated below by an Article III

judge, after the request has been considered by the district

court, the petitioner is free to request a COA from the judges

of this court. See Ninth Circuit Rule 22. We may grant a

request for a COA on any issue if the petitioner makes a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). That is, if a petitioner shows “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’ ” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)); see also Miller-El v. Cockrell, 537 U.S.

322 (2003). In practical terms, therefore, a petitioner does not

lose the opportunity for his request for a COA to be considered anew by an independent Article III judge merely because

a magistrate judge considered the request in the first instance.

[5] Accordingly we hold that magistrate judges may issue

COAs if they have been authorized by consent of the parties

to adjudicate the entire case pursuant to 28 U.S.C.

§ 636(c)(1). 

198 HANSON v. MAHONEY
II. Merits

[6] We turn to the merits of Hanson’s appeal. The COA

issued below permits us to consider (1) whether Hanson was

deprived of a constitutional right because the state trial court

did not require the jury to agree unanimously as to which of

Hanson’s alleged sex acts constituted the conduct for which

he was convicted on each count and (2) whether Hanson’s

claim for relief on this basis was procedurally defaulted.4 We

agree with the district court that Hanson’s claim for relief on

his unanimity claim was defaulted and that the default is not

excused. We therefore affirm the dismissal below. 

Hanson advances two arguments as to why his unanimity

claim may be heard on the merits. First, he contends that the

Montana statute asserted to bar his claim on procedural

grounds is not firmly established and has not been regularly

followed, and thus does not preclude our consideration of his

claim. Second, he argues that any default is excused because

the attorney who assisted him with the preparation of his state

petition for collateral relief operated under a conflict of interest. Neither of these arguments has merit. 

A. Firmly Established and Regularly Followed State Bar

As we have explained:

The procedural default doctrine bars federal habeas

when a state court declined to address a prisoner’s

federal claims because the prisoner had failed to

meet a state procedural requirement. 

Not all state procedural bars are adequate to foreclose federal review. For the procedural default doctrine to apply, a state rule must be clear, consistently

4Because Hanson has not challenged the scope of the COA issued, we

do not consider whether a COA might issue on his other claims for relief.

HANSON v. MAHONEY 199
applied, and well-established at the time of the petitioner’s purported default. 

Calderon v. United States District Court, 96 F.3d 1126, 1129

(9th Cir. 1996), cert. denied sub nom. Calderon v. Bean, 520

U.S. 1204 (1997) (citations and internal quotation marks

omitted). Hanson contends that when his state direct appeal

was adjudicated, the Montana courts did not consistently

apply § 46-21-105 to bar claims not raised on direct appeal.

Because we must look to the time period in which the purported default occurred to judge the adequacy of the state bar,

see Calderon v. United States District Court, 103 F.3d 72, 75

(9th Cir. 1996) (per curiam), cert. denied 521 U.S. 1129

(1997), we consider whether § 46-21-105 was clear, consistently applied, and well established from 1995 to 1997. We

conclude that it was. 

Hanson cites two Montana cases from the relevant time

period to prove otherwise: State v. Christensen, 907 P.2d 970

(Mont. 1995) and Kills On Top v. State, 901 P.2d 1368 (Mont.

1995). The state court held in Christensen that § 46-21-105

may be overlooked when a petitioner demonstrates that a fundamental miscarriage of justice has occurred. Christensen,

907 P.2d at 972. This ruling does not help Hanson because,

although the Montana court recognized an exception to § 46-

21-105, it refused to apply it. Christensen does not indicate

that § 46-21-105 in fact was inconsistently applied at the time.

Nor does Kills On Top considered in conjunction with

Christensen aid Hanson. In Kills On Top, the Montana

Supreme Court specifically overruled an older precedent,

State v. Henricks, 672 P.2d 20, 23 (Mont. 1983), that had permitted it to review claims not raised on direct appeal despite

§ 46-21-105. The court was at pains to indicate that it had

been consistent in applying § 46-21-105, and it stated: 

Since Henricks was decided, we have not cited it for

the proposition that this Court can review issues in

200 HANSON v. MAHONEY
postconviction proceedings which could have been

raised on direct appeal. We now specifically overrule

Henricks to the extent that it stands for the proposition that this Court can review issues in postconviction proceedings which could have been raised on

direct appeal. 

Kills On Top, 901 P.2d at 1386-87. Thus, the Montana

Supreme Court indicated clearly that despite Henricks, its

jurisprudence applying § 46-21-105 was clear and consistent.

Hanson has raised nothing before this court to indicate that

the Montana Supreme Court’s assessment of its jurisprudence

is inaccurate. 

The other cases that Hanson asks us to consider were

decided well after 1997 and are outside of the relevant time

period. See State v. Whitehorn, 50 P.3d 121 (Mont. 2002);

State v. Worrall, 976 P.2d 968 (Mont. 1999). Accordingly, we

hold that § 46-21-105 is adequate to bar Hanson’s claim. 

B. Excuse for Default

Because we hold that Hanson’s claim for relief is procedurally defaulted, we must consider whether his default is

excused. “Procedural default is excused if ‘the prisoner can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.’ ” Boyd v. Thompson, 147 F.3d 1124,

1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501

U.S. 722, 750 (1991)). 

Hanson does not allege that failure to consider his claims

will result in a fundamental miscarriage of justice. He argues

instead that he has demonstrated cause and prejudice because

Ed Sheehy, who ghostwrote his state petition for collateral

review, operated under a fatal conflict of interest because he

was employed by the Montana Department of Corrections at

HANSON v. MAHONEY 201
the time he wrote Hanson’s petition and briefs. Even assuming for the sake of argument that Sheehy was under a conflict

of interest, nothing he did caused Hanson’s default. Sheehy’s

involvement with Hanson’s case occurred entirely after the

default occurred. At most Sheehy’s acts or omissions failed to

rectify the earlier default. However, no claim for relief based

on Sheehy’s involvement in the case is before us, and we cannot say that any additional arguments that Sheehy might have

raised regarding Hanson’s counsel on direct appeal would

have excused the failure to raise Hanson’s claim on direct

appeal. 

Accordingly, we hold that Hanson has not established

cause or prejudice for the default of his claim. 

CONCLUSION

We hold that the magistrate judge was authorized to issue

the COA. Because Hanson’s claim is defaulted, and the

default is not excused, we affirm the dismissal of his petition

for a writ of habeas corpus. 

AFFIRMED.

B. FLETCHER, Circuit Judge, specially concurring: 

We requested rebriefing in this case after we became aware

of tapes containing vindictive voice-mail messages, left on

Hanson’s answering machine by the victim’s mother, indicating her vendetta to do anything to get even with him after

their breakup. Because that plan might have included fabricating charges of child abuse, the tapes, had they been placed

into evidence, could have influenced the jury’s decision

regarding Hanson’s guilt. Hanson’s trial counsel never sought

to introduce the messages; under the circumstances, that failure may have constituted ineffective assistance of counsel. 

202 HANSON v. MAHONEY
However, at this juncture, that particular claim cannot be

entertained. See Majority at 193 n.1. Thus, this appeal illustrates the consequences — often tragic — that result from

procedural failures, as cases proceed from trial to appeal to

post-conviction proceedings. At our level of review, frequently we are unable to untie the Gordian knot. That is so in

this case. 

Equally tragic, Hanson continues to sit in jail even though

he is eligible for release — and has been for some time. The

State of Montana requires him to register as a sex offender,

but Hanson maintains his innocence and refuses to do so.

Thus, he remains incarcerated pending resolution of a subsequent charge for refusing to register as a sex offender. No stay

of incarceration was entered during the pendency of these

proceedings. 

At oral argument, I suggested to the State that it consider

alternatives to pursuing these new state-law charges in light

of the strength of Hanson’s claim of ineffective assistance of

counsel and his unwavering claim of innocence. The State’s

stringent and unbending approach, however unfortunate, is

unremediable. 

HANSON v. MAHONEY 203