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United States v. Bezold

filed: January 9, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
YEAYIN BEZOLD, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Hawaii. Harold M. Fong, Chief Judge, Presiding. DC No. CR 82-1027-2-HMF. Submission Withdrawn April 23, 1991. Resubmitted December 30, 1991

Before: Goodwin, Thompson and O'scannlain, Circuit Judges.

MEMORANDUM

Yeayin Bezold appeals the district court's denial of his petition for a writ of error coram nobis. We affirm.

Bezold contends that his conviction must be vacated because a magistrate conducted jury voir dire. In 1989, the Supreme Court held magistrates are without statutory power to conduct jury selection in felony trials over a defendant's objection. Gomez v. United States, 490 U.S. 858 (1989). The rule announced in Gomez does not, however, apply retroactively to convictions that become final before the date of the Gomez decision. United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991). Bezold's conviction became final on denial of certiorari by the United States Supreme Court in 1986. Accordingly, Bezold cannot claim the benefit of the Gomez decision.

Bezold also claims that both the fact that the magistrate was allowed to conduct the voir dire examination, and comments made by the magistrate during that examination denied him due process. These issues were resolved against Bezold in his direct appeal. United States v. Bezold, 760 F.2d 999, 1001-03 (9th Cir. 1985), cert. denied, 474 U.S. 1063 (1986).

AFFIRMED.

19920109

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