## Facts

- Oloth Insyxiengmay, a Washington state juvenile tried as an adult, was convicted of two counts of first-degree murder and two counts of first-degree assault arising from a shooting of teenagers who had egged a gang hangout.
- During pretrial proceedings, the prosecutor told defense counsel that a confidential informant had supplied information that led to Insyxiengmay’s codefendant’s arrest.
- Defense counsel moved for disclosure of the informant’s identity, and the trial judge conducted an in camera proceeding concerning the informant-related information.
- The trial judge excluded Insyxiengmay’s attorney from the in camera hearing, did not permit counsel to submit questions, and barred counsel from telling Insyxiengmay that an informant existed.
- At the in camera hearing, Deputy Cassio testified that the informant (Kong Prak) was affiliated with Insyxiengmay’s gang and had provided reliable information about gang members.
- Cassio also acknowledged that Prak was in the car with the codefendant at the time of the arrest and that Cassio falsified the arrest report to omit Prak’s name.
- The trial court refused to disclose Prak’s identity, concluding the informant had no information that would help Insyxiengmay’s defense.
- Washington appellate courts affirmed the convictions and rejected a Sixth Amendment argument that exclusion from the in camera hearing improperly denied Insyxiengmay and counsel presence at a critical stage.
- Insyxiengmay filed a federal habeas petition under 28 U.S.C. § 2254. The district court dismissed three claims as procedurally barred and denied relief on the remaining claims, including the Sixth Amendment in camera-hearing claim, without holding an evidentiary hearing.
- The Ninth Circuit granted a certificate of appealability. The parties did not dispute that the exclusion from the in camera hearing violated the Sixth Amendment; they disputed whether the violation was prejudicial and whether further factual development was required.

## Issues

1. Whether the district court erred in dismissing as procedurally barred three habeas claims alleging (a) failure to give a manslaughter instruction, (b) admission of a non-testifying codefendant’s inculpatory statement, and (c) exclusion of adverse polygraph results of a key prosecution witness.
2. Whether Insyxiengmay’s Sixth Amendment claim, based on the exclusion of him and his counsel from an in camera proceeding about a confidential informant, required an evidentiary hearing in federal court to determine prejudice and entitlement to relief.

## Decision

- The Ninth Circuit held that Insyxiengmay had fairly presented the three disputed claims to the Washington Supreme Court as federal claims, so the district court erred in dismissing them as procedurally barred.
- The Ninth Circuit held that Insyxiengmay’s allegations regarding the Sixth Amendment violation surrounding the in camera confidential-informant proceeding required an evidentiary hearing in federal court.
- The Ninth Circuit reversed the district court’s dismissal/denial of the habeas petition and remanded for further proceedings and consideration of the claims consistent with its opinion.

## Legal Principles

- A federal habeas claim is not procedurally defaulted where the petitioner fairly presents the federal nature of the claim to the state’s highest court, giving the state courts a full and fair opportunity to resolve the federal issue.
- A federal court may not treat a claim as barred by a state procedural rule unless the state ground is independent of federal law and adequate to support the judgment.
- The Sixth Amendment protects a defendant’s right to counsel and, in appropriate circumstances, the right to be present with counsel at stages of the criminal proceeding where the defendant’s interests may be affected.
- When a habeas petitioner makes allegations that, if proven, could warrant relief and the existing record is inadequate to resolve material factual disputes (including whether a conceded constitutional violation caused prejudice), an evidentiary hearing in federal court may be required.
- In informant-related disputes, a trial court may review material in camera to address disclosure questions, but excluding the defense from a proceeding that bears on the defense may raise right-to-counsel and right-to-presence concerns that can require later factual development to assess harm.

## Conclusion

In *Insyxiengmay v. Morgan*, the Ninth Circuit reversed the district court’s dismissal and denial of a Washington state prisoner’s § 2254 petition, holding that three claims were not procedurally barred because they were fairly presented as federal claims to the Washington Supreme Court, and further holding that an evidentiary hearing was required to address prejudice stemming from a conceded Sixth Amendment violation involving the exclusion of the defendant and counsel from an in camera proceeding concerning a confidential informant.


Insyxiengmay v. Morgan, 403 F.3d 657 (2005)