On Sunday, June 30, 1974, Ceja went to
the home of Randy and Linda Leon in Phoenix intending to steal a large
shipment of marijuana.
Upon entry, Ceja shot Linda (who apparently resisted
him) twice in the chest, and then dragged her body from the living room
to the bedroom where he shot her at least four more times in the head at
When Randy arrived home, Ceja shot him four times with his
own gun, which Ceja had removed from a drawer in the house. Ceja loaded
a suitcase he had brought with him with 12 kilos of marijuana.
He removed the receiver from the phone and turned on
the television to create an appearance that someone was home. He later
attended the funeral of the victims, helped move furniture, and offered
to help police find the murderer.
Presiding Judge: C. Kimball Rose (first trial) A.
Melvin McDonald (second trial)
Prosecutors:Joseph Shaw (first trial) Peter Whitmer (retrial) Lawrence
Start of Trial: November 8, 1974 (first trial) May 12, 1976 (second
Verdicts:November 19, 1974 (first trial) May 18, 1976 (second trial)
Sentencing:December 19, 1974 (first trial) June 25, 1976 (second trial)
Resentencing:July 17, 1979
None sufficient to call for leniency
State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (1976).
State v. Ceja, 115 Ariz. 413, 565 P.2d 1274 (1977).
State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980).
2 Red Chili Beef Burritos, 2 Cans Coke Classic, 1 slice Cherry Pie
Jose Jesus Ceja
Jose Jesus Ceja, 42, was executed for the June 1974
shooting of a young Phoenix couple during a theft of 70 pounds of
At 12:01 this morning (Arizona time), the drapes
opened. Ceja lifted his head, recognized 1 of the witnesses and smiled
and winked. When asked if he had any final words, Ceja stated, "No,
that's all right."
As the death warrant was read, Ceja's eyes blinked
quickly. At 12:02, the lethal concoction started filling his veins.
As the injection began, his eyes continued to blink.
He heaved 3 times, his mouth twitched, and he appeared to blow air from
his mouth. At 12:05, he was pronounced dead by Corrections Diector Terry
He lay on the gurney with his pale arms strapped
tightly down. A white sheet covered him from the waist down. He wore a
Witnesses said the execution was very subtle. None of
the witnesses sobbed loudly; only pens scratching and note pads turning
could be heard. Media witness Brian Barks said Ceja looked dead before
the execution even began, but added that it looked humane. He said that
the execution "looked like putting your dog to sleep."
State officials described the execution as "calm,
cool, and clinical."
Ceja was given injections in both arms--sodium
pentothal to render him unconscious, then pancuronium bromide to
paralyze his respiratory system and finally potassium chloride that
stopped his heart.
About 10 family members were allowed non-contact
visits with him until 6 pm. Those witnesses included his mother.
About 30 people witnessed the execution, including
state and prison officials.
However, at Ceja's request, no family members were on
hand to watch the execution. Ceja asked for certain clergy members to be
Yesterday, the Arizona Board of Executive Clemency and
the US Supreme Court both denied mercy for Ceja, bringing an end to his
23-year stay on death row.
According to the case record, Ceja shot Linda Leon
twice in the chest with a .22-caliber pistol on June 30, 1974, then
dragged her body into a bedroom where he used a pillow to muffle 4 more
shots in the head.
When Randy Leon returned home, Ceja shot him 4 times.
Ceja disputed the description of the crime offered by
the state's attorneys, who argued he reloaded to fire more shots into
Linda Leon and kicked Randy Leon in the head.
Ceja said that "there was never any reloading. I
don't know where that came from."
The case record also showed Ceja confessed to kicking
Randy Leon, but Ceja said yesterday that "I don't ever recall
saying that. I was crying, and I was real distraught, but I don't recall
Earlier Tuesday, the Supreme Court rejected an
emergency stay of execution shortly after the clemency board voted 4-1
against commuting Ceja's sentence to life imprisonment.
The clemency hearing, held at the prison complex in
Florence, southeast of Phoenix, lasted 5 hours. It included testimony
from Ceja's wife, who wanted him killed, and the judge who twice
sentenced him to death, asking that his life be spared.
Ceja watched the proceedings, handcuffed and seated,
behind a thick pane of plexiglass. Offering his only description of the
crime, Ceja said that "it was an argument that just got very out of
The clemency board has let the death sentence stand in
all 9 cases that have come before it since the penalty was reinstituted
Ceja's attorney, Charles Van Cott, argued that Ceja
had already served the equivalent of a life sentence while waiting to be
executed, stating that "it is cruel and unusual to sentence someone
to both a life sentence and a death sentence."
But Juan Martinez, a deputy county attorney arguing
for the state, said Ceja's 23 years on death row mirrored the ages of
his victims, Randy and Linda Leon, who were 24 and 22 respectively, when
they were gunned down. He said: "Are we to pin a medal on him? Is
that so great, the fact he's served 23 years? And that through the mere
passage of time he's deserving of something? Today, after 23 long years,
it is his judgment day."
Ceja's legal avenues were dwindling in his final hours.
The US Supreme Court, in a 7-2 ruling, refused to
grant an emergency stay of execution.
Last Tuesday, the 9th US Circuity Court of Appeals in
San Francisco voted 2-1 to dismiss Ceja's federal appeal and deny a stay
of execution. Later, an unidentified judge of the Appeals Court sought a
rehearing before a larger panel, but the court said the request failed
to gain a majority among the court's 18 active judges.
With the clemency board recommending the death
sentence be carried out, Gov. Jane Hull was powerless to stop the
Kristie Ceja, in breif testimony at the clemency
hearing, said Ceja told her he had planned the robbery and shooting,
adding that "he has no remorse for anything he's done and if he had
to do it again, he would."
Martinez also showed copies of letters Ceja wrote to
Kristie threatening to kill her as "punishment." Ceja wrote in
a letter dated June 1996 that "I should mention to you that if you
put up any resistance while I am imposing punishment on you, you will
only make it worse on yourself!"
Testifying on Ceja's behalf was Melvin McDonald, the
former Maricopa County Superior Court judge who twice sentenced Ceja to
death for the shootings. He stated that "every murder is a horrible
crime. Every murder has a devastating impact on the relatives of the
victims murdered. But not every murder warrants the death penalty."
97 F.3d 1246
96 Cal. Daily Op. Serv. 7448, 96 Daily Journal
Jose Jesus CEJA, Petitioner-Appellant,
Terry STEWART, Director of Arizona Department of
Corrections; Donald Wawrzaszek, Superintendent of
Arizona State Prison, Respondents-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 15, 1995.
Submission Deferred Aug. 3, 1995.
Resubmitted May 22, 1996.
Decided Oct. 8, 1996.
Before: FLETCHER, FARRIS and
BEEZER, Circuit Judges.
Opinion by Judge FARRIS; Partial
Concurrence and Partial Dissent by Judge FLETCHER.
FARRIS, Circuit Judge:
Jose Jesus Ceja is on death row in
Arizona. He appeals the district court's denial of his habeas corpus
petition. We have jurisdiction. 28 U.S.C. §§ 1291 and 2253. We
In 1974, Ceja was tried, convicted
and sentenced to death for the drug related murders of Linda and
Randy Leon. The Arizona Supreme Court reversed his conviction and
sentence, primarily because of hearsay problems with ballistics
evidence. State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (1976).
In 1976, Ceja was retried,
convicted and again sentenced to death upon the finding of two
statutory aggravating factors. The Arizona Supreme Court, after
conducting an independent review of the record, found insufficient
evidence for one of the aggravating factors. It nonetheless affirmed
the death penalty on the basis of the second factor, that the crime
was "committed in an especially cruel, heinous and depraved manner."
State v. Ceja, 115 Ariz. 413, 565 P.2d 1274, 1278 (1977).
After the Supreme Court decided
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978),
the Arizona Supreme Court ordered the resentencing of all death row
inmates. Following a third aggravation and mitigation hearing,
conducted in 1979, Ceja was again sentenced to death. The Arizona
Supreme Court affirmed. State v. Ceja, 126 Ariz. 35, 612 P.2d 491
After the Arizona courts denied
him relief in a Rule 32 proceeding--the mechanism for state
collateral attacks--Ceja filed this habeas petition. It is his first
in federal court. The district court proceedings were stayed for
some time while Ceja returned to state court for a second Rule 32
proceeding. On May 5, 1994, the district court granted summary
judgment in favor of Arizona. Ceja's appeal was timely.
We review de novo the district
court's summary judgment. Carriger v. Lewis, 971 F.2d 329, 332 (9th
Cir.1992) (en banc), cert. denied, 507 U.S. 992, 113 S.Ct. 1600, 123
L.Ed.2d 163 (1993). Ceja raises forty-one claims in his petition.
For clarity, we reference each claim with the number assigned to it
in the district court, although we do not discuss the claims in
numerical order. The district court rejected on the merits claims 9,
12, 15-30, 32, and 33. It rejected on the basis of procedural
default claims 1-8, 10, 11, 13, 14, 31, and 34-41.
I. Claims Rejected on the Merits
by the District Court
A. Constitutionality of Arizona's
"Especially Heinous, Cruel or Depraved" Aggravating Factor (Claim
Ceja's death sentence was premised
on statutory aggravating circumstance (F)(6): "The defendant
committed the offense in an especially heinous, cruel or depraved
manner." A.R.S. § 13-703(F)(6) (formerly A.R.S. § 13-454(E)(6)).
There is no dispute that this aggravating circumstance is facially
vague. Arizona contends, however, that the Arizona courts applied a
constitutionally sufficient narrowing construction. Ceja counters
that the Arizona Supreme Court did not provide such a construction
until it decided State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert.
denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), three
years after it affirmed his death sentence in State v. Ceja, 126
Ariz. 35, 612 P.2d 491 (1980). While Ceja's appeal was pending, the
Arizona Supreme Court issued a stay of execution in State v. Mata,
No. CR-774104-AP/PC (Ariz. July 6, 1995), to determine whether state
or federal law required resentencing of those defendants who were
death-qualified by a pre-Gretzler (F)(6) finding. In the interests
of comity, we granted a stay of appeal. On May 9, 1996, the Arizona
Supreme Court lifted Mata's stay of execution, holding that "Gretzler
did not present a new, narrower interpretation of the (F)(6) factor,
but simply a digest" of valid narrowing constructions set forth in
earlier cases. On May 22, 1996, we lifted the stay of appeal.
In affirming Ceja's second and
third death sentences, the Arizona Supreme Court explained that a
heinous and depraved finding could be predicated on " 'additional
violence[ ] over and above that which was necessary to carry out the
defendant's criminal intent.' " Ceja, 612 P.2d at 495-96 (citing
Ceja, 565 P.2d at 1278). The Arizona courts found that Ceja shot
Linda six times, hitting her four times in the head and twice in the
chest, and that he shot Randy four times, hitting him once in the
chest, once in the back, once in the shoulder, and once in the arm.
The Arizona courts also found that Ceja kicked Randy in the head as
Randy lay dead or dying on the floor. The Arizona Supreme Court
concluded that Ceja's " 'conduct in continuing his barrage of
violence, inflicting wounds and abusing his victims, beyond the
point necessary to fulfill his plan to steal, beyond even the point
necessary to kill' " warranted (F)(6) aggravation. Id. (citing Ceja,
565 P.2d at 1278).
A narrowing construction of a
facially vague aggravating circumstance is constitutionally
sufficient if it helps the sentencer make a principled distinction
between those who deserve the death penalty and those who do not.
Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d
188 (1993). Citing its 1980 Ceja opinion, the Arizona Supreme Court
held in Gretzler that "the infliction of gratuitous violence on the
victim" was one of five narrowing constructions that could support
(F)(6) aggravation. 659 P.2d at 11 (citing State v. Ceja, 126 Ariz.
35, 612 P.2d 491 (1980)). The Supreme Court has twice approved this
narrowing construction, first in Lewis v. Jeffers, 497 U.S. 764,
770-71, 774-78, 783-84, 110 S.Ct. 3092, 3096-97, 3103-04, 111 L.Ed.2d
606 (1990), and again in Richmond v. Lewis, 506 U.S. 40, 51, 113
S.Ct. 528, 536, 121 L.Ed.2d 411 (1992) ("a murderer who
intentionally drives a car over his victim twice arguably commits 'gratuitous
violence' within the meaning of Gretzler, whether or not he knows
that the victim is dead after the first pass").
There is no distinction between
the "additional violence" narrowing construction applied by the
Arizona Supreme Court in the 1977 and 1980 Ceja opinions and the "gratuitous
violence" narrowing construction approved by the Supreme Court in
Jeffers and Richmond. The Arizona Supreme Court had provided an
adequate narrowing construction for aggravating circumstances
involving "additional violence" in 1977, prior to Ceja's
resentencing in 1979.
B. Sufficiency of Admissible
Evidence Supporting Aggravation Finding (Claims 12 and 13)
Ceja challenges the sufficiency of
admissible evidence supporting the (F)(6) finding. He contends that
admissible evidence does not support the finding that he inflicted
numerous gunshot wounds to both victims beyond the number necessary
to kill and repeatedly kicked Randy Leon in the head. We must affirm
if any rational factfinder could find beyond a reasonable doubt that
Ceja inflicted additional violence on his victims. See Lewis v.
Jeffers, 497 U.S. 764, 781-84, 110 S.Ct. 3092, 3102-04, 111 L.Ed.2d
Testimony at trial concerning the
multiple gun shot wounds was uncontradicted. The state's pathologist
testified (1) that each of the six shots to Linda's head and chest
could have killed her and (2) either the shot to Randy's back or the
shot to his chest could have killed him. At the sentencing hearing,
Detective Ysasi testified that he "did not know why [Ceja] kicked [Randy]
in the head." In a post-sentencing affidavit, the medical examiner
stated that he could not determine "with any degree of medical
certainty that [the] abrasions [on Randy's face] were caused by a
kick." This statement, and the medical examiner's observation that
the abrasions were "consistent with a fall to the floor" do not
contradict Detective Ysasi's testimony.
Based on either the evidence
regarding the multiple gunshot wounds or the testimony of Detective
Ysasi, a rational factfinder could conclude, as the Arizona courts
did, that Ceja inflicted additional violence on his victims.
C. Burden of Proof for Aggravating
Factors (Claim 15)
Ceja contends that the Arizona
courts erred in failing to find (F)(6) beyond a reasonable doubt,
the standard of proof the Eighth Amendment mandates for aggravating
circumstances. Arizona counters that we may presume that the Arizona
courts found (F)(6) beyond a reasonable doubt even though they never
used the reasonable doubt language. We agree. One month after it
affirmed Ceja's death sentence, the Arizona Supreme Court construed
its death penalty statute to require proof beyond a reasonable doubt.
State v. Jordan, 126 Ariz. 283, 614 P.2d 825, 828, cert. denied, 449
U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). It stated that it
had "always assumed ... that the state must prove the existence of
aggravating circumstances beyond a reasonable doubt," and noted that
its past practice was to "reduce a death penalty to life
imprisonment where the evidence of aggravating factors is
inconclusive." Id. (citing cases). The evidence of the multiple
gunshot wounds was uncontradicted, and the Arizona Supreme Court
affirmed Ceja's sentence after making "an independent examination of
the record to determine whether the death penalty was properly
imposed." Ceja, 612 P.2d at 495. The Arizona courts found (F)(6)
beyond a reasonable doubt. Cf. Clark v. Ricketts, 958 F.2d 851, 860
(9th Cir.) (Arizona Supreme Court presumed to have applied
reasonable doubt standard shortly after Jordan was decided), cert.
denied, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). The
record contains sufficient evidence to support a finding of (F)(6)
beyond a reasonable doubt.
D. Adequacy of Arizona Courts'
Consideration of Mitigating Evidence (Claims 18-24)
Ceja contends that the Arizona
courts (1) discounted mitigating evidence based on assumptions
unsupported by the record, (2) failed to give sufficient weight to
mitigating evidence, and (3) failed to weigh the combined impact of
all mitigating circumstances.
1. Evidence Supporting Factual Findings
Ceja attacks a number of factual
findings made by the sentencing court as "unsupported" by the
record. Each of these findings, however, is supported by direct or
circumstantial evidence introduced at trial or the sentencing
hearing. The sentencing court's findings that Ceja had on at least
one prior occasion stolen drugs and had used family and friends to
dispose of the drugs he stole from Randy and Linda are supported by
Ceja's former wife's testimony at the aggravation and mitigation
hearing. The sentencing court's finding that the killings "were not
the actions of a panic-stricken, inexperienced immature youth but
rather those of a mature, sophisticated criminal mind" are supported
by evidence of planning and concealment. The sentencing court's
finding that there was deliberation between the killings of Linda
and Randy can be inferred from circumstantial evidence. Ceja told
Detective Ysasi that after he had shot Linda and dragged her into
the bedroom, he saw Randy pull up to the house in his car. Because
his own gun was empty, Ceja went to the den, where he knew Randy
kept a gun, took it and confronted Randy when he entered the house.
Finally, as discussed in Part IB above, there was sufficient
evidence supporting the finding that Ceja kicked Randy.
2. Consideration Given to Each
Ceja contends that the sentencing
court failed to give sufficient weight to each "mitigating
circumstance because it had no guidance on the level of proof
necessary to establish a mitigating circumstance." The Arizona
courts were required to consider all mitigating evidence offered by
Ceja, Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57
L.Ed.2d 973 (1978), and it is apparent that they did so. It was for
the Arizona courts to "determine the weight to be given [that]
evidence." Eddings v. Oklahoma, 455 U.S. 104, 114-15, 102 S.Ct. 869,
877, 71 L.Ed.2d 1 (1982).
3. Weighing All Mitigating
Ceja also contends that the
sentencing court "did not consider 'the combined moral weight of all
the mitigating evidence.' " The Arizona courts were not required to
discuss each piece of evidence offered in mitigation. Jeffers v.
Lewis, 38 F.3d 411, 418 (9th Cir.1994), cert. denied, --- U.S. ----,
115 S.Ct. 1709, 131 L.Ed.2d 570 (1995). Nonetheless, the sentencing
court's oral decision demonstrates that it carefully considered the
mitigation evidence offered by Ceja. The sentencing court was not
impressed with this evidence in isolation or in total. It concluded
"there are no mitigating circumstances sufficiently substantial to
call for leniency" (emphasis added). In contrast, in Smith v.
McCormick the state trial and appellate courts discounted each
mitigating circumstance separately and concluded that " 'no
mitigating circumstance was sufficiently substantial to call for
leniency.' " 914 F.2d 1153, 1168 (9th Cir.1990) (emphasis added by
Smith panel) (quoting Montana Supreme Court).
The Arizona Supreme Court need not
have reweighed the aggravating and mitigating circumstances after
Ceja's 1979 resentencing because the sentencing court had found the
(F)(6) circumstance based upon an adequate narrowing construction
provided in 1977. Cf. Richmond v. Lewis, 506 U.S. 40, 49, 113 S.Ct.
528, 535, 121 L.Ed.2d 411 (1992) ("Where the death sentence has been
infected by a vague ... aggravating factor, the state appellate
court ... must actually perform a new sentencing calculus."). Even
if reweighing had been required, the Arizona Supreme Court complied
by reweighing the aggravating and mitigating circumstances and "find[ing]
no mitigating circumstances [that] would indicate the
inappropriateness of the death penalty." Ceja, 612 P.2d at 496.
E. Arizona Supreme Court's Failure
to Conduct Proportionality Review (Claim 28)
Ceja contends that his equal
protection and due process rights were violated when the Arizona
Supreme Court failed to conduct a proportionality review, as was its
stated practice at the time it reviewed Ceja's death sentence. There
is no federal right to proportionality review, Pulley v. Harris, 465
U.S. 37, 50-51, 104 S.Ct. 871, 879-80, 79 L.Ed.2d 29 (1984), and the
Arizona Supreme Court has since abandoned the practice. State v.
Salazar, 173 Ariz. 399, 844 P.2d 566, 583-84 (1992), cert. denied,
509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993). Ceja contends,
however, that the Arizona Supreme Court's failure to conduct a
proportionality review deprived him of a state created liberty
interest. Moran v. Godinez resolves this issue. 40 F.3d 1567 (9th
Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 479, 133 L.Ed.2d
407 (1996). "Only the denial or misapplication of state procedures
that results in the deprivation of a substantive right will
implicate a federally recognized liberty interest." 40 F.3d at 1574.
The Arizona Supreme Court conducted proportionality reviews to
insure that the sentence of death was not "disproportionate to the
penalty imposed in similar cases." State v. Richmond, 114 Ariz. 186,
560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988,
53 L.Ed.2d 1101 (1977). Arizona's application of an adequately
narrowed aggravating circumstance insured that Ceja's substantive
right to be free from a disproportionate sentence was not violated.
Cf. Walton, 497 U.S. at 656, 110 S.Ct. at 3058-59.
F. Abandoned Claims (Claims 9, 17,
25-27, 29, 30, 32 and 33)
Ceja does not discuss in his
briefs the district court's summary judgment of claims 9, 17, 25-27,
29, 30, 32, and 33. Ceja waives these claims. See Guam v. Reyes, 879
F.2d 646, 648 (9th Cir.1989) (issues not raised in appellant's brief
normally deemed waived); Zimmerman v. Bishop Estate, 25 F.3d 784,
788-789 (9th Cir.) (failure to challenge district court's holding on
issue waives any objection), cert. denied, 513 U.S. 1043, 115 S.Ct.
637, 130 L.Ed.2d 543 (1994).
II. Claims Rejected on the Basis of Procedural
A. Contested Claims Based on
Alleged Errors at Trial and Sentencing (Claims 1-3, 5-7, 11, and 41)
1. Procedural Default
Ceja contends that federal review
of claims 1-3, 5-7, 11, and 41 is not barred because the Arizona
courts rejected these claims on the merits in state collateral
proceedings. Arizona concedes that claim 41 was rejected on the
merits and is therefore properly reviewable on the merits. But it
disputes Ceja's contention with respect to the other claims.
We will not review the merits of a
federal habeas claim when the "state court declined to address [the]
prisoner's federal claims because the prisoner [ ] failed to meet a
state procedural requirement." Coleman v. Thompson, 501 U.S. 722,
730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). In that instance,
"the state judgment rests on independent and adequate state
procedural grounds." Id. A state court's rejection of federal
constitutional claims on the merits, however, does not rest on
independent and adequate state law grounds. Id. at 733, 111 S.Ct. at
2556 (habeas review not barred where state court decision is " 'interwoven
with [ ] federal law, and when the adequacy and independence of any
possible state law ground is not clear from the face of the opinion'
") (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct.
3469, 3476, 77 L.Ed.2d 1201 (1983)).
In Ceja's second Rule 32
proceeding, the trial court rejected his claims "for the reasons
stated in Response to Petitioner's Petition for Post Conviction
Relief...." In that brief, Arizona argued inconsistently that claims
1-3, 5-7, 11 were previously reviewed on the merits and waived: "[A]ll
of petitioner's grounds are precluded because petitioner either
knowingly, intelligently and voluntarily withheld them on direct
appeal or his previous Rule 32 proceeding, or they have been
previously determined against petitioner's position on the merits."
The Arizona Supreme Court denied review.
Preclusion does not provide a
basis for federal courts to apply a procedural bar. See Maxwell v.
Sumner, 673 F.2d 1031, 1034-35 (9th Cir.), cert. denied, 459 U.S.
976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). By adopting Arizona's
mixed arguments of preclusion and waiver with respect to these
claims, the state court in Ceja's second Rule 32 proceeding did not
clearly base its decision on independent and adequate state law
We disagree with the district
court's conclusion that these claims are procedurally barred, but
nonetheless reject them on their merits. See Garcia v. Bunnell, 33
F.3d 1193, 1195 (9th Cir.1994) (court may affirm on any ground
supported by the record), cert. denied, --- U.S. ----, 115 S.Ct.
1374, 131 L.Ed.2d 229 (1995).
a. Exclusion of Jurors for Their
Views on Capital Punishment (Claim 1)
Ceja contends that the trial court
improperly "death qualified" the jury, even though jurors would not
be required to make any determination with regard to punishment. A
prospective juror may be excused because of her views on capital
punishment if "those views would prevent or substantially impair the
performance of her duties as a juror." Hendricks v. Vasquez, 974
F.2d 1099, 1103 (9th Cir.1992). The state trial court made clear to
the jury that it would not be responsible for determining punishment,
but alerted the jury to the fact that the death penalty could be
imposed by the court. The court then asked jurors whether in light
of this fact, their views on capital punishment would "preclude them
from finding and determining the evidence" as they saw it. Two
jurors responded affirmatively and were excused. Excusing these
jurors was not inappropriate. See Hendricks, 974 F.2d at 1103; see
also Lockhart v. McCree, 476 U.S. 162, 172, 106 S.Ct. 1758, 1764, 90
L.Ed.2d 137 (1986) (" 'nullifiers' may properly be excluded from the
guilt-phase jury"); see also State v. Salazar, 173 Ariz. 399, 844
P.2d 566 (1992) (death qualification of Arizona jury was not error),
cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993).
b. Admission of Custodial
Statement Without a Voluntariness Hearing (Claim 2)
The trial court at Ceja's first
trial made a finding that his custodial statement was voluntary.
Ceja did not challenge the voluntariness of his custodial statement
before the retrial. The facts he points to now do not support such a
motion. Detective Ysasi's urging Ceja to tell the truth and
employing a "good cop" persona did not render Ceja's statements
involuntary. See United States v. Leon Guerrero, 847 F.2d 1363, 1366
(9th Cir.1988). His trial counsel was not required to file another
suppression motion at the retrial which would have been "meritless
on the facts and the law." Lowry v. Lewis, 21 F.3d 344, 346 (9th
Cir.), cert. denied, 513 U.S. 1001, 115 S.Ct. 513, 130 L.Ed.2d 420
c. Failure to Exclude Gruesome
Photos (Claim 3)
The allegedly prejudicial photos
are no longer available for us to review because the trial court
purged its files on February 22, 1984. Nonetheless, (1) the
prosecution's case hinged primarily on Ceja's confession, and (2)
Ceja was convicted without admission of the photos in his first
trial. The admission of the photos did not render Ceja's trial "fundamentally
unfair." McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir.), cert.
denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993).
d. Improper Closing Argument (Claim
Ceja complains that the prosecutor
made a variety of improper remarks in closing argument. "Counsel are
given latitude in the presentation of their closing arguments, and
courts must allow the prosecution to strike hard blows based on the
evidence presented and all reasonable inferences therefrom." United
States v. Baker, 10 F.3d 1374, 1415 (9th Cir.1993) (internal
quotations omitted), cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130
L.Ed.2d 289 (1994). We have reviewed the transcript of the
prosecutor's closing argument and are satisfied that the error, if
any, "did not amount to a miscarriage of justice." United States v.
Parker, 991 F.2d 1493, 1499 (9th Cir.), cert. denied, 510 U.S. 839,
114 S.Ct. 121, 126 L.Ed.2d 86 (1993).
e. Improper Felony Murder
Instructions (Claim 6)
Ceja contends that the trial
court's felony murder instruction relieved the state of its burden
to prove an element of the offense. Ceja was charged with felony
murder under former Ariz.Rev.Stat. § 13-452 ("A murder which is
perpetrated ... in the perpetration of, or attempt to perpetrate ...
robbery ... is murder of the first degree."). Ceja's reliance on
State v. Hankins, 141 Ariz. 217, 686 P.2d 740, 746 (1984) for the
necessary state law elements of felony murder is misplaced. The
felony murder statute discussed in Hankins was enacted after Ceja's
crimes. See Ariz.Rev.Stat. § 13-1105(A)(2) (enacted effective Oct.
f. Failure to Instruct on Lesser
Included Offense of Second Degree Murder (Claim 7)
Ceja contends that the jury should
have been given the opportunity to convict him on the lesser
included charge of second degree murder. In capital cases, where the
evidence would permit a jury rationally to find the defendant guilty
of the lesser offense and acquit him of the greater, the jury must
be instructed on the lesser included offense. Vickers v. Ricketts,
798 F.2d 369, 371 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107
S.Ct. 928, 93 L.Ed.2d 980 (1987). In Ceja's case the evidence did
not warrant a second degree murder instruction. Detective Ysasi
testified that Ceja admitted to both killings during the course of
his robbery of the Leons. There was also circumstantial evidence
that he premeditated. Ceja took the stand and testified to an
exculpatory series of events. The defendant's testimony and theory
of the case did not support a second degree murder conviction. Once
a juror accepted the state's theory of the case, he or she could not
have rationally concluded that the killings were second degree
murder. Cf. Vickers, 798 F.2d at 371 (finding of premeditation was
required for first degree murder conviction where no felony murder
was alleged). Based on the record evidence, due process did not
require a second degree murder instruction.
g. Disqualification of Trial Judge
Ceja contends that he was deprived
of his fundamental right to a fair and disinterested tribunal at the
1979 aggravation and mitigation hearing because the presiding judge
had been subjected to his (Ceja's) "profanities and vulgarities"
while on a tour of Arizona's death row. The sentencing judge sua
sponte recounted the episode, which had occurred approximately two
years earlier, in order to afford Ceja the opportunity to move for
disqualification before proceeding. The judge indicated his absolute
confidence that the episode would not affect his ability to apply
Arizona sentencing standards impartially. He further afforded
defense counsel the opportunity to discuss the matter with Ceja.
After doing so, defense counsel indicated--in Ceja's presence--that
the defense would not challenge the judge. Ceja was certainly
entitled to a fair and disinterested tribunal, but there is nothing
in the record to suggest that he was deprived of this right. See
Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1443 (9th
Cir.1995) ("a party cannot force a judge to recuse himself by
engaging in personal attacks on the judge"); United States v.
Wolfson, 558 F.2d 59, 62 (2d Cir.1977) (defendant's remarks "only
establish[ed his] feelings towards [the judge], not the reverse").
h. Cumulative Effect of All Errors
Multiple errors, even if harmless
individually, may entitle a petitioner to habeas relief if their
cumulative effect prejudiced the defendant. Mak v. Blodgett, 970
F.2d 614, 622 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct.
1363, 122 L.Ed.2d 742 (1993). No such cumulation of errors
B. Alleged Errors That Ceja Admits
Were Not Prejudicial (Claims 4, 8, 14, 31, 34-36, 38, and 40)
As to claims 4, 8, 14, 31, 34-36,
and 38 Ceja concedes that he is unable to show prejudice. We need
not determine whether these claims are procedurally barred. If Ceja
cannot show prejudice, he cannot prevail on the merits.
In his opening brief, Ceja also
conceded that he could not show prejudice as to claim 40. He
attempts to revoke this concession by arguing its merits for the
first time in his reply brief. He contends that State v. Richmond,
180 Ariz. 573, 886 P.2d 1329 (1994), decided after his opening brief
was filed, entitles him to an evidentiary hearing on this question.
Ceja has waived this claim. Gray v. Lewis, 881 F.2d 821, 823 n. 3
(9th Cir.), cert. denied, 493 U.S. 996, 110 S.Ct. 549, 107 L.Ed.2d
C. Ineffective Assistance of
Counsel (Claims 10, 37, and 39)
Ceja contends that the state
court's determination that his ineffective assistance of counsel
claims were waived does not bar federal review because Arizona's
waiver rules are applied inconsistently in death penalty cases. It
is unnecessary for us to consider this issue because Ceja cannot
prevail on the merits.
Ceja must demonstrate that his
counsels' performance was deficient and that these deficiencies
prejudiced him. See Strickland v. Washington, 466 U.S. 668, 686-87,
104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In establishing
prejudice, Ceja "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S.Ct. at
Most of Ceja's ineffective
assistance of counsel arguments are linked directly to his other
claims raised in this petition. He contends that his counsel should
have (1) objected to the trial judge's "death qualification" of the
jury venire, (2) prevented the prosecution from admitting Ceja's
custodial statements without a voluntariness hearing, and (3)
objected to the prosecutor's closing remarks. We have held that the
trial court did not err in empaneling the jury, admitting the
custodial statements, and permitting the prosecutor's remarks. Even
if Ceja's counsel had made timely objections or had raised these
issues on appeal, there is not a reasonable probability that the
result would have been different.
Ceja's other ineffective
assistance of counsel arguments also fail Strickland's prejudice
prong. He contends that in preparing for trial, his counsel should
have interviewed more witnesses, and that in preparing for the
sentencing hearing, his counsel should have investigated Arizona's
evidence of the alleged kick. But Ceja fails to explain what
compelling evidence additional interviews would have unearthed or to
explain how an investigation of aggravation evidence would have
negated the evidence of the multiple gunshot wounds. Moreover, as we
have noted, the medical examiner's post-sentencing affidavit did not
contradict the testimony regarding Ceja's kick to Randy's head.
When the clerk of this court
issues the mandate in this case, the stay of execution pending
appeal shall be of no further force and effect.
Judge, concurring in part, dissenting in part:
I concur in the judgment to the
extent the majority opinion affirms the district court's denial of
Ceja's habeas challenge to his conviction. I respectfully dissent
from the affirmance of Ceja's sentence.
I would hold that the Arizona
courts' failure to find the F(6) aggravating factor beyond a
reasonable doubt was constitutional error that had a substantial and
injurious effect on the sentence. I disagree with the majority that
we may presume that the Arizona courts found the F(6) factor beyond
a reasonable doubt. Nowhere in the trial court or state supreme
court's opinions is there any reference to having found the factor
beyond a reasonable doubt. Arizona's death penalty statute does not
by its terms provide that aggravating factors must be proven beyond
a reasonable doubt. See State v. Jordan, 126 Ariz. 283, 614 P.2d
825, 828, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251
(1980) ("The statute does not indicate the degree of certainty with
which these circumstances must be established."). It was not until
one month after Ceja's sentence was affirmed by the Arizona Supreme
Court that the Arizona Supreme Court first held that Arizona's death
penalty statute required that aggravating factors be proved beyond a
reasonable doubt. Jordan, 614 P.2d at 828.
We presume that state courts
follow the law. Jeffers v. Lewis, 38 F.3d 411, 415 (9th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995).
Thus, we presumed that the Arizona Supreme Court applied the
reasonable doubt standard to an appeal decided shortly after Jordan
was decided. Clark v. Ricketts, 958 F.2d 851, 860 (9th Cir.), cert.
denied, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). However,
we have never presumed that state courts follow law that has not yet
been decided. Cf. Southern Pac. Co. v. Jensen, 244 U.S. 205, 222, 37
S.Ct. 524, 531, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting) (law
is not a "brooding omnipresence in the sky but the articulate voice
of some sovereign or quasi-sovereign that can be identified"). That
the Arizona Supreme Court subsequently stated that it had "always
assumed ... that the state must prove the existence of aggravating
circumstances beyond a reasonable doubt," Jordan, 614 P.2d at 828,
is not evidence that it found the F(6) factor in Ceja's case. This
is essentially a post-decision statement by the members of the
Arizona Supreme Court as to their mental processes at the time they
affirmed Ceja's sentence, which may not be used as evidence in a
subsequent challenge to the decision. See Fayerweather v. Ritch, 195
U.S. 276, 306-07, 25 S.Ct. 58, 67-68, 49 L.Ed. 193 (1904) (testimony
of the mental processes of a judge not to be considered); Perkins v.
LeCureux, 58 F.3d 214, 220 (6th Cir.) ("[P]ost-decision statements
by a judge ... about his mental processes in reaching decision may
not be used as evidence in a subsequent challenge to the decision.")
(quoting Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11th Cir.1982)
(relying on Fayerweather)), cert. denied, --- U.S. ----, 116 S.Ct.
526, 133 L.Ed.2d 432 (1995). A state cannot excuse its failure to
find the existence of an aggravating factor beyond a reasonable
doubt by stating in a later opinion that it had always assumed that
reasonable doubt was required, although up to that time it had never
so held or even implied in any of its opinions.
This failure by the Arizona courts
to find the F(6) factor beyond a reasonable doubt violated Ceja's
constitutional rights. Although sentencing factors are not elements
of the crime and generally do not require a heightened standard of
proof, United States v. Restrepo, 946 F.2d 654 (9th Cir.1991) (en
banc), cert. denied, 503 U.S. 961, 112 S.Ct. 1564, 118 L.Ed.2d 211
(1992), the Supreme Court has recognized "that there may be an
exception to the general rule that the preponderance standard
satisfies due process when a sentencing factor has an extremely
disproportionate effect on the sentence relative to the offense of
conviction." Id. at 659 (citing McMillan v. Pennsylvania, 477 U.S.
79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).
The difference between life and
death decided on the basis of whether an aggravating factor exists
warrants such an exception, particularly in light of the Eighth
Amendment's "guarantee against the arbitrary or capricious
imposition of the death penalty." Lewis v. Jeffers, 497 U.S. 764,
782, 110 S.Ct. 3092, 3103, 111 L.Ed.2d 606 (1990).
The Supreme Court's opinion in
Lewis v. Jeffers further supports the conclusion that aggravating
factors used to determine whether a defendant will be executed must
be proven beyond a reasonable doubt.
In Lewis, the Supreme Court held
that the appropriate standard of federal habeas review of a state
court's application of an aggravating circumstance is the "rational
factfinder" standard established in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), i.e., "whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." 497 U.S. at 781, 110 S.Ct.
at 3102-03 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (citation
The Court explained, "Although
aggravating circumstances are not 'elements' of any offense, the
standard of federal review for determining whether a state court has
violated the Fourteenth Amendment's guarantee against wholly
arbitrary deprivations of liberty is equally applicable in
safeguarding the Eighth Amendment's bedrock guarantee against the
arbitrary or capricious imposition of the death penalty." Id. at
782, 110 S.Ct. at 3103. Because federal courts must review for
whether any rational trier of fact could have found the essential
elements of the aggravating factor beyond a reasonable doubt, the
trier of fact is required to find the elements beyond a reasonable
If, by contrast, the sentencer
needed to find the elements underlying the aggravating factor only
by a preponderance of the evidence, the federal court's review would
be whether any rational trier of fact could have found the elements
by a preponderance of the evidence. Cf. Creech v. Arave, 947 F.2d
873, 882 (9th Cir.1991), rev'd in part on other grounds, 507 U.S.
463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (overturning a death
sentence in a habeas proceeding because the trial court failed to
find specific intent "beyond a reasonable doubt," without discussing
whether the reasonable doubt requirement was based on federal or
I would thus hold that Ceja has an
Eighth Amendment right not to be put to death on the basis of
aggravating factors not found beyond a reasonable doubt by the trier
of fact. The Arizona courts' failure to find the F(6) factor beyond
a reasonable doubt had a "substantial and injurious effect on the
verdict" of death that warrants reversal on habeas review. Brecht v.
Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d
353 (1993); see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,
124 L.Ed.2d 182 (1993) (constitutionally erroneous reasonable-doubt
instruction warrants reversal of conviction on habeas review).
Because the Arizona courts'
failure to find the F(6) factor beyond a reasonable doubt warrants
the setting aside of Ceja's sentence, I would not reach Ceja's other
challenges to his sentence. As the majority rejects these challenges,
however, I note my disagreement on three additional claims.
First, I disagree with the
majority that a rational factfinder could have found the F(6) factor
beyond a reasonable doubt. There was not sufficient admissible
evidence to support the finding that Ceja repeatedly kicked Randy
Leon in the head. The only evidence the majority cites in support of
this finding is detective Ysasi's statement at the sentencing
hearing that he "did not know why [Ceja] kicked [Randy] in the head."
However, Detective Ysasi's statement came in response to a question
that assumed the fact of kicking without adequate foundation, so the
statement is not itself evidence that Ceja kicked Randy Leon.
Regardless of whether the evidence that Ceja shot Linda Leon four
times and Randy Leon six times is sufficient to establish
heinousness or depravity, cf. Richmond v. Lewis, 506 U.S. 40, 51,
113 S.Ct. 528, 536-37, 121 L.Ed.2d 411 (1982), the F(6) finding
The Arizona Supreme Court's
determination that the killings were heinous and depraved was based
upon "the totality of the circumstances of both killings," State v.
Ceja, 126 Ariz. 35, 612 P.2d 491, 495 (1980). Thus, if the evidence
was insufficient to support the kicking finding, the supreme court
would have to reexamine the totality of other circumstances, absent
any kicking, to determine whether the killings were heinous or
Second, I disagree with the
majority that Arizona had adequately narrowed and applied the F(6)
factor at the time of Ceja's sentencing. Ceja's death sentence is
premised on a single statutory aggravating factor-that "[t]he
defendant committed the offense in an especially heinous, cruel or
depraved manner." Ariz.Rev.Stat. § 13-703(F)(6). As the majority
acknowledges, this factor is facially vague. Walton v. Arizona, 497
U.S. 639, 652-55, 110 S.Ct. 3047, 3056-58, 111 L.Ed.2d 511 (1990);
see also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct.
1853, 1858-59, 100 L.Ed.2d 372 (1988) (holding that Oklahoma's "especially
heinous, atrocious, or cruel" aggravating circumstance is
unconstitutionally vague). Whether this facially vague aggravating
factor had been constitutionally narrowed so that the sentencer's "discretion
[was] suitably directed and limited," Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), is a federal issue
subject to de novo review. See Walton, 497 U.S. at 652-55, 110 S.Ct.
at 3056-58; Maynard, 486 U.S. at 361, 108 S.Ct. at 1857-58.
The Arizona Supreme Court had not
sufficiently narrowed the F(6) factor prior to Ceja's sentencing in
1979. At that time, the Arizona Supreme Court had decided just one
major case construing the F(6) factor, State v. Knapp, 114 Ariz.
531, 562 P.2d 704 (1977), cert denied, 435 U.S. 908, 98 S.Ct. 1458,
55 L.Ed.2d 500 (1978).
Knapp states that the words
"cruel, heinous, and depraved" provide sufficient guidance to the
sentencer, id. at 716 ("[t]he words ... have meanings that are clear
to a person of average intelligence and understanding"), a
proposition that has since been squarely rejected by the Supreme
Court. Walton, 497 U.S. at 654, 110 S.Ct. at 3057-58; Maynard, 486
U.S. at 363-64, 108 S.Ct. at 1858-59. In explaining what the words
mean, Knapp quotes Webster's dictionary definitions of the words:
heinous: hatefully or shockingly
evil: grossly bad.
cruel: disposed to inflict pain esp. in a wanton,
insensate or vindictive manner: sadistic.
depraved: marked by debasement, corruption,
perversion or deterioration.
Id. at 716. These equally vague
definitions do not constitute sufficient narrowing. See Shell v.
Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per
curiam); 498 U.S. at 2-3, 111 S.Ct. at 313-14 (Marshall, J.,
concurring) (vagueness of "heinous" aggravating factor not cured
when defined as "wicked or shockingly evil").
The Supreme Court's decision in
Richmond v. Lewis provides further support for the conclusion that
the Arizona Supreme Court had not adequately narrowed the F(6)
factor at the time of Ceja's sentencing. Richmond was predicated on
the assumption that the Arizona Supreme Court had not adequately
narrowed the F(6) factor in March 1980, years after Ceja was
resentenced. See Richmond, 506 U.S. at 47, 113 S.Ct. at 534 ("Respondents
do not argue that the factor had been narrowed adequately prior to
petitioner's resentencing. Thus it would have been error for Judge
Roylston to give weight to the (F)(6) factor [at petitioner's
resentencing in March 1980].") (emphasis added). As the State
previously conceded that the F(6) factor had not been adequately
narrowed as late as 1980 and the Supreme Court consequently held
that it was error for the trial judge to give weight to that factor
in 1980, I do not see how we can conclude that the trial court's
decision to sentence Ceja to death on the basis of the F(6) factor
in 1977 was anything but error.
The Arizona Supreme Court affirmed
Ceja's death sentence in May 1980. Ceja, 126 Ariz. 35, 612 P.2d 491.
The United States Supreme Court has said that even if the trial
judge relied on an invalid factor, the state appellate court can
cure this error by performing a new sentencing calculus. Richmond,
506 U.S. at 49, 113 S.Ct. at 535-36. Thus, if the Arizona Supreme
Court had performed a new sentencing calculus, the relevant date for
purposes of our review would be May 1980. But the Arizona Supreme
Court did not do so.
Although the court found the
evidence sufficient to establish the "heinous or depraved" portion
of F(6), this is different from concluding that the sentencer would
have found that the murder was especially heinous or depraved had
its discretion been suitably guided. The court did not reweigh or
engage in constitutional harmless error review.
And, lastly, unlike other cases
decided at the time, the court did not do a proportionality review
to determine independently whether Ceja's sentence was appropriate.
I disagree with the majority that Ceja's constitutional rights were
not violated by the Arizona Supreme Court's failure to engage in
proportionality review. While there is no federal Constitutional
right to proportionality review, Pulley v. Harris, 465 U.S. 37,
50-51, 104 S.Ct. 871, 879-80, 79 L.Ed.2d 29 (1984), state law may
create liberty interests protected by the Due Process Clause. Wolff
v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935
Although Arizona does not require
proportionality review by statute, the Arizona Supreme Court
required such review at the time that it reviewed Ceja's third death
sentence, because the court then believed that it "could not conduct
a 'meaningful appellate review of each death sentence' without
determining whether the sentence of death is disproportionate to the
penalty imposed in similar cases." State v. White, 168 Ariz. 500,
815 P.2d 869, 888 (1991) (quoting State v. Richmond, 114 Ariz. 186,
560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988,
53 L.Ed.2d 1101 (1977)), cert. denied, 502 U.S. 1105, 112 S.Ct.
1199, 117 L.Ed.2d 439 (1992).
In 1992, a reconstituted court
held that proportionality review was no longer required because of
perceived defects in the way the reviews were conducted and the
court's belief that other safeguards in the state's capital
punishment scheme were adequate. State v. Salazar, 173 Ariz. 399,
844 P.2d 566, 583 (1992), cert. denied, 509 U.S. 912, 113 S.Ct.
3017, 125 L.Ed.2d 707 (1993); White, 815 P.2d at 886-93.
"State law ... that guarantees a
criminal defendant procedural rights at sentencing, may give rise to
a state-created liberty interest protected from arbitrary
deprivation by the Fourteenth Amendment's Due Process clause."
Jeffers v. Lewis, 38 F.3d 411, 415 (9th Cir.1994). Integral aspects
of a state's capital sentencing scheme that ensure fairness and
uniformity create liberty interests protected by the Due Process
[W]here a state has provided a
specific method for the determination of whether the death penalty
shall be imposed, "it is not correct to say the defendant's interest"
in having that method adhered to "is merely a matter of state
procedural law." Id. at 346, 100 S.Ct. at 2229.
Fetterly v. Paskett, 997 F.2d
1295, 1300 (9th Cir.1993), amended, 15 F.3d 1472 (9th Cir.1994) (finding
a cognizable due process claim based upon the trial judge's failure
to comply with an Idaho statute requiring that each individual
aggravating circumstance be weighed against all mitigating factors),
cert. denied, 513 U.S. 914, 115 S.Ct. 290, 130 L.Ed.2d 205 (1994).
The Supreme Court has required
states to adopt capital punishment procedures that assure
reliability in sentencing determinations. Barclay v. Florida, 463
U.S. 939, 958-59, 103 S.Ct. 3418, 3429-30, 77 L.Ed.2d 1134 (1983) (Stevens,
J., concurring). As we noted in Fetterly, [p]art of the requirement
of reliability is "that the reasons present in one case will reach a
similar result to that reached under similar circumstances in
Because Fetterly may not have been
sentenced to death as prescribed by [Idaho law], this goal of
similar sentences in similar cases may not have been met. If the
sentencing judge did not follow Idaho's statutory procedures in
Fetterly's case, others similarly sentenced in Idaho have been and
will necessarily be treated differently....
997 F.2d at 1299 (internal
citations omitted). The same can be said here: The Arizona Supreme
Court's failure to conduct a proportionality review in Ceja's case
means that others similarly sentenced in Arizona were treated
differently. A state may not "ignore the essentials of its own Gregg
required rules regarding the manner in which the core decision of
who shall live and who shall die is made.... By definition, the life
or death decision necessarily becomes arbitrary if the manner in
which it is made is not authorized by the controlling law." Fetterly,
15 F.3d at 1483 (Trott, J., concurring in denial of request for en
banc review). A state may choose merely to narrow its aggravating
circumstances as a way of ensuring reliability in its sentencing.
Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511
However, once a state uses
particular procedures such as proportionality review to ensure
reliability and equity among defendants, these procedures must be
applied equally to all defendants. The Arizona Supreme Court
considered proportionality review to be an integral part of a scheme
to ensure that imposition of death sentences was not "excessive or
disproportionate" at the time it affirmed Ceja's sentence. Richmond,
560 P.2d at 51.
Thus, Ceja was constitutionally
entitled to such a review.
Cf. Collins v. Francis, 728 F.2d 1322 (11th Cir.) (although
proportionality review is not constitutionally mandated, once a
state establishes a right to such review defendants have a
constitutional right to have it conducted fairly), cert. denied, 469
U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Campbell v. Blodgett,
997 F.2d 512, 522 (9th Cir.1992) (Washington law requiring the state
supreme court to review each capital sentence imposed to determine
whether the sentence of death was imposed through passion or
prejudice created for capital defendants a protected liberty
interest in having such a review), cert. denied, 511 U.S. 1118, 114
S.Ct. 2125, 128 L.Ed.2d 682 (1994); United States v. Woodruff, 50
F.3d 673 (9th Cir.1995) (Nevada law requiring court to review and
make particularized findings that it is "just and proper" for
defendant to be adjudged habitual offender creates constitutionally
protected liberty interest).
As these errors had a substantial
and injurious effect on the sentence, I would grant the petition for
writ of habeas corpus to the extent of setting aside Ceja's death