Date of Birth:
December 2, 1962
Schackart and Charla Regan had
known each other since high school and they continued to be friends at
the University of Arizona.
On March 8, 1984, Schackart told
Regan he needed a place to stay since his parents had kicked him out of
their house. He also told her he needed to talk to her about his wife's
filing rape charges against him.
They went to a Tucson Holiday
Inn where Schackart raped Charla at gunpoint, hit her in the face with
the gun, strangled her to death, and stuffed a large sock into her mouth.
He later reported the killing to the police and claimed he had not
intended to kill Charla.
Presiding Judge: Michael John Brown
Prosecutor: Richard Nichols
Start of Trial: March 12, 1985
Verdict: March 16, 1985
Sentencing: May 3, 1985
Resentencing: December 7, 1993
State v. Schackart, 175 Ariz. 494, 858 P.2d 639 (1993).
State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997).
Schackart v. Ryan
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
March 13, 2009
RONALD DWIGHT SCHACKART, PETITIONER,
CHARLES L. RYAN,*FN1 ET AL., RESPONDENTS.
DEATH PENALTY CASE
MEMORANDUM OF DECISION AND ORDER
Petitioner, Ronald Dwight Schackart, filed
a Petition for Writ of Habeas Corpus alleging that he is imprisoned and
sentenced to death in violation of the United States Constitution. In
this Order, the Court reviews the merits of the eight remaining claims.
For the reasons set forth herein, the Court concludes that Petitioner is
not entitled to relief.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 1985, Petitioner was
convicted of sexual assault, kidnapping and first degree murder.
According to Petitioner's confession:*fn2
defendant and the victim had been friends. They intended to meet for
lunch on March 8[, 1984], to discuss his recent problems. Upon discharge
from the army, defendant had allegedly returned home to find his wife in
bed with a man. He also had been charged with sexually assaulting his
wife, an accusation he denied. Defendant was out of work. He had no
place to stay, having just moved from his parents' house following an
argument. In an effort to help him, the victim drove defendant to the
Holiday Inn so he could rent a room.
They talked for awhile in the room.
Defendant claimed he became upset thinking about his wife and began
confusing the victim with her. He pulled a gun out and asked if she
would have sex with him. She refused, so he forced her to comply at
gunpoint. The two remained in the room for several hours. When the
victim appeared to be sleeping, defendant struck her on the neck with
the gun butt, allegedly to knock her out. The blow, however, did not
render her unconscious. Instead, she awoke and began screaming.
Defendant then strangled her. Petitioner drove to the home of his
pastor, who accompanied him to his mother's house. After he told his
mother what had happened, he turned himself in to the police. The victim
was found at the Holiday Inn dead from strangulation and with a sock
stuffed in her mouth.
Pima County Superior Court Judge Michael J. Brown sentenced
Petitioner to death for the murder and to a term of years for the other
counts. The Arizona Supreme Court affirmed the convictions for all three
crimes and the sentences for sexual assault and kidnapping. State v.
Schackart, 175 Ariz. 494, 858 P.2d 639 (1993) ("Schackart I"). The court
vacated the death sentence and remanded for a new sentencing hearing
because the transcript was inadequate for review. Id. at 499, 858 P.2d
at 644. On December 7, 1993, Petitioner was again sentenced to death for
the first degree murder conviction. That sentence was affirmed by the
Arizona Supreme Court. State v. Schackart, 190 Ariz. 238, 947 P.2d 315
(1997) ("Schackart II"). Petitioner filed a petition for post-conviction
relief (PCR) with the trial court and a subsequent addendum to the PCR
petition. (ROA 166, 167.)*fn3
The PCR petition was denied without a hearing. (Id. at 185.) The Arizona
Supreme Court summarily denied Petitioner's petition for review on May
28, 2003. (PR Doc. 26.)
PRINCIPLES OF EXHAUSTION AND PROCEDURAL
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a writ
of habeas corpus cannot be granted unless it appears that the petitioner
has exhausted all available state court remedies. 28 U.S.C. §
2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose
v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, a petitioner
must "fairly present" the operative facts and the federal legal theory
of his claims to the state's highest court in a procedurally appropriate
manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v.
Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78
(1971). If a habeas claim includes new factual allegations not presented
to the state court, it may be considered unexhausted if the new facts "fundamentally
alter" the legal claim presented and considered in state court. Vasquez
v. Hillery, 474 U.S. 254, 260 (1986).
In Arizona, there are two primary
procedurally appropriate avenues for petitioners to exhaust federal
constitutional claims: direct appeal and post-conviction relief
proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs
PCR proceedings and provides that a petitioner is precluded from relief
on any claim that could have been raised on appeal or in a prior PCR
petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule
32.2(a) may be avoided only if a claim falls within certain exceptions (subsections
(d) through (h) of Rule 32.1) and the petitioner can justify why the
claim was omitted from a prior petition or not presented in a timely
manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).
A habeas petitioner's claims may be
precluded from federal review in two ways.
First, a claim may be procedurally
defaulted in federal court if it was actually raised in state court but
found by that court to be defaulted on state procedural grounds. Coleman,
501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the
petitioner failed to present it in state court and "the court to which
the petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally
barred." Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931
(9th Cir. 1998) (stating that the district court must consider whether
the claim could be pursued by any presently available state remedy). If
no remedies are currently available pursuant to Rule 32, the claim is "technically"
exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1;
see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Because the doctrine of procedural default
is based on comity, not jurisdiction, federal courts retain the power to
consider the merits of procedurally defaulted claims. Reed v. Ross, 468
U.S. 1, 9 (1984). As a general matter, the Court will not review the
merits of a procedurally defaulted claim unless a petitioner
demonstrates legitimate cause for the failure to properly exhaust the
claim in state court and prejudice from the alleged constitutional
violation, or shows that a fundamental miscarriage of justice would
result if the claim were not heard on the merits in federal court.
Coleman, 501 U.S. at 750.
Ordinarily "cause" to excuse a default
exists if a petitioner can demonstrate that "some objective factor
external to the defense impeded counsel's efforts to comply with the
State's procedural rule." Id. at 753. Objective factors which constitute
cause include interference by officials which makes compliance with the
state's procedural rule impracticable, a showing that the factual or
legal basis for a claim was not reasonably available, and
constitutionally ineffective assistance of counsel. Murray v. Carrier,
477 U.S. 478, 488 (1986).
LEGAL STANDARD FOR RELIEF UNDER THE AEDPA
The AEDPA established a "substantially
higher threshold for habeas relief" with the "acknowledged purpose of 'reducing
delays in the execution of state and federal criminal sentences.'"
Schriro v. Landrigan, 127 S.Ct. 1933, 1939-40 (2007) (quoting Woodford
v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's "'highly deferential
standard for evaluating state-court rulings' . . . demands that state-court
decisions be given the benefit of the doubt." Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997)).
Under the AEDPA, a petitioner is not entitled to habeas relief on any
claim "adjudicated on the merits" by the state court unless that
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). The relevant state
court decision is the last reasoned state decision regarding a claim.
Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403
F.3d 657, 664 (9th Cir. 2005).
"The threshold question under AEDPA is
whether [the petitioner] seeks to apply a rule of law that was clearly
established at the time his state-court conviction became final."
Williams v. Taylor, 529 U.S. 362, 390 (2000).Therefore, to assess a
claim under subsection (d)(1), the Court must first identify the "clearly
established Federal law," if any, that governs the sufficiency of the
claims on habeas review. "Clearly established" federal law consists of
the holdings of the Supreme Court at the time the petitioner's state
court conviction became final. Williams, 529 U.S. at 365; see Carey v.
Musladin, 549 U.S. 70, 74 (2006); Clark v. Murphy, 331 F.3d 1062, 1069
(9th Cir. 2003). Habeas relief cannot be granted if the Supreme Court
has not "broken sufficient legal ground" on a constitutional principle
advanced by a petitioner, even if lower federal courts have decided the
issue. Williams, 529 U.S. at 381; see Musladin, 549 U.S. at 77; Casey v.
Moore, 386 F.3d 896, 907 (9th Cir. 2004). Nevertheless, while only
Supreme Court authority is binding, circuit court precedent may be "persuasive"
in determining what law is clearly established and whether a state court
applied that law unreasonably. Clark, 331 F.3d at 1069.
The Supreme Court has provided guidance in
applying each prong of § 2254(d)(1). The Court has explained that a
state court decision is "contrary to" the Supreme Court's clearly
established precedents if the decision applies a rule that contradicts
the governing law set forth in those precedents, thereby reaching a
conclusion opposite to that reached by the Supreme Court on a matter of
law, or if it confronts a set of facts that is materially
indistinguishable from a decision of the Supreme Court but reaches a
different result. Williams, 529 U.S.at 405-06; see Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam). In characterizing the claims subject to
analysis under the "contrary to" prong, the Court has observed that "a
run-of-the-mill state-court decision applying the correct legal rule to
the facts of the prisoner's case would not fit comfortably within §
2254(d)(1)'s 'contrary to' clause." Williams, 529 U.S. at 406; see
Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004).
Under the "unreasonable application" prong
of § 2254(d)(1), a federal habeas court may grant relief where a state
court "identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the particular
. . . case" or "unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it
should apply." Williams, 529 U.S. at 407. For a federal court to find a
state court's application of Supreme Court precedent "unreasonable"
under § 2254(d)(1), the petitioner must show that the state court's
decision was not merely incorrect or erroneous, but "objectively
unreasonable." Id. at 409; Landrigan, 127 S.Ct. at 1939; Visciotti, 537
U.S. at 25.
the standard set forth in § 2254(d)(2), habeas relief is available only
if the state court decision was based upon an unreasonable determination
of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El
II). A state court decision "based on a factual determination will not
be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding." Miller-El,
537 U.S. 322, 340 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d
992, 999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2),
state court factual determinations are presumed to be correct, and a
petitioner bears the "burden of rebutting this presumption by clear and
convincing evidence." 28 U.S.C. § 2254(e)(1); Landrigan, 127 S.Ct. at
1939-40; Miller-El II, 545 U.S. at 240.
Petitioner alleges that his constitutional
rights were violated by the court's inadequate voir dire of jurors
regarding the death penalty. Specifically, Petitioner contends that the
court failed to follow the principles of Witherspoon and improperly
excused two jurors based on their opposition to the death penalty.
This claim was raised in Petitioner's PCR
petition (ROA 166 at 4-5) and found precluded pursuant to Rule
32.2(a)(3) due to Petitioner's failure to raise the claim on appeal (ROA
185 at 7). The Arizona Supreme Court summarily denied the Petition for
Review. (PR Doc. 26.) Therefore, this claim is procedurally defaulted.*fn4
Petitioner alleges ineffectiveness of
appellate counsel as cause to excuse the default.*fn5
To establish ineffective assistance of counsel (IAC) on appeal,
Petitioner must show that his counsel's performance was deficient and
that the deficient performance caused him prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Evitts v. Lucey, 469 U.S. 387, 396
(1985) (recognizing the right to effective assistance of counsel for a
first appeal as of right). To establish prejudice, a petitioner must
show that there is a "reasonable probability" that, absent counsel's
errors, the result of the appeal would have been different. Strickland,
466 U.S. at 694. Thus, the Court will assess the merits of Claim 1 to
determine whether, if it had been raised on appeal, there is a
reasonable probability it would have been successful.
The following exchange regarding the death
penalty took place during voir dire:
THE COURT: First degree murder, ladies and
gentlemen, is a Class 1 felony. It's punishable by either death or by
imprisonment. The decision as to which of those sentences shall be
imposed is made by the trial judge after a separate sentencing hearing.
It's not made by the jury. Is there anything about that fact that would
prevent you from being a fair and impartial juror in this case? (No
COURT: Do any of you -- yes, Mr. Soto?
MR. SOTO: I don't believe in capital
THE COURT: Is there anything -- what I
need to know is whether or not -- you obviously have an opinion or
believe about capital punishment. Aside from the fact that you don't
believe in that, Mr. Soto, the question that I have for you is: Is your
opinion or belief so strong that it would either prevent you or
substantially impair your ability to perform your sworn duty as a juror
in this case to well and truly try the issues in the case according to
the law and the evidence?
MR. SOTO: Yeah, it would, really.
THE COURT: Okay. In other words, what
you're telling me, Mr. Soto, is that because of your opinion you believe
that you would be unable to sit as a judge in this case of the facts and
try the guilt or innocence of the defendant?
MR. SOTO: Yeah.
THE COURT: I'm sorry. You have to speak up
because the gentleman is taking down the answers. You believe -- I just
want to know if you believe that your opinion is so strong that you
couldn't sit as a trial juror in the case?
MR. SOTO: Yes. Yeah, I --
THE COURT: All right. I'll excuse you, Mr.
Soto, because of that answer. (RT 3/12/85 at 34-35.) The Court denied
the defense request for additional questioning of Mr. Soto regarding
whether he could decide guilt without considering the consequences. (Id.
at 36.) The court proceeded to question the other juror who had
responded affirmatively to the court's initial question:
THE COURT: Mr. Westerfield? All I want to
know is whether you have an opinion.
MR. WESTERFIELD: Yes, I do.
THE COURT: Okay. The question I have, Mr.
Westerfield, is whether that opinion, whatever it is, would affect your
ability to sit as a fair and impartial juror in the case. In other words,
could you not sit and judge the guilt or innocence of the defendant
based on the evidence in this case?
MR. WESTERFIELD: I'm afraid I could not.
THE COURT: All right. I appreciate your
candor and I will, in fact, excuse you based on the fact that you have
an opinion concerning capital punishment that would either prevent or
substantially impair your ability to sit as a trial juror in the case
and follow your oath as a juror to justly decide the evidence.
MR. WESTERFIELD: Yes, it is.
THE COURT: All right. You are then excused.
. . . (Id. at 37.) Defense counsel again objected to the dismissal. (Id.)
After finding this claim procedurally
barred, the PCR Court alternatively denied the claim on the merits,
concluding that the "prospective jurors in this case stated
unequivocally that their beliefs would prevent them from being able to
act impartially." (ROA 185 at 7.)
Clearly established Supreme Court law
provides that, when selecting a jury in a capital case, jurors cannot be
struck for cause "because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its
infliction." Witherspoon v. Illinois, 391 U.S. 510, 522 & n.21 (1968) (noting
that exclusion for cause is appropriate if views on the death penalty
would "prevent them from making an impartial decision as to the
defendant's guilt"). In other words, "[a] juror may not be challenged
for cause based on his views about capital punishment unless those views
would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath." Adams v. Texas,
448 U.S. 38, 45 (1980); see Wainwright v. Witt, 469 U.S. 412, 424
judge's exclusion of a juror for cause based on bias is a finding of
fact entitled to deference under 28 U.S.C. § 2254(e)(1). See Witt, 469
U.S. at 428-29 (applying an earlier version of statutory deference to
state court fact finding); see also State v. Trostle, 191 Ariz. 4, 12,
951 P.2d 866, 877 (1997) (deferring under Arizona law to trial court
findings of bias absent an abuse of discretion). Petitioner bears the
burden of rebutting the presumption with clear and convincing evidence
under 28 U.S.C. § 2254(e)(1). He does not attempt to meet this burden
and did not seek evidentiary development with respect to this claim.
Therefore, the Court must defer to the trial court's finding that the
two jurors were biased due to their views on the death penalty. Further,
the Court's review of the transcript reveals that the trial court struck
the two jurors because they attested that their views regarding capital
punishment would prevent or substantially impair their ability to sit as
a juror in the guilt-phase of Petitioner's case. (RT 3/12/85 at 34-35,
37.) Accordingly, the trial court's finding of bias is not unreasonable
in light of the state court record.*fn6
See 28 U.S.C. § 2254(d)(2). Because the jurors' views on the death
penalty prevented them from impartially judging Petitioner's guilt, they
were properly excluded pursuant to Witherspoon.
Petitioner's primary argument is that the
voir dire was too cursory and that simply asking a juror the ultimate
question -- whether his views would prevent or substantially impair the
performance of his duties as a juror -- was insufficient. Petitioner
cites Supreme Court law noting that voir dire and findings of juror bias
are more than "question-and-answer sessions which obtain results in the
manner of a catechism." Witt, 469 U.S. at 424. The Supreme Court has not
held that voir dire must be extensive and cannot be direct and focused
on the ultimate question; rather, the Court allows that less direct
inquires can be sufficient when examined in totality. See Darden v.
Wainwright, 477 U.S. 168, 175-77 (1986) (looking to entirety of voir
dire to determine if juror's performance would have been substantially
impaired because court did not ask the ultimate question); Witt, 469 U.S.
at 432-34 (looking to entirety of juror's responses because precise
language of standard not used). In so holding, the Court recognizes that
there is no formula applicable to voir dire because "many veniremen
simply cannot be asked enough questions to reach the point where their
bias has been made 'unmistakably clear.'" Id. at 424-25. However, in
Petitioner's case, the questioning was direct and the jurors answered
unambiguously that they could not be impartial; that is all that is
required. The PCR court's denial of this claim was not an unreasonable
application of governing Supreme Court law.
Even if the two jurors had been
inappropriately struck based on their views regarding the death penalty,
the Supreme Court has held: "We simply cannot conclude, either on the
basis of the record before us or as a matter of judicial notice, that
the exclusion of jurors opposed to capital punishment results in an
unrepresentative jury on the issue of guilt or substantially increases
the risk of conviction." Witherspoon, 391 U.S. at 518, 523 n.21 (stating
explicitly that its reversal of the death sentence did not affect the
conviction). In a subsequent reversal of a death sentence, based on
counsel not being allowed to ask jurors whether they would automatically
impose a sentence of death upon a finding of guilt, the Court
specifically noted that "[o]ur decision today has no bearing on the
validity of petitioner's conviction." Morgan v. Illinois, 504 U.S. 719,
728 (1992) (citing Witherspoon, 391 U.S. at 523 n.21); see also Ceja v.
Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996) (death qualification of
Arizona jurors not inappropriate).
This claim fails on the merits. Because
the claim is not meritorious, there is not a reasonable probability that
it would have changed the outcome of the appeal if raised by counsel.
See Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (no
prejudice from appellate counsel's failure to raise issue on direct
appeal when claim would not have provided grounds for reversal); Boag v.
Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (failing to raise meritless
argument not ineffective). Therefore, Petitioner cannot establish cause
and prejudice to overcome the default of this claim. Claim 1 is
dismissed as procedurally defaulted and, in the alternative, on the
9 and 10
Claim 9, Petitioner alleges that his Eighth and Fourteenth Amendment
rights to due process and a reliable capital case factual determination
were violated because he was sentenced by a biased judge. In Claim 10,
Petitioner alleges that his Eighth and Fourteenth Amendment rights were
violated by the sentencing judge's consideration and weighing of non-statutory
aggravating factors with respect to his capital sentence. Although these
claims are disparate, they rely primarily on the same occurrences at
sentencing; therefore, the Court sets forth a comprehensive factual
background as to both claims.
With respect solely to Claim 9, Petitioner
relies upon statements that occurred during his failed attempt to plead
guilty. Against the express advice of counsel, Petitioner decided to
plead guilty prior to the beginning of the presentation of evidence at
trial. (RT 3/13/85 at 2-34.) However, Petitioner declined to set forth
in open court the factual basis for his guilty plea. (Id. at 16-17.)
Instead, he agreed the court could use his March 8, 1994 statement to
the police as the factual basis. (Id. at 17.) Petitioner told the court
that the statement might not be entirely true but that he still wanted
to base his guilty plea upon it. (Id. at 17-18.) The court directed
Petitioner to review his statement, after which he identified the
portions he considered inaccurate. (Id. at 18-19, 22-34.) During that
discussion, the following exchange took place:
THE COURT: All right. Before we go all the
way through the statement, Mr. Schackart, I'm not sure what changes you
have made or what you disavow in the statements, but I might save a
whole lot of time if you're going to tell me that you did actually
commit these offenses.
THE DEFENDANT: No, I'm not going to -- to
incriminate myself more.
THE COURT: If you would tell me either by
this statement or in some other fashion, orally or otherwise, that you
did, in fact, do what you have pled guilty to --
THE DEFENDANT: Well, if you have been
sworn in and pled guilty to something, then obviously you must be guilty
of it, right?
COURT: Mr. Schackart, I'm not going to play word games with you.
THE DEFENDANT: It is not a word game,
Judge. I don't feel that I have to go through and incriminate myself any
more than I already have.
THE COURT: Well, unless there is a factual
basis that you are willing to acknowledge that you did, in fact, commit
these crimes that you have been charged with in the indictment, then I
am not going to accept the plea. Do you understand that?
THE DEFENDANT: I guess so. So I guess you
can then not accept it because of the numerous statements which I have
written down that I have to disavow.
(Id. at 23-24.)
The court responded, "I am willing to take
your plea," and proceeded to engage Petitioner in a series of questions
and a further review of his statement. (Id. at 24-34.) After Petitioner
disavowed many portions of his statement, the court rejected his plea. (Id.)
Petitioner's counsel expressed concern
that jurors would be exposed to media coverage of Petitioner's attempt
to plead guilty. (Id. at 38.) The judge responded:
I'm not going to assume that they are
going to disobey the admonishment of the Court, and, so, we are just
going to proceed, you know.
I'm not convinced that Mr. Schackart was
unaware of the outcome of, the probable outcome of this charade this
morning before he started it, and I know that he was not unaware of the
fact that it would be heavily covered by the media.
So, in any event, I'm going to have the
jury in and admonish them once again that, as I did yesterday, about
listening to the media or reading the media or watching the media
accounts of the trial, and we're going to do that right now. (Id.)
The remaining statements by the judge
occurred during sentencing and are relevant to Claims 9 and 10. The
following three statements upon which Petitioner relies were part of the
court's discussion of the sentences for kidnapping and sexual assault:
The Court has further considered that you
have steadfastly refused to acknowledge your sexual assault of the
victim while at the same time relying on your own statements concerning
that sexual assault to Detective Reuter and to Dr. Bendheim as forming a
part of the basis upon which you elicited testimony from Dr. Bendheim
for purposes of mitigating the sentencing in this action.
The Court further finds as an aggravating
factor that you have specifically lied to the Court with respect to your
depiction of when you stuffed the knee sock into the victim's mouth.
. . . [I]t is not probable that you will
ever be rehabilitated . . . . (RT 12/7/93 at 18-21.)
Next, Petitioner challenges the following
acknowledged that it was your custom to terminate marital arguments
unilaterally, and in the event Miss Pajkos, your wife, attempted to
continue them past your deadline you would then end the argument by
slapping or hitting her. You acknowledge forcing yourself upon her in
December of 1983 while using a knife to threaten her to comply.
The Court finds that the fact that you
chose and continue to make her the sine qua non of your depraved
behavior instead of postulating that your use of her as punching bag and
your treatment of her as if she was chattel may have had some
significant influence on her actions is unsatisfactory at best and is
hardly a mitigating factor. (Id. at 23 (emphasis added)*fn7.)
Petitioner challenges several statements
the court made during its discussion of the (F)(6) aggravating factor,
that the crime was cruel, heinous, or depraved: Your entire manner and
demeanor before, during and since this trial, your treatment of this
process as merely some new intellectual game leads this Court to the
conclusion that your only familiarity with remorse is the spelling and
pronunciation of the word. You wrote to me, "the knowledge that Charlie
is forever gone from this plane of existence is made especially painful
by the fact that her life literally passed through my hands."
You may think that to have been a clever
turn of phrase; I find that it is a snide word game describing a foul
murder perpetrated by you. It speaks volumes not of remorse or of
respect for Ms. Regan, but of a mind so supercillious [sic] and full of
self that it believes it is permissible to be cute about this crime. It
says that you committed these crimes with a depraved mind and a
(Id. at 26-27 (emphasis added)*fn8.)
After the court completed its review of the aggravating and mitigating
factors and concluded that there was no mitigation sufficiently
substantial to call for leniency, it expounded upon the basis for
capital punishment in society, including deterrence, stating "while we
can only hope that capital punishment will deter others, we know it will
deter you." (Id. at 29-30.)
Claim 9 Analysis
Respondents concede this claim of judicial
bias is properly exhausted to the extent it is premised on the
resentencing hearing. (Dkt. 47 at 62.) Petitioner's complaint is limited
to a violation of his rights at resentencing; he does not assert a
violation relating to trial.
Although Petitioner relies on examples
from trial to demonstrate the judge's bias, he did so in state court as
well. (Appellant's Revised Opening Br. (CR-93-0535-AP) at 39-44.) The
Arizona Supreme Court did not find these allegations clearly barred to
the extent they were tied to the resentencing, Schackart II, 190 Ariz.
at 256, 947 P.2d at 333; therefore, the Court considers them. The
Arizona Supreme Court denied this claim finding that the incidents upon
which Petitioner relied did not demonstrate "bias nor any deep-seated
favoritism." Id. at 256-57, 947 P.2d at 333-34.
Petitioner appears to argue that his judge
was actually biased against him, which would render his sentence
fundamentally unfair in clear violation of due process. See Bracy v.
Gramley, 520 U.S. 899, 905 (1997) (due process requires that a defendant
receive a "fair trial in a fair tribunal."); Arizona v. Fulminante, 499
U.S. 279, 308-10 (1991) (the presence of an impartial judge is so basic
to a fair trial that its violation is never subject to harmless error
review); In re Murchison, 349 U.S. 133, 136 (1955). However, the only
Supreme Court case Petitioner cites, Ward v. Village of Monroeville,
Ohio, 409 U.S. 57, 59-62 (1972), involved not actual bias but the type
of situation the Court subsequently characterized as one "in which
experience teaches that the probability of actual bias" is too high to
be constitutional. Withrow v. Larkin, 421 U.S. 35, 47 (1975) (finding
rule necessary to prevent the "probability of unfairness"). In Withrow,
the Court further explained that "[a]mong these cases are those in which
the adjudicator has a pecuniary interest in the outcome and in which he
has been the target of personal abuse or criticism from the party before
him." Id.; see also Taylor v. Hayes, 418 U.S. 488, 501-03 (1974) (when
there are "marked personal feelings . . . present on both sides" arising
from the underlying litigation, it violates due process for a judge to
hear a subsequent contempt case because he has become embroiled with the
litigant and his behavior); Tumey v. State of Ohio, 273 U.S. 510, 523,
535 (1927) (finding due process violation because judge, who was also
the mayor, had direct pecuniary interest in a conviction as well as
motive to increase fine to benefit the town coffers).
The Supreme Court has also expressed this
rule more generally as "every procedure which would offer a possible
temptation to the average man as a judge . . . not to hold the balance
nice, clear and true between the State and the accused denies the latter
due process of law." In re Murchison, 349 U.S. at 136 (quoting Tumey,
273 U.S. at 532). Despite the seeming breadth of this principle, in
application, the Supreme Court has extended the protections of due
process beyond actual bias only in the two limited circumstances
identified in Withrow: where the judge has an interest in the outcome,
or where he has been personally impugned by the litigant leading to a
finding of contempt. Petitioner has not alleged, and the record refutes,
that either of these circumstances apply with respect to Petitioner's
sentencing by Judge Brown. Thus, it was not contrary to nor an
unreasonable application of clearly established Supreme Court law for
the state court not to presume bias.
Petitioner contends that a due process
violation is established if there was "a pervasive climate of partiality
or unfairness." (Dkt. 52 at 56.) In support of this rule, Petitioner
cites two circuit court cases. However, those cases categorize the above-quoted
rule as applicable to cases on direct review rather than as a standard
for a due process violation. See Duckett v. Godinez, 67 F.3d 734, 740-41
(9th Cir. 1995) (finding that conduct which might require reversal upon
direct review did not rise to the level of fundamental unfairness
implicating due process); United States v. DeLucca, 692 F.2d 1277, 1282
(9th Cir. 1982). Further, as discussed below, the Court's review of the
record did not reveal pervasive partiality. Petitioner's burden to
demonstrate actual bias is extremely high because there is a presumption
that judicial officials have "properly discharged their official duties."
Bracy, 520 U.S. at 909 (quoting United States v. Armstrong, 517 U.S.
456, 464 (1996)).
Additionally, the Supreme Court has held
that "only in the most extreme cases would disqualification [for bias or
prejudice] be constitutionally required." Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813, 821 (1986). That holding is premised on the ground that "the
law will not suppose a possibility of bias or favor in a judge, who is
already sworn to administer impartial justice, and whose authority
greatly depends upon that presumption and idea." Id. at 820 (quoting 3
W. Blackstone, Commentaries *361). Further, judges "are assumed to be
men of conscience and intellectual discipline, capable of judging a
particular controversy fairly on the basis of its own circumstances."
United States v. Morgan, 313 U.S. 409, 421 (1941). This principle is
particularly salient in this case because none of the instances cited by
Petitioner took place in front of the jury, nor was the jury involved in
sentencing. See DeLucca, 692 F.2d at 1282 (considering that many of the
instances cited to support claim of partiality took place outside the
jury's presence); see also Rowsey v. Lee, 327 F.3d 335, 341-342 (4th
Supreme Court has explained that "[j]udicial remarks during the course
of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge." Liteky v. United States, 510 U.S. 540, 555
(1994) (upholding the denial of a recusal motion, which has a lower
threshold than a due process violation for bias). Further, "expressions
of impatience, dissatisfaction, annoyance, and even anger" do not alone
signal partiality. Id. at 555-56. The factual instances upon which
Petitioner relies amount to comments by the sentencing judge that he
disbelieved the defendant, did not find him credible, disliked his
attitude or behavior, and found him deserving of the punishment imposed.
Such observations do not implicate bias rising to the level of a due
process violation. Rather, "[t]he judge who presides at trial may, upon
completion of the evidence, be exceedingly ill disposed towards the
defendant, who has been shown to be a thoroughly reprehensible person";
however, that knowledge and opinion may be "necessary to completion of
the judge's task" and the decisions he must render. Id. at 550-51 (citing
bench trials as an example of such necessity). While some of the judge's
commentary may have been superfluous, much of it was relevant to the
aggravating and mitigating factors presented to the court. See infra
discussion Claim 10. Moreover, conclusions regarding a defendant's
credibility and character are squarely within the province of the
The Arizona Supreme Court's finding that
the judge was not biased is entitled to deference. See 28 U.S.C. §
2254(e)(1); Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997).
More importantly, the cited occurrences and the record as a whole
indicate that Petitioner's sentencing was not fundamentally unfair in
violation of due process.*fn9
Claim 9 is denied.
Claim 10 Analysis
Respondents contend that this claim --
alleging the judge relied upon non-statutory aggravating factors in
imposing a death sentence -- was not properly exhausted and is
procedurally defaulted. Regardless of its procedural status,*fn10
the Court will dismiss this claim because it is plainly meritless. See
28 U.S.C. § 2254(b)(2) (allowing denial of unexhausted claims on the
merits); Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay
is inappropriate in federal court to allow claims to be raised in state
court if they are subject to dismissal under (b)(2) as "plainly
the extent Petitioner relies upon the court's statements when sentencing
him for kidnapping and sexual assault (RT 12/7/93 at 18-21), these
statements were clearly limited to the discussion of non-capital
offenses. Thus, there is no factual basis for Petitioner's argument that
the court relied on them as non-statutory aggravation for Petitioner's
The court's reference to Petitioner treating his wife as a punching bag
and as chattel (RT 12/7/93 at 23) occurred during discussion of a
statutory aggravating factor -- that Petitioner had previously been
convicted of a felony involving the use or threat of violence (A.R.S. §
13-703(F)(2)). The prior felony was Petitioner's assault of his then-wife.
(RT 12/7/93 at 21-22.) The court discussed Petitioner's evidence
regarding his ex-wife's character, which focus on her alleged infidelity
and lack of veracity and was proffered to mitigate this aggravating
factor. (Id. at 22-23.) The court's comments occurred in its concluding
remark rejecting Petitioner's mitigation related to the statutory
aggravating factor. (Id. at 23-24.) Thus, the court did not use this
characterization about Petitioner as an aggravating factor; rather, it
rejected the arguments Petitioner offered to mitigate a statutory
aggravator. Similarly, the other challenged comments were products of
the judge's analysis in support of his finding that Petitioner acted
with a depraved mind (RT 12/7/93 at 24-27), which is one prong of the
(F)(6) statutory aggravating factor.
Finally, the court's statement that
capital punishment would act as a deterrent with respect to Petitioner
was made after the court completed its review of the statutory
aggravating factors and all of the mitigation and determined that there
was no mitigation sufficiently substantial to call for leniency. (Id. at
29-30.) Thus, the Court already had concluded that Petitioner would be
sentenced to death. There is nothing to suggest the court used
deterrence as an aggravating factor.
"Non-statutory" aggravation evidence is
not recognized in Arizona; the only aggravating circumstances allowed to
support a death sentence are enumerated in the governing statute, A.R.S.
§ 13-703(F), and the sentencing court may only consider evidence in
aggravation that tends to establish a statutory aggravating factor.
State v. Gulbrandson, 184 Ariz. 46, 66, 906 P.2d 579, 599 (1995); State
v. Atwood, 171 Ariz. 576, 673, 832 P.2d 593, 656 (1992), overturned on
other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001).
Absent evidence to the contrary, a judge is presumed to focus only on
relevant sentencing factors. State v. Beaty, 158 Ariz. 232, 244, 762
P.2d 519, 531 (1988); Walton v. Arizona, 497 U.S. 639, 653 (1990) ("Trial
judges are presumed to know the law and to apply it in making their
decisions."), overturned on other grounds by Ring v. Arizona, 536 U.S.
584 (2002). The incidents cited by Petitioner fail to rebut the
presumption that the sentencing judge did not consider evidence in
aggravation that was not relevant to a statutory factor.
Additionally, the Arizona Supreme Court
conducted a separate, independent review of the aggravating and
mitigating factors and determined that Petitioner's death sentence was
appropriate. Schackart II, 190 Ariz. at 246, 947 P.2d at 323. Even if
the trial court had committed constitutional error at sentencing, a
proper and independent review of the mitigation and aggravation by the
state supreme court cured any such defect. See Clemons v. Mississippi,
494 U.S. 738, 750, 754 (1990) (holding that appellate courts are able to
fully consider mitigating evidence and are constitutionally permitted to
affirm a death sentence based on independent re-weighing despite any
error at sentencing). In Petitioner's case, the supreme court rejected
the (F)(2) factor and the heinous/depraved prong of the (F)(6) factor (the
findings during which the judge made the allegedly objectionable
statements), reweighed the remaining aggravation and mitigation, and
found a death sentence appropriate. Schackart II, 190 Ariz. at 251, 261,
947 P.2d at 328, 338.
As a final matter, Petitioner relies on
Lankford v. Idaho, 500 U.S. 110 (1991), in support of his related
argument that he did not receive sufficient notice of the non-statutory
aggravation upon which the judge relied. As discussed above, the record
is clear that the judge did not rely on non-statutory aggravation
regarding the capital sentence. Petitioner does not allege that he
received insufficient notice of the statutory aggravating factors
alleged by the prosecution and found by the court.
Petitioner is not entitled to relief on
Claim 10 and it is denied.
Petitioner alleges that his Eighth
Amendment right to be free of cruel and unusual punishment was violated
by the sentencing court's reliance on the (F)(6) aggravating factor,
which he contends is vague and overbroad. Regardless of exhaustion, the
Court will dismiss this claim because it is plainly meritless. See 28
U.S.C. § 2254(b)(2); Rhines, 544 U.S. at 277. Petitioner concedes,
although he disagrees with the resolution, that the Supreme Court
decided this issue against him prior to his resentencing (Dkt. 52 at
59). See Walton, 497 U.S. at 655 (upholding Arizona's (F)(6) factor as
providing sufficient guidance to the sentencer). Claim 11 is dismissed.
Petitioner alleges that it is cruel and
unusual punishment to carry out an execution more than twenty years
after the sentence was imposed. Respondents concede this claim is
properly exhausted. (Dkt. 47 at 68.) The Arizona Supreme Court rejected
the claim during Petitioner's second appeal, Schackart II, 190 Ariz. at
259, 947 P.2d at 336; it was further discussed and rejected during
Petitioner's PCR proceeding (ROA 167 at 45-49; ROA 185 at 20-21).
Because the Supreme Court has never held
that prolonged incarceration prior to execution violates the Eighth
Amendment, see Lackey v. Texas, 514 U.S. 1045 (1995) (mem.) (Stevens, J.
& Breyer, J., discussing denial of certiorari and noting the claim has
not been addressed), Petitioner cannot establish a right to federal
habeas relief under 28 U.S.C. § 2254(d), see Allen v. Ornoski, 435 F.3d
946, 958-60 (9th Cir. 2006). Additionally, numerous circuit courts,
including the Ninth Circuit Court of Appeals, have held that prolonged
incarceration under a sentence of death does not offend the Eighth
Amendment. See McKenzie v. Day, 57 F.3d 1493, 1493-94 (9th Cir.) (en
banc) (delay of 20 years), cert. denied, 514 U.S. 1104 (1995); White v.
Johnson, 79 F.3d 432, 438 (5th Cir.) (delay of 17 years), cert. denied,
519 U.S. 911 (1996); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir.) (delay
of 15 years), cert. denied, 515 U.S. 1173 (1995). The above-cited
circuit court opinions counter Petitioner's argument, based on Trop v.
Dulles, 356 U.S. 86, 101 (1958), that evolving standards of decency
support his argument. See Allen, 435 F.3d at 959. Finally, Petitioner's
reliance on international law does not alter the above Eighth Amendment
analysis. See Buell v. Mitchell, 274 F.3d 337, 370-76 (6th Cir. 2001).
Claim 12 is denied.
Petitioner alleges that his rights under
the Eighth Amendment and international law were violated by Arizona's
death penalty statute and the imposition of a death sentence under the
circumstances of his crime, which he contends do not set it apart from
the norm of first-degree murder cases. Respondents contend this claim is
exhausted to the extent it alleges an Eighth Amendment violation, but
procedurally defaulted to the extent it is premised on international law.
(Dkt. 47 at 71-72.) The Court agrees.
Petitioner alleges generally a violation
of international law but cites to his PCR petition addendum for the
specifics of the law at issue. (Dkt. 39 at 36 (citing ROA 167).) The
only PCR claim based on international law alleged that subjecting
Petitioner to the conditions of death row prior to execution was
inhumane (ROA 166, 167; ROA 185 at 21); that is the subject of Claim 12,
not Claim 14. Because Petitioner never argued before the Arizona courts
that Arizona's death penalty statute in general and his death sentence
in particular violate international law, that portion of the claim was
not fairly presented. If Petitioner were to return to state court now to
litigate these international law issues, the claim would be found waived
and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of
Criminal Procedure because it does not fall within an exception to
preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, these
portions of the claim are technically exhausted but procedurally
defaulted. Petitioner has not alleged cause and prejudice or a
fundamental miscarriage of justice to excuse the default. Moreover,
because Petitioner never identified in this Court how or what
international law was violated, the allegations necessarily fail.
This claim was raised as an Eighth
Amendment violation based on Furman v. Georgia in Petitioner's second
direct appeal (Appellant's Revised Opening Br. (CR-93-0535-AP) at 56);
therefore, as conceded by Respondents, that portion of the claim is
exhausted. In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court
held the death penalty statutes of Georgia and Texas to be
unconstitutional because they allowed arbitrary and unguided imposition
of capital punishment. Many states subsequently enacted new capital
statutes, a number of which survived the Court's further scrutiny in
Gregg v. Georgia, 428 U.S. 153 (1976). Observing that the death penalty
is "unique in its severity and irrevocability," id. at 187, the Gregg
Court concluded that a death sentence may not be imposed unless the
sentencing authority focuses attention "on the particularized nature of
the crime and the particularized characteristics of the individual
defendant." Id. at 206. In imposing the death sentence, the sentencer
must find the presence of at least one aggravating factor and then weigh
that factor against the evidence of mitigating factors. Id. The Court
refined these general requirements in Zant v. Stephens, 462 U.S. 862,
877 (1983), holding that a constitutionally valid capital sentencing
scheme must "genuinely narrow the class of persons eligible for the
death penalty and must reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of
murder." A death penalty scheme must provide an "objective, evenhanded
and substantively rational way" for determining whether a defendant is
eligible for the death penalty. Id. at 879.
In addition to the requirements of
determining eligibility for the death penalty, the Court has imposed a
separate requirement for the selection decision, "where the sentencer
determines whether a defendant eligible for the death penalty should in
fact receive that sentence." Tuilaepa v. California, 512 U.S. 967, 972
(1994). "What is important at the selection stage is an individualized
determination on the basis of the character of the individual and the
circumstances of the crime." Zant, 462 U.S. at 879. Accordingly, a
statute that "provides for categorical narrowing at the definition stage,
and for individualized determination and appellate review at the
selection stage" will ordinarily satisfy Eighth Amendment and Due
Process concerns, id., so long as the state ensures "that the process is
neutral and principled so as to guard against bias or caprice." Tuilaepa,
512 U.S. at 973.
Defining specific "aggravating circumstances" is the accepted "means of
genuinely narrowing the class of death-eligible persons and thereby
channeling the [sentencing authority's] discretion." Lowenfield v.
Phelps, 484 U.S. 231, 244 (1988). Each defined circumstance must meet
two requirements. First, "the [aggravating] circumstance may not apply
to every defendant convicted of a murder; it must apply only to a
subclass of defendants convicted of a murder." Tuilaepa, 512 U.S. at
972; see Arave v. Creech, 507 U.S. 463, 474 (1993). Second, "the
aggravating circumstance may not be unconstitutionally vague." Tuilaepa,
512 U.S. at 972; see Arave, 507 U.S. at 473; Godfrey v. Georgia, 446 U.S.
420, 428 (1980).
Arizona's death penalty scheme allows only certain, statutorily defined,
aggravating circumstances to be considered in determining eligibility
for the death penalty. A.R.S. § 13-703(F). "The presence of aggravating
circumstances serves the purpose of limiting the class of death-eligible
defendants, and the Eighth Amendment does not require that these
aggravating circumstances be further refined or weighed by [the
sentencer]." Blystone v. Pennsylvania, 494 U.S. 299, 306-07 (1990). Not
only does Arizona's sentencing scheme generally narrow the class of
death-eligible persons, the aggravating factors delineated in §
13-703(F) do so specifically. Rulings of the United States Supreme Court
and the Ninth Circuit have upheld Arizona's death penalty statute
against challenges that particular aggravating factors, including §
13-703(F)(6) (heinous, cruel and depraved), do not adequately narrow the
sentencer's discretion. See Lewis v. Jeffers, 497 U.S. 764, 774-77
(1990); Walton, 497 U.S. at 655-56; Woratzeck v. Stewart, 97 F.3d 329,
335 (9th Cir. 1996). The Ninth Circuit has explicitly rejected the
argument that Arizona's death penalty statute is unconstitutional
because "it does not properly narrow the class of death penalty
recipients." Smith v. Stewart, 140 F.3d 1263, 1272 (9th Cir. 1998).
There is no federal constitutional right
to proportionality review of a death sentence, McCleskey v. Kemp, 481
U.S. 279, 306 (1987) (citing Pulley v. Harris, 465 U.S. 37, 43-44
(1984)), and the Arizona Supreme Court discontinued the practice in
1992, State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992).
The Ninth Circuit has explained that the interest implicated by
proportionality review -- the "substantive right to be free from a
disproportionate sentence" -- is protected by the application of "adequately
narrowed aggravating circumstance[s]." Ceja, 97 F.3d at 1252.
Finally, clearly established federal law
holds that the death penalty does not constitute cruel and unusual
punishment. Gregg, 428 U.S. at 169; see also Roper v. Simmons, 543 U.S.
551, 568-69 (2005) (noting that the death penalty is constitutional when
applied to a narrow category of crimes and offenders).
Both the trial court and the Arizona
Supreme Court decided that a death sentence was appropriate after
reviewing the evidence in support of the asserted statutory aggravating
factor(s), recounting the proven statutory and non-statutory mitigating
factors presented by Petitioner, and weighing them against one another (RT
12/7/93 at 21-29). Schackart II, 190 Ariz. at 246-254, 260-61, 947 P.2d
at 323-331, 337-38. For all of these reasons, Claim 14 is denied.
Petitioner alleges that his Eighth and
Fourteenth Amendment rights were violated by the denial of a jury
determination of all the facts necessary for the imposition of a death
sentence. Although Respondents contest exhaustion, the Court will
dismiss the claim because it is plainly meritless. See 28 U.S.C. §
2254(b)(2); Rhines, 544 U.S. at 277.
This claim is premised on Ring v. Arizona,
536 U.S. 584, 609 (2002), which found that Arizona's aggravating factors
are an element of the offense of capital murder and must be found by a
jury. However, in Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme
Court held that Ring did not apply retroactively to cases already final
on direct review. Petitioner contends his case was not final because he
was pursuing relief under Arizona Rule of Criminal Procedure 32. The
Supreme Court has made clear that, for purposes of retroactivity, a case
is "final" after conviction, exhaustion of direct appeal availability,
and elapse of the time for a petition for certiorari. Griffith v.
Kentucky, 479 U.S. 314, 321 n.6 (1987). The Arizona Supreme Court has
adopted that analysis, holding that capital cases in which the direct
appeal mandate has issued, even if pending in a Rule 32 proceeding, are
final and not entitled to relief premised on Ring. State v. Towery, 204
Ariz. 386, 389-90, 394, 64 P.3d 828, 831-32, 836 (2003). Because
Petitioner's direct appellate review was final prior to Ring, he is not
entitled to relief premised on that ruling. Claim 15 is dismissed on the
alleges his right to equal protection was violated by the failure to
have a jury make all necessary factual determinations for a sentence of
death because non-capital defendants are afforded that right.
Respondents concede this claim was properly exhausted. (Dkt. 47 at 77.)
The Arizona Supreme Court summarily rejected this claim citing Jeffers
v. Lewis, 38 F.3d 411, 419 (9th Cir. 1994). Schackart II, 190 Ariz. at
260, 947 P.2d at 338.
In support of this claim, Petitioner cites
a dissenting opinion in Harris v. Alabama, 513 U.S. 504, 515 (1995) (Stevens,
J., dissenting). As Respondents note, Harris was not an equal protection
case; rather, it was an Eighth Amendment case in which the majority
found that judge-imposed capital sentences were constitutional. Harris,
513 U.S. at 515. Petitioner fails to cite, and the Court is not aware of,
any clearly established Supreme Court law in support of his position;
therefore, he cannot obtain relief on this claim. See Musladin, 549 U.S.
at 77. In addition, the Ninth Circuit has explicitly rejected the claim.
Jeffers, 38 F.3d at 419 (noting that judicial sentencing is rational as
it is potentially more consistent than jury sentencing) (quoting
Proffitt v. Florida, 428 U.S. 242, 252 (1976)).
Claim 16 is dismissed.
CERTIFICATE OF APPEALABILITY
In the event Petitioner appeals from this
Court's judgment, and in the interests of conserving scarce resources
that might be consumed drafting and reviewing a request for a
certificate of appealability (COA) to this Court, the Court on its own
initiative has evaluated the claims within the petition for suitability
for the issuance of a certificate of appealability. See 28 U.S.C. §
2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Rule 22(b) of the Federal Rules of
Appellate Procedure provides that when an appeal is taken by a
petitioner, the district judge who rendered the judgment "shall" either
issue a COA or state the reasons why such a certificate should not issue.
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner "has made a substantial showing of the denial of a
constitutional right." This showing can be established by demonstrating
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 were "adequate to deserve encouragement to proceed
further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot
v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a
COA will issue only if reasonable jurists could debate whether (1) the
petition states a valid claim of the denial of a constitutional right
and (2) the court's procedural ruling was correct. Id.
In a prior order, the Court determined
that reasonable jurists could debate its resolution of Claims 5 and 6(a)
(Dkt. 101 at 18); therefore, those claims will be included in the COA.
The Court finds that reasonable jurists, applying the deferential
standard of review set forth in the AEDPA, which requires this Court to
evaluate state court decisions in light of clearly established federal
law as determined by the United States Supreme Court, could not debate
its resolution of Petitioner's claims as set forth in this Order or its
order of September 14, 2005 (Dkt. 75).
IT IS ORDERED that Petitioner's Amended
Petition for Writ of Habeas Corpus (Dkt. 39) is DENIED. The Clerk of
Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that the stay of
execution entered on June 6, 2003 (Dkt. 3) is VACATED.
IT IS FURTHER ORDERED GRANTING a
Certificate of Appealability as to the following issues:
Whether Claim 5 -- alleging that
Petitioner's right to a fair and impartial jury was violated -- fails on
Whether Claim 6(a) -- alleging ineffective assistance of counsel for
failing to develop a proper factual record regarding the partiality of
the jury -- fails on the merits.
IT IS FURTHER ORDERED that the Clerk of
Court forward a copy of this Order to the Clerk of the Arizona Supreme
Court, 1501 W. Washington, Phoenix, AZ 85007-3329.
*fn1 Charles L. Ryan, as the current
Interim Director of the Arizona Department of Corrections, is
automatically substituted as Respondent pursuant to Federal Rule of
Civil Procedure 25(d).
This factual summary is based on the Court's review of the record and
the Arizona Supreme Court's opinion upholding Petitioner's convictions.
State v. Schackart, 175 Ariz. 494, 496-97, 858 P.2d 639, 641-42 (1993).
"ROA" refers to the seven-volume record on appeal from post-conviction
proceedings prepared for Petitioner's petition for review to the Arizona
Supreme Court (Case No. CR-02-0344-PC). "PR Doc." refers to the Arizona
Supreme Court's docket for Petitioner's petition for review in that
case. "RT" refers to reporter's transcript. The original reporter's
transcripts and certified copies of the trial and post-conviction
records were provided to this Court by the Arizona Supreme Court on
November 18, 2004. (Dkts. 66, 67.)
Petitioner's argument, that the state court's procedural bar language is
ambiguous, is unfounded. The PCR court clearly stated the claim had been
waived on appeal and relied upon Rule 32.2(a)(3) in finding it barred.
(ROA 185 at 7.) A procedural bar in Arizona state court based on Rule
32.2(a)(3) is an independent, see Stewart v. Smith, 536 U.S. 856, 860
(2002), and adequate bar to federal review of a claim, see Ortiz, 149
F.3d at 932; Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
The claim of ineffectiveness of appellate counsel was raised and denied
on the merits during Petitioner's PCR proceeding. (ROA 185 at 5-7.)
The Court rejects Petitioner's argument that he can rebut the state
court fact finding because it was not supported by the record as a whole.
Further, that contention was based on a pre-AEDPA version of the federal
habeas statute; the governing statute requires rebuttal by clear and
For the sake of clarity and accuracy the Court has repeated the entirety
of these two paragraphs, rather than the limited quotation cited by
Petitioner. The italicized language is that upon which Petitioner relies.
See supra note 7.
In addition to the facts set forth in the above factual background,
Petitioner cites fact paragraph sixty-four of the amended petition. (Dkt.
39 at ¶ 114.) That paragraph recites mitigation testimony by
Petitioner's expert, Dr. Bendheim, which appears unrelated to this claim.
(Id. at ¶ 64.) The following paragraph, however, addresses the
sentencing judge's questioning of Dr. Bendheim, comparing it to "a
prosecution cross-examination." (Id. at ¶ 65.) To the extent Petitioner
intended to rely on these facts, they do not impact the court's analysis
set forth in the body of the Order. The court's questioning of Dr.
Bendheim was allowed by court rule, Ariz. R. Evid. 614(b), comprised
only ten pages of the seventy-page testimony, and was reasonable. (See
RT 5/3/85 at 51-120.) The judge explained to counsel that as the finder
of fact he felt it necessary to gather additional information to assist
in making the sentencing determination. (Id. at 119-20.) Further, "[q]uestions
by a court indicating skepticism are not improper when the witnesses are
permitted to respond 'to the district court's expressed concerns to the
test [sic] of their ability.'" Shad v. Dean Witter Reynolds, Inc., 799
F.2d 525, 531 (9th Cir. 1986) (focusing on the impact of judge's
behavior on a jury) (quoting Sealy, Inc. v. Easy Living, Inc., 743 F.2d
1378, 1383 (9th Cir. 1984)). The witness was allowed to fully respond to
the court's questions (RT 5/3/85 at 104-14), and the court allowed the
defense to conduct additional redirect (id. at 114-17).
Petitioner argues that the Arizona Supreme Court "brushed over" the
specific statements by the sentencing judge that are at issue in this
claim. (Dkt. 52 at 58.) As noted by Respondents, Petitioner did not rely
on these examples in his appellate brief; rather, he focused on the
court's statements about capital punishment as an expression of
society's moral outrage. (Appellant's Revised Opening Br. (CR93-0535-AP)
at 14-15 (citing RT 12/7/93 at 29-30).) The supreme court reviewed the
entirety of the capital sentencing proceeding but focused on the
language emphasized by Petitioner in reaching its conclusion that the
sentencing judge did not rely on non-statutory aggravators. Schackart II,
190 Ariz. at 250, 947 P.2d at 327.
Ronald D. Schackart