Ninth Circuit Weekly Review (Jan. 2013 Edition), by Emily La Brecque

*We are currently developing this weekly post and still working out the formatting. Please excuse typos and formatting errors.

Cases:

• STATE OF ARIZONA v MANUEL OVANTE, JR. (Az)
• STATE OF ARIZONA v SHAWN RYAN GRELL (Az)
• Antwion Thompson v. D.L. Runnels (9th)
• ROGER SCOTT V. CHARLES RYAN (9th)
• RICHARD HURLES V. CHARLES L. RYAN (9th)
• JONATHAN GENTRY V. STEPHEN SINCLAIR (9th)
• Latisha Babb v. Jennifer Lozowsky (9th)
• ALBERT CUNNINGHAM V. ROBERT WONG (9th)
• Jennifer Henderson v. Deborah Johnson (9th)

State Supreme Court Decisions:

Arizona

STATE OF ARIZONA v MANUEL OVANTE, JR.Case Type: Criminal Case Number: CR-10-0085 Date Opinion Issued: 01/11/2013Issue(s): Can a defendant challenge the validity of his guilty plea as a part of the court’s mandatory direct review in a capital case? Is it necessary for a defendant to fully understand that premeditation distinguishes first-degree murder from second-degree murder before he is allowed to make a guilty plea? Are the limits on the amount of discretion allowed to Arizona prosecutors in their decisions to seek the death penalty unconstitutional? Is a prosecutor’s closing argument improper, such that it is a fundamental error, when it makes implications that the defendant has failed to take responsibility for his actions and/or when the prosecutor makes an “overly emotional” appeal? Does a trial court abuse its discretion by allowing the state to present evidence of the circumstances of a crime, at the beginning of the penalty phase? Is it fundamental error when the final jury instructions state that a defendant has admitted to statutory aggravating factors, but fails to identify the particular aggravating factors to the jury? Must a sentence be remanded for clarification if the trial judge orally pronounces that the sentences will run consecutively, but enters a minute entry ordering two of them to run concurrently? Holding: The court affirmed the death sentence of Manuel Ovante for the first-degree murder of Damien Vickers. Yes, a defendant can challenge the validity of his guilty plea as a part of the court’s mandatory direct review of the capital case. The rules of civil procedure addressing capital cases, do not distinguish between capital defendants who plead and those who are convicted at trial. Thus, the court will automatically review the validity of a plea on direct appeal, before it reviews the capital sentence. No, a trial court is not required to explain the distinction between first and second-degree murder, it is free to accept a guilty plea if it is satisfied that the record establishes premeditation. No, the amount of discretion allowed to Arizona prosecutors in their decisions to seek the death penalty is not unconstitutional. Prosecutorial discretion in Arizona is appropriately constrained by death penalty statues and appellate review. Prosecutors are allowed wide discretion, so, a defendant must show exceptionally clear proof or discrimination for the court to infer discriminatory purpose. No, a prosecutor’s closing argument is not improper, such that it is a fundamental error, when it makes implications that the defendant has failed to take responsibility for his actions and/or when the prosecutor makes an “overly emotional” appeal. Prosecutors are allowed to make reasonable inferences from the facts presented. Although the State is not allowed to tell a capital jury that it cannot consider mitigating evidence, the State may argue that mitigating evidence should not be given much weight. No, a trial court does not abuse its discretion by allowing the state to present evidence of the circumstances of a crime, at the beginning of the penalty phase. The state may offer evidence in the penalty phase about the circumstances of the murder regardless of whether the defendant presents any mitigation. No, it is not fundamental error when the final jury instructions state that a defendant has admitted to statutory aggravating factors, but fails to identify the particular aggravating factors to the jury. A Court is not required to give a spate instruction it its substance has already been covered by other instructions. In this case the jury instructions, taken as a whole, were accurate and not misleading. No, a sentence does not need to be automatically remanded for clarification if the trial judge orally pronounces that the sentences will run consecutively, but enters a minute entry ordering two of them to run concurrently. When a discrepancy between the trial court’s oral pronouncement of a sentence and the written minute entry can be clearly resolved by looking at the record, the oral pronouncement in open court controls the minute entry.

 STATE OF ARIZONA v SHAWN RYAN GRELL

Case Type: Criminal
Case Number: CR-09-0199
Date opinion issued: 01/09/2013

Issue(s):

• Was the defendant, Grell, able to show that he is mentally retarded by a preponderance of the evidence?
• Does Atkins v. Virginia, 536 U.S. 304 (2002) require a sentence of death be reduced to life in prison if a defendant is found to be mentally retarded?

Holding:

The Supreme Court of Arizona vacated the trial court’s death sentence and imposed a sentence of natural life in prison.

• Yes, Grell was able to prove his mental retardation by a preponderance of the evidence. Three factors must be evaluated to show mental retardation under Arizona law: (1) Significantly sub-average general intellectual functioning, existing concurrently with, (2) significant impairment in adaptive behavior, (3) where the onset of the forgoing conditions occurred before the defendant reached the age of 18.

• Sub-average intellectual functioning

Significantly sub average general intellectual functioning is the touchstone for proving mental retardation, and means “a full scale intelligence quotient of 70 or lower. A.R.S. § 13-753 (K) (5).  Grell underwent multiple IQ tests, these tests him somewhere between 72 and 65.

•  Significantly Impaired Adaptive Behavior

“’Adaptive behavior’ means the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant’s age and cultural group.” A.R.S. § 13-753 (K) (1).  The court independently reviewed the evidence presented to the trial court in 2009 to see if Grell proved mental retardation by a preponderance of the evidence, in this independent review they did not defer to the jury’s findings or decisions, bur rather gave all of the evidence the dame weight that it received at trial. The court found that the trial court had undervalued the evidence presented by the social workers and teachers who had interacted with Grell during his child hood, in part because they classified him as having a “mental disability rather than “mental retardation”. The court found that Grell had probed by a preponderance of the evidence that he has a disorder involving significantly sub average general intellectual functioning coupled with significant deficits in adaptive behavior that manifested before the age of 18, and thus that he has mental retardation.

•  The court’s decision to impose a sentence of life in prison rather than death was controlled by Atkins. The court fount that although Grell knew the difference between right and wrong, he was unable because of his mental age, to understand and process information, to communicate effectively, to reason abstractly, and to control his actions.

California: None

Idaho: None

Montana: None

Nevada: None

Oregon: PCR relief for Martin Johnson. We will have a summary in the next edition.

Washington: None

 

9^th Circuit Court

Antwion Thompson v. D.L. Runnels

Case Type: Habeas
Location: Northern District of California
Case Number: 08-16186
Date opinion issued: 01/24/2013

Issue(s):

• Did the California Court of Appeal fail to apply clearly established Federal law when it denied Thompson’s motion to suppress his multiple confessions to the murder of his girlfriend?
• Should the state court’s opinion be measured against Oregon v. Elstad, 470 U.S. 298 (1985), which was decided before the CA Court of Appeal issued its opinion, or Missouri v. Seibert, 542 U.S. 600 2004) which was decided after that date?

Holding:

The Court of Appeals of the Ninth Circuit affirmed the decision of the district court and held that Elstad is the Relevant “clearly established Federal law” and so Thompson’s rights were not violated. Thompson’s petition is therefore denied.

Thompson appealed the district court’s decision to deny his motion to suppress his multiple confessions of murder on the grounds that the court should have followed the rule set by Seibert, which expanded upon Elstad. The Supreme Court’s opinion in Seiber [although there was no actual majority, 5 justices agreed with this portion of the opinion] that when officer’s use a deliberate two step interrogation process, withholding Miranda warnings until after a suspect has confessed, administering the warning and then asking for a repeated confession.  Seibert did not overrule Elstad it merely expanded upon it. Under 28 U.S.C. § 2254(d)(1) as interpreted by the Supreme Court, court’s must apply “clearly established Federal law” in their decisions. The court relied on Greene v. Fisher, 132 S. Ct. 38 (2011), where the Supreme Court held that clearly established federal law does not include the decisions of the Supreme Court that are announced after the last adjudication on the merits in state court but before the defendant’s petition becomes final. The Sieber decision was not “clearly established Federal law” at the time of Thompson’s conviction and so his rights were not violated.

 

ROGER SCOTT V. CHARLES RYAN

Case Type: Prisoner Death Penalty
Location: Phoenix District Court
Case Number: 11-99002
Date opinion issued: 01/23/2013

Issue: N/A

Holding: Court amended their prior opinion by rephrasing footnote one, at Slip of Page 9536Appellant’s petition for panel rehearing and petition for rehearing en banc are denied. [Fed. R. App. P. 25, 40.] No future petitions for rehearing or petitions for rehearing en banc will be entertained.

 

RICHARD HURLES V. CHARLES L. RYAN

Case Type: Prisoner Death Penalty
Location: Phoenix District Court
Case Number: 08-99032
Date opinion issued: 01/18/2013

Issue: None

Holding: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35–3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

 

JONATHAN GENTRY V. STEPHEN SINCLAIR

Case Type: Prisoner Death Penalty
Location: Seattle District Court
Case Number: 09-99021
Date opinion issued: 01/15/2013

Issue:

• Under The Antiterrorism and Effective Death Penalty Act (AEDPA) has Gentry exhausted his claim for ineffective assistance of council and has this claim procedurally defaulted?
• Has Gentry exhausted his claims that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264 (1959) relating the exculpatory evidence withheld by the state to impeach a witness who purportedly received benefits from the state for his testimony?
• Did the admission of victim impact evidence at the penalty phase violate the Ex Post Facto Clause or Due process Clause?

Holding:

The U.S. State Court of Appeals for the Ninth Circuit affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction for murder and a sentence of death.

• Gentry has exhausted his claim for ineffective assistance of council. This exhaustion was not based on the trial council’s failure to present mitigating evidence at the penalty phase, but rather because the Washington Supreme Court was given ample information and opportunity to remedy any potential ineffective assistance by trial council at the penalty phase.  The claim has not procedurally defaulted because the Washington Supreme Court adjudicated it on the merits; however, the state court’s denial of the claim was not an unreasonable application of AEDPA. Under AEDPA the Court of Appeals will differ to the state court’s merits-based disposition of the defendant’s claims unless the state’s adjudication:
  • Resulted in a decision that was contrary to, or involved an unreasonable application or, clearly established Federal law, as determined by the Supreme Court of the U.S.; OR
  • 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 Washington Supreme Court’s conclusion that Gentry failed to meet either prong of Strickland was a reasonable application of Federal law or based on an unreasonable determination of the facts.
• The state court erroneously held that the prosecution did not know that the witness had received a benefit, but there was no reasonable likelihood that the false testimony could have affected the judgment. The credibility of the witness was called into question continuously through out the trial, and there was plenty of other evidence supporting conviction. The information that the Prosecution withheld, that the witness was a paid informant and that a lead detective had a history of dishonesty, did not violate Brady because they were not material facts.
• Gentry’s rights were not violated by the admission of victim impact evidence at the penalty phase. Payne v. Tennessee, 501 U.S. 808 (1991), which allows the admission of victim impact evidence at the penalty phase, was decided after the time of the offense. Under Calder v. Bull, 3 U.S. 286, 390 (1798) it is a violation of the Ex Post Facto Clause to apply a law enacted after the committed offense that alters the legal rules of evidence, in order to convict the offender. However, this does not apply id the law does nothing more than admit evidence of a particular kind in a criminal case. An application of Payne did not increase or lessen the degree or amount of evidence required to impose a sentence of death. Gentry also received notice that the state would present victim impact testimony and he had the opportunity to cross exam and test the witnesses. His Due Process and Ex Post Facto rights were not violated.

Latisha Babb v. Jennifer Lozowsky

Case Type: Habeas
Location: District of Nevada
Case Number: 11-16784
Date opinion issued: 01/11/2013

Issue(s):

• Is the Kazalyn instruction unconstitutional because it omits an element of premeditated murder?
• Should Byford be applied to convictions that became final before the change in the law announced in Byford occurred?

Holding:

• The Court of Appeals for the Ninth Circuit reversed the district court’s grant of a habeas corpus petition challenging a murder and robbery conviction, due to an unconstitutional jury instruction.

• The Kazalyn instruction in not unconstitutional and did not violate Babb’s Due Process rights. At the time of Babb’s conviction, jury instructions in Nevada included the Kazalyn instruction [from Kazalyn v. State, 825 P.2d 578 (Nev. 1992)]. This instruction was criticized by Byford v. Statefor improperly merging the concepts of premeditation and deliberation and, therefore, reducing the states burden of proof in violation of due process. In Byford, the Nevada Supreme Court made it clear that all three elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first-degree murder. Babbs claimed that because Byford clarified the murder statute it should be retroactively applied to her case. However, the Nevada Supreme Court held in Nika v. State, 198 P.3d 839, 849 (Nev. 2008), that the Byford decision was not a clarification of the murder statute, it did not “right prior decisions’ incorrect interpretation of the statute, but rather, it announced a new interpretation of the murder statute, which changed the law. The Court of Appeals for the Ninth Circuit held that premeditation and deliberation were not separate elements under Nevada law until Byford, and whether a term in a statute constitutes a distinct element of the crime with an independent definition is a question of state law.  After Nika, Babb’s claim that the Kazalyn instruction violated her due process rights because it did not provide a distinct definition for deliberation must fail.
• Byford should be applied to Babb’s case because her conviction was not final at the time that it was decided. The court cited Fiore and Bunkley in holding that Byford should be applied because it narrowed the scope of conduct that could qualify as first degree murder. In Fiore the Supreme Court held that where there has been a clarification of the law it will violate a defendant’s Due Process rights to refuse to allow a revaluation of their conviction based on the correct, clarified, interpretation of the law. The court also relied on Bunkley in deciding Babb’s case because they upheld the Nika decision that Byford was new law rather than a clarification of the law. In Bunkley the Supreme Court held that a failure to apply potentially exonerating change in the law to a conviction that is not final at the time of the change would have the same effect as failing t apply a clarification. However, the court held that the failure to apply Byford was harmless error in Babb’s case in light of the overwhelming evidence supporting the felony murder theory.

 

ALBERT CUNNINGHAM V. ROBERT WONG

Case Type: Prisoner Death Penalty
Location: Los Angeles District Court
Case Number: 09-99008
Date opinion issued: 01/08/2013

Issue(s):

• Were the prosecutor’s comments on the changed appearance of the defendant, Cunningham, misconduct?
• Did the prosecution did violate Brady v. Maryland  by suppressing the medical records and the autopsy report of the victim?
• Did the defendant meet the burden of showing that his attorney’s provided ineffective assistance of council?
• Was there cumulative error in this case such that the court is required to reverse?

Holding:

The U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the district court in denying Cunningham’s petition for a writ of habeas corpus.

• The prosecutor’s comments on the changed appearance of the defendant were not misconduct. This claim was procedurally barred because an error of this type could have been cured through an admonition at trial, which was not made.
• No, the prosecution did not violate Brady v. Maryland  by suppressing the medical records and the autopsy report of the victim. The medical records were not improperly suppressed because the defendant’s attorneys possessed the “salient facts” that would have allowed them to access the medical records. These records were easily obtainable. Likewise, the autopsy report was not improperly because the defendant’s attorney knew or should have known of their existence, the reports were available upon request, and were admitted as an exhibit at trial with no objection from the defense.
• The defendant failed meet the burden set by Strickland v. Washington, 466 U.S. 668 (1984) to show ineffective assistance of council. To meet this burden he would have needed to demonstrate that his council’s performance fell below an objective standard of reasonableness and that there was a reasonable probability that, but for the counsel’s unprofessional errors the results of the proceeding would have been different. The defendant’s burden was doubly heavy in this case because the court also applied the Antiterrorism and Effective Death Penalty Act [AEDPA] standard of review.  Under AEDPA the Court of Appeals will differ to the state court’s merits-based disposition of the defendant’s claims unless the state’s adjudication:
  • Resulted in a decision that was contrary to, or involved an unreasonable application or, clearly established Federal law, as determined by the Supreme Court of the U.S.; OR
  • 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 defendant failed to meet either of these standards.

• There was not cumulative error by the prosecutor or defense council in this case such that the court is required to reverse. The court follows the standard set by Killian v. Poole, 282 F.3d 1204, which requires a petitioner to demonstrate that even if no single error were judicial then there are several substantial errors whose cumulative effect may nevertheless be so prejudicial as to require reversal. The defendant did not meet that standard in this case, the court failed to see cumulative error requiring reversal even when reviewing all of his claims as a whole.

 

Jennifer Henderson v. Deborah Johnson

Case Type: Habeas
Location: Central District of California
Case Number: 11-55249
Date opinion issued: 01/03/2013

Issue:

• Must a petitioner who files a mixed habeas corpus petition be allowed to amend that petition before it is dismissed for containing both exhausted and unexhausted claims? If the petitioner requests it is the court required to consider the petitioners eligibility for a stay under either Rhines v. Webster, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063?

Holding: The district court erred by failing to allow Henderson leave to amend her petition before dismissal, and by refusing to address her request for relief. Reversed and Remanded.

• Yes, if a petitioner files a habeas corpus petition and that petition is found to contain both exhausted and unexhausted claims, the district court must, at a minimum, allow them to amend the petition to delete any unexhausted claims. In this case the U.S. District Court for the Central District of California improperly dismissed Henderson’s habeas petition because it contained both exhausted claims and then unexhausted claims that were being raised in here concurrent state petition. The district court held that Sherwood v. Tomkins, 716 F.2d 632 (9^th Cir. 1983) required the petition’s dismissal because a federal habeas petitioner needs to wait for the outcome of any pending state-court challenges before proceeding in federal court. The Court of Appeals for the Ninth Circuit held that Sherwood does not undermine the important precedent requiring that district courts grant leave to amend and, if requested, to consider a petitioners eligibility for a stay under Rhines.  At the time that this case was decided the CA courts had rejected all of Henderson’s claims, thus all were exhausted and could be contained in a habeas petition.

Upcoming Cases

U.S. Court of Appeals for the Ninth Circuit, Seattle, WA
Date	Case Number		Case		Nature	Origin
02/04/13	11-35695		Montoya v. Jones		Habeas	Idaho
02/06/13	10-36071		United States v. Scott		Habeas	Montana
02/06/13	10-35609		Paranteau v. Kirkegard		Habeas	Montana
02/07/13	11-35209		United States v. Caccavallo		Habeas	Montana
02/07/13	11-36069		Holmes v. Satterberg		Habeas	W. Wash.
U.S. Court of Appeals for the Ninth Circuit, Seattle, WA
Date		Case Number		Case	Nature		Origin
02/04/13		10-55628		Harris v. Kernan	Habeas		C. Cal.
02/06/13		11-56846		Moore v. Biter	Habeas		C. Cal.
02/08/13		10-55934		Robinson v. United States	Habeas		C. Cal.

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