114 F.3d 1484 (9th Cir. 1997), 95-99003, Jeffries v. Wood

Docket Nº:95-99003.
Citation:114 F.3d 1484
Party Name:97 Daily Journal D.A.R. 6151 Patrick James JEFFRIES, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant.
Case Date:May 12, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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114 F.3d 1484 (9th Cir. 1997)

97 Daily Journal D.A.R. 6151

Patrick James JEFFRIES, Petitioner-Appellee,

v.

Tana WOOD, Superintendent, Respondent-Appellant.

No. 95-99003.

United States Court of Appeals, Ninth Circuit.

May 12, 1997

Argued and Submitted June 20, 1996.

Reargued and Resubmitted Nov. 20, 1996.

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Paul D. Weisser, Attorney General's Office, Corrections Division, Olympia, Washington, for respondent-appellant.

Stephanie Ross, Point Roberts, Washington; Robert S. Mahler, MacDonald, Hoague & Bayless, Seattle, Washington; Thomas W. Hillier, II, Federal Public Defender, Seattle, Washington, for petitioner-appellee.

Appeal from the United States District Court for the Western District of Washington; Carolyn R. Dimmick, District Judge, Presiding. D.C. No. CV-90-00925-CRD.

Before: HUG, Chief Judge, GOODWIN, SCHROEDER, FLETCHER, REINHARDT, BRUNETTI, KOZINSKI, T. G. NELSON, HAWKINS, TASHIMA and THOMAS, Circuit Judges.

Opinion by Judge THOMAS; Dissent by Judge KOZINSKI.

THOMAS, Circuit Judge:

This case requires us to consider the effect of two precepts designed to promote consistency and stability in development of the law: the doctrine of law of the case and the presumption against retroactive application of new statutes.

After carefully examining the application of these tenets to this case, we hold that a three-judge panel improperly applied the law of the case when it reversed its prior decision and reimposed a death sentence. However, we hold that law of the case requires only vacation of the death sentence and the convictions for aggravated first degree murder, not the underlying first degree murder convictions. We also hold that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, does not have retroactive effect so as to alter the judgment in this case.

I. BACKGROUND

Patrick James Jeffries allegedly murdered and robbed Phillip and Inez Skiff in Port Angeles, Washington in 1983. Jeffries met the Skiffs while Jeffries was serving a twelve-year prison sentence in Canada for robbery. After his release from prison in January 1983, Jeffries went to live with the Skiffs at their home near Port Angeles, in violation of his parole terms.

On April 2, 1983, the Skiffs' bodies were found buried in shallow graves on their property. Each had been shot repeatedly with .22 caliber bullets, Philip seven times and Inez ten times.

Using the Skiffs' pickup truck, Jeffries left the Skiff property on March 22 or 23, taking with him the Skiffs' portable television, chain saw, placer gold and coins, and other personal property. Jeffries was arrested in Wenatchee on April 7, 1983.

A jury found Jeffries guilty of two counts of aggravated first degree murder under Wash.Rev.Code § 10.95.020 and issued a special verdict finding of two counts of aggravating circumstances permitting imposition of a death penalty, namely: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identity

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of the person committing the crime; and (2) that there was more than one victim and the murders were part of a common scheme or plan or the result of a single act by the defendant. At the penalty phase, the jury found insufficient mitigating circumstances to merit leniency. On November 7, 1983, Jeffries was sentenced to death.

By a 5-4 vote, the Washington Supreme Court affirmed Jeffries' conviction and sentence on direct appeal. State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722 (en banc), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986). Jeffries filed three personal restraint petitions in state court, all of which the Washington Supreme Court denied. State v. Jeffries, 722 P.2d 99 (Wash.1986); Petition of Jeffries, 110 Wash.2d 326, 752 P.2d 1338 (en banc), cert. denied, 488 U.S. 948, 109 S.Ct. 379, 102 L.Ed.2d 368 (1988); Matter of Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) (en banc).

On July 2, 1990, Jeffries filed a petition for writ of habeas corpus with the U.S. District Court alleging, inter alia, that he was denied his right to a fair trial because one juror had informed other jurors that Jeffries was a convicted armed robber. The district court authorized discovery on several of Jeffries' claims, including his claim of jury misconduct, and held an evidentiary hearing. On September 5, 1991, the district court rejected each of Jeffries' claims and dismissed the habeas petition. Jeffries v. Blodgett, 771 F.Supp. 1520 (W.D.Wash.1991). The district court made no findings as to whether the jury misconduct had occurred because it determined that there was no reasonable possibility that the alleged misconduct, even if true, had affected the jury verdict. Id. at 1539.

On appeal, the three-judge panel initially upheld the district court's findings. Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir.1992) ("Jeffries I "). The panel then granted Jeffries' motion for rehearing. On rehearing, the panel reversed its prior holding on the juror misconduct issue, finding that it conflicted with Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988). Jeffries v. Blodgett, 988 F.2d 923 (9th Cir.1993) ("Jeffries II "). Defendant Blodgett requested rehearing, with suggestion for rehearing en banc. In Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994) ("Jeffries III "), the panel denied the requested rehearing and amended Jeffries II. The court rejected the suggestion for rehearing en banc. Jeffries III held that the extrinsic information at issue "would have had a 'substantial and injurious effect or influence' on the verdict." Id. at 1191. The case was remanded to the district court "for further proceedings" on the question of juror misconduct in light of Dickson. Id. at 1198.

On remand, the district court found that the jury misconduct had occurred. The district court renewed its opinion that no prejudice resulted from the juror misconduct, but concluded that Jeffries III required a writ of habeas corpus to issue upon a finding of juror misconduct.

Defendant Wood, who replaced Blodgett as Washington's chief prison official, appealed. Under the death penalty procedures adopted for the Ninth Circuit, the same three-judge panel which decided Jeffries I, II, and III was assigned the appeal. See Rule 22-3(a)(3) of the Local Rules of the United States Court of Appeals for the Ninth Circuit. On appeal, the panel reversed its decision in Jeffries III. Jeffries v. Wood, 75 F.3d 491 (9th Cir.1996) ("Jeffries IV "). The panel decided it had read Dickson "too broadly" and that there was a "principled ground" for distinguishing cases in which improper communication came to the jury through an official external source from cases involving intra-juror communication. Id. at 494. The panel further concluded that law of the case did not prevent reversal of its prior decision because Jeffries III was " 'clearly erroneous and would work a manifest injustice.' " Id. (quoting Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 407, 133 L.Ed.2d 325 (1995)). Jeffries petitioned for rehearing, with suggestion for rehearing en banc. The suggestion for rehearing en banc was granted.

II. LAW OF THE CASE

A. General Considerations

Law of the case is a jurisprudential doctrine under which an appellate court does

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not reconsider matters resolved on a prior appeal. "The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir.1996) (quotations omitted); see Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.) ("[U]nder the 'law of the case' doctrine one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case."), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979).

Law of the case rules are founded upon "the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal." Kimball, 590 F.2d at 771 (quotations omitted). This doctrine also serves to maintain consistency. 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (1981).

Certainly, law of the case is a discretionary doctrine. "The doctrine 'merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.' " Leslie Salt, 55 F.3d at 1393 (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); see also Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) ("The doctrine is discretionary, not mandatory."). That discretion, however, is not unfettered. "While courts have some discretion not to apply the doctrine of law of the case, that discretion is limited." Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.) (internal citation omitted), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993). The prior decision should be followed unless: " '(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, 1 or (3) substantially different evidence was adduced at a subsequent trial.' " In re Rainbow, 77 F.3d at 281 (quoting Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir.)...

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