Carriger v. Stewart
| Decision Date | 17 December 1997 |
| Docket Number | No. 95-99025,95-99025 |
| Citation | 132 F.3d 463 |
| Parties | 97 Cal. Daily Op. Serv. 9421, 97 Daily Journal D.A.R. 15,151 Paris Hoyt CARRIGER, Petitioner-Appellant, v. Terry L. STEWART, Director of the Arizona Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Denise I. Young, Arizona Capital Representative Project, Tempe, Arizona, for petitioner-appellant.
Joseph T. Maziarz, Assistant Attorney General, Phoenix, Arizona, for respondent-appellee.
Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-95-01617-PGR.
Before: HUG, CHIEF JUDGE, BROWNING, SCHROEDER, FARRIS, PREGERSON, REINHARDT, KOZINSKI, FERNANDEZ, T. G. NELSON, KLEINFELD, and THOMAS, Circuit Judges.
INTRODUCTION
Paris Hoyt Carriger was convicted and sentenced to death for the brutal murder of Robert Shaw in 1978. Shaw was beaten on the head with a skillet and strangled with his own necktie during a robbery of his Phoenix jewelry store. The chief prosecution witness was Robert Dunbar; Carriger's defense was that Dunbar committed the murder.
After the trial and unsuccessful appeal, Carriger learned of documents in the state's records, never disclosed before trial, indicating that Dunbar was a known habitual liar accustomed to blaming others for his own crimes. In our first en banc opinion in the case, we held that Carriger's challenge to his counsel's failure to investigate Dunbar's background came too late. Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.1992) (en banc).
After Carriger's first federal habeas corpus petition had been filed, Dunbar actually confessed in open court that he was the murderer and that Carriger was innocent. Despite the passage of a decade since Dunbar's sworn confession, and despite numerous attempts by Carriger to raise the issue, we have not yet considered on the merits the effect of Dunbar's sworn confession on Carriger's continued incarceration and sentence of death.
This habeas proceeding concerns whether Carriger has adequately shown either actual innocence that would foreclose imposition of the death penalty, or sufficient doubt about his guilt to overcome procedural bars and permit consideration of the merits of his constitutional claims of trial error. The district court and the panel said no. We took the case en banc because of the exceptional importance of the issues concerning whether the state may execute an individual whose guilt is shrouded by doubt and who has raised serious claims of constitutional error at trial. We now hold that we must consider Carriger's claims, and that those claims warrant a new trial.
Carriger was tried in July 1978. The physical evidence at trial was not strong. The prosecution's case relied principally on the testimony of Robert Dunbar, who had contacted police the morning following the murder with an offer of information in exchange for immunity. With immunity, Dunbar testified that Carriger had confessed the crime to him immediately after it happened, had described the crime in considerable detail, and had sought Dunbar's help to dispose of the loot and evidence. Nearly all of the physical evidence used at trial was evidence to which Dunbar had led police the morning following the crime.
Carriger was convicted of robbery and murder. His counsel later testified in postconviction proceedings that during his investigation and trial preparation he did not take into account that his client faced the death penalty. At the sentencing phase, counsel presented no mitigation case. The trial judge sentenced Carriger to 99-100 years for the robbery and death for the murder.
Following sentencing, Carriger dismissed his lawyer and was appointed new counsel. On appeal, Carriger challenged a number of evidentiary rulings, trial counsel's effectiveness in cross-examining Dunbar, and the constitutionality of Arizona's death penalty statute. The Arizona Supreme Court affirmed. See State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979) (Carriger I ).
In 1982, represented by new counsel, Carriger filed his first petition for state postconviction relief. The judge who had presided at Carriger's trial denied the petition without a hearing. On appeal, the Arizona Supreme Court found that Carriger's counsel at sentencing had been ineffective, and ordered a new sentencing hearing. See State v. Carriger, 132 Ariz. 301, 645 P.2d 816, 820 (1982) (Carriger II ). The court also ordered that Carriger be given a hearing on his other postconviction claims. See id.
Carriger's principal postconviction claim was that his trial counsel had been ineffective for failing to investigate Dunbar adequately and for failing to obtain Dunbar's Department of Corrections file, despite a request from Carriger that he do so. After remand, Carriger for the first time obtained Dunbar's corrections file through court-ordered discovery. The file contained evidence that Dunbar had long been known to state authorities as an habitual liar with a sociopathic personality, who had a lengthy history of burglaries, violence, and attempts at pinning his crimes on others. Counsel called a number of witnesses who testified to Dunbar's reputation as a liar. The trial court resentenced Carriger to death, and denied postconviction relief. R.T. 10/27/82 at 58, Supp. R.T. 10/27/82 at 14.
The Arizona Supreme Court affirmed, ruling that Carriger's claim of ineffective assistance was known to Carriger at the time of his appeal, should have been raised then, and had been waived. See State v. Carriger, 143 Ariz. 142, 692 P.2d 991, 995, 996 (1984) (Carriger III ). The court also rejected on the merits claims that Carriger was entitled to a lesser-included instruction under the rule of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), see Carriger III, 692 P.2d at 996-97, and that Arizona's death penalty was unconstitutional. See id. at 1008-11.
In 1985, Carriger filed his first federal petition for habeas corpus, presenting the claims exhausted in Carriger III. The district court granted Arizona's motion for summary judgment. Carriger filed a notice of appeal but soon after requested that this court stay consideration of his appeal while he pursued a new state postconviction petition, based on newly discovered exculpatory evidence. See Carriger v. Lewis, 971 F.2d 329, 331 (9th Cir.1992) (en banc) (Carriger IV ) (superseding Carriger v. Lewis, 948 F.2d 588 (9th Cir.1991) (panel opinion)). We granted Carriger's motion and stayed his appeal.
Carriger's second state postconviction petition was based on new information from Dunbar's family and friends indicating Dunbar had lied at trial regarding his whereabouts during the crime, had bragged of framing Carriger, and had instructed his family to lie to investigators and at trial.
By 1987, the judge who had presided at Carriger's trial had retired. At July and August hearings before a new judge, Joyce Stevens (Dunbar's wife at the time of the murder) and her children testified that Dunbar's alibi and Stevens' corroboration of it at trial were false. Stevens also testified that Dunbar left the house that afternoon and upon returning confessed the crime to her. Several witnesses, including a close friend of Dunbar's, testified that Dunbar had bragged of framing Carriger for the crime. Stevens and her children testified that Dunbar was an abusive person who had beaten them, had previously instructed them to lie, and had threatened their lives if they did not comply. Dunbar then took the stand and denied the allegations of abuse, and stated his trial testimony had been truthful. The evidentiary hearing was continued to permit counsel to investigate further evidence bearing on the credibility of the conflicting testimony given in the July and August hearings.
Not long after his testimony, Dunbar (through his own counsel) contacted Carriger's counsel. Dunbar, imprisoned on an unrelated conviction, was seriously ill. Dunbar said he believed he was dying, wanted to make his peace with God, and then confessed that he had robbed and murdered Robert Shaw, and had framed Carriger.
In October 1987, at the reconvened evidentiary hearing, Dunbar confessed under oath. He described the crime in great detail, and diagrammed the jewelry store, accurately depicting where Shaw's body was found. Dunbar testified that he and Stevens had committed the crime together, and that Stevens had struck the first blow to Mr. Shaw.
Three weeks after his sworn in-court confession, Dunbar wrote to the judge and recanted. Recalled to the stand in December 1987, Dunbar testified that his 1978 trial testimony had been truthful and his recent sworn confession a lie.
In February 1988, the trial court denied postconviction relief. The judge, who had not presided at trial and therefore could make no demeanor comparisons, rejected both Stevens' testimony and Dunbar's confession as incredible, principally because he thought them inconsistent with the trial evidence. The trial court also noted that Stevens recanted her trial testimony after being given immunity, and that Dunbar's confession was short-lived and motivated by claimed desires for money and revenge. State v. Carriger, No. CR 101609 (Ariz.Sup.Ct. Feb. 22, 1988). The Arizona Supreme Court affirmed without comment.
Carriger then returned to federal court, and sought to raise his claims based on the 1987 state court testimony both in the district court and directly in this court. In a 1992 en banc opinion, we held that Carriger had not followed procedures adequate to give either this court or the district court jurisdiction to consider his new claims. See ...
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