18 F.3d 662 (9th Cir. 1994), 89-35210, Campbell v. Wood

Docket Nº:89-35210.
Citation:18 F.3d 662
Party Name:Charles Rodman CAMPBELL, Petitioner-Appellant, v. Tana WOOD, [*] Superintendent, Washington State Penitentiary, Walla Walla, Washington; Christine O. Gregoire, [**] Attorney General, State of Washington, Respondents-Appellees.
Case Date:February 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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18 F.3d 662 (9th Cir. 1994)

Charles Rodman CAMPBELL, Petitioner-Appellant,

v.

Tana WOOD, [*] Superintendent, Washington State

Penitentiary, Walla Walla, Washington; Christine

O. Gregoire, [**] Attorney

General, State of Washington,

Respondents-Appellees.

No. 89-35210.

United States Court of Appeals, Ninth Circuit

February 8, 1994

Submission Withdrawn Jan. 29, 1993. Argued and Submitted Jan. 20, 1993.

Submission Withdrawn Jan. 29, 1993.

Submitted Nov. 5, 1993.

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Charles Rodman Campbell, pro per, Walla Walla, Washington.

James E. Lobsenz, Carney, Bradley, Smith & Spellman, Seattle, Washington, for the petitioner-appellant.

Paul D. Weisser, Assistant Attorney General, John M. Jones, Assistant Attorney General, Olympia, Washington, for the respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before: WALLACE, Chief Judge, BROWNING, TANG, POOLE, D.W. NELSON, REINHARDT, BEEZER, WIGGINS, THOMPSON, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

BEEZER, Circuit Judge:

Charles Rodman Campbell was convicted in 1982 of three counts of aggravated first-degree murder and sentenced to death. We consider en banc the denial of Campbell's second federal habeas corpus petition. We affirm the district court and provide for the dissolution of the stay of execution pending appeal.

I

We begin with an overview of the procedural and factual background of Campbell's conviction and his current and prior petitions for post-conviction relief.

A

Campbell was convicted of three counts of aggravated murder and sentenced to death. The Washington Supreme Court affirmed the conviction and sentence. State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984). The Snohomish County Superior Court issued a death warrant scheduling Campbell's execution for March 29, 1985. The Washington Supreme Court stayed the execution to allow Campbell to petition the United States Supreme Court for a writ of certiorari. The Supreme Court denied certiorari on April 29, 1985. Campbell v. Washington, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).

A second death warrant issued on May 17, 1985, setting Campbell's execution for July 25, 1985. Campbell moved the Washington Supreme Court for another stay. The court treated the motion as a personal restraint petition, and on July 18, 1985, denied the motion for a stay and dismissed the petition on the merits. On July 22, 1985, Campbell filed a habeas corpus petition in the United States District Court for the Western District of Washington. The district court granted a stay of the execution. Campbell's petition made 61 claims, 40 of which the district court determined had not been exhausted in state court. Campbell amended his petition to limit his claims to the 21 exhausted claims. The district court held an evidentiary hearing, and on February 12, 1986, denied the habeas petition. We affirmed on October 6, 1987. Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987) (Campbell I ). We denied the petition for rehearing and the suggestion for rehearing en banc. The Supreme Court denied certiorari. Campbell v. Kincheloe, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). We dissolved the stay of execution on January 25, 1989.

A third death warrant issued on February 15, 1989, scheduling Campbell's execution for

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March 30, 1989. Campbell appealed from the order scheduling his execution. The Washington Supreme Court affirmed on March 23, 1989. State v. Campbell, 112 Wash.2d 186, 770 P.2d 620 (1989). Campbell filed a second petition for a writ of habeas corpus in the district court. The district court held an evidentiary hearing and then denied the petition and request for a stay on March 28, 1989. The district court issued a certificate of probable cause. Campbell appealed on March 29, 1989, and on March 30, 1989, we granted a stay of the execution pending appeal.

While this appeal was pending, Campbell filed another personal restraint petition in the Washington Supreme Court. The Washington Supreme Court denied the petition on March 21, 1991, and denied rehearing on May 15, 1991. On August 7, 1991, we granted Campbell leave to file a third habeas petition, and indicated that an appeal, if any, from the district court's decision on the third petition would be consolidated with the pending appeal on the second petition. Campbell v. Blodgett, 940 F.2d 549 (9th Cir.1991); see also Campbell v. Blodgett, 927 F.2d 444 (9th Cir.1991). Campbell filed his third habeas corpus petition in the district court on September 18, 1991. The district court dismissed the petition as successive and an abuse of the writ on March 9, 1992.

While Campbell's third habeas petition was pending before the district court, the Washington Attorney General filed a petition for mandamus in the United States Supreme Court on October 25, 1991. The Supreme Court denied the writ, but stated that it found no plausible reason for the delay in resolving Campbell's second appeal. In re Blodgett, --- U.S. ----, ----, ----, 112 S.Ct. 674, 675, 677, 116 L.Ed.2d 669 (1992). The appeals therefore were not consolidated. We affirmed the district court's denial of relief on Campbell's third petition on December 24, 1992. Campbell v. Blodgett, 982 F.2d 1321, superceded on denial of reh'g, 997 F.2d 512 (9th Cir.1993) (Campbell III ).

The panel filed its opinion on Campbell's second petition on April 1, 1992. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.1992) (Campbell II ). We granted rehearing en banc on October 8, 1992. Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992).

On May 1, 1993, we ordered a limited 35-day remand to the district court for an evidentiary hearing on the issue of whether execution by hanging violates the Eighth Amendment prohibition of cruel and unusual punishment. See Campbell v. Blodgett, 992 F.2d 984 (9th Cir.1993) (denying reconsideration of remand order); see also Blodgett v. Campbell, --- U.S. ----, 113 S.Ct. 1965, 124 L.Ed.2d 66 (1993) (O'Connor, J.) (denying application to vacate remand order). The district court heard three days of testimony and entered findings and conclusions on June 1, 1993. Campbell attempted to appeal from the findings and conclusions by filing a notice of appeal in the district court on June 7, 1993. In an order dated July 23, 1993, we stated that an appeal from the limited remand was error. Campbell v. Blodgett, 998 F.2d 763 (9th Cir.1993). Campbell moved to allow supplemental briefing. We granted the motion on August 27, 1993. Briefing was completed on October 22, 1993, and we ordered the case resubmitted for decision on November 5, 1993. We now affirm.

B

In 1974, Charles Campbell assaulted and sodomized Renae Wicklund in her residence in Clearview, Washington. Campbell held a knife to the throat of Wicklund's one-year-old daughter Shannah, threatening to harm her if Renae did not submit. After the attack, Wicklund ran to the house of her neighbor, Barbara Hendrickson, for help. Campbell was tried and convicted on the assault and sodomy charges in 1976. Both Renae Wicklund and Barbara Hendrickson testified at the trial. Campbell was sentenced to a prison term. In March 1982, Campbell was transferred to a work release facility in Everett, Washington.

On April 14, 1982, Renae Wicklund, Shannah Wicklund (then eight years old), and Barbara Hendrickson were found brutally slain in the Wicklund residence. Wicklund had been sick and remained at home that day. Hendrickson had gone to Wicklund's residence to assist her.

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The evidence at trial showed that Wicklund had been the first victim. She was found naked on her bedroom floor. She had been beaten with a blunt instrument on her head, back, and upper chest. Her jaw and nose were broken, and she had been strangled. She had a seven-inch cut across her neck, from which she had bled to death. After her death, she had been vaginally assaulted with a blunt instrument which left a one-inch cut in her vaginal wall.

Wicklund's daughter had also been strangled, and she had a seven-and-one-half-inch cut across her upper neck. She had lost so much blood that a sample was difficult to obtain.

Hendrickson's throat also had been cut, leaving a seven-inch wound. She died of a massive hemorrhage. See generally State v. Campbell, 691 P.2d at 933.

Campbell was charged and tried on three counts of aggravated first degree murder. In affirming the convictions, the Washington Supreme Court noted that the State's case was "overwhelmingly strong." State v. Campbell, 691 P.2d at 933. Several witnesses testified that they saw a man near the Wicklund residence on the afternoon of the murders and identified Campbell at trial as the man they had seen. Two other witnesses described a car matching the description of Campbell's car and testified that they observed the car parked in an inlet in a wooded area near the Wicklund residence on April 14, 1982. Judith Dirks testified that Campbell had visited her on the morning of April 14, that he had been drinking, and that he drank a six-pack of beer at her residence. Dirks later noticed her butcher knife was missing. Another of Campbell's acquaintances, Debbie Kedziroski, testified that Campbell visited her in the early afternoon of April 14. Kedziroski testified that Campbell proposed to have sexual relations and tugged at her clothes but did not hurt her.

Items seized from Campbell on the day of the murders included a pair of earrings that a witness identified as belonging to Renae Wicklund. An earring found in...

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