Paradis v. Arave

• Decision Date: 23 March 1994
• Docket Number: No. 87-4100,87-4100
• Parties: Donald M. PARADIS, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy, Director, Idaho State Correctional Institution, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 950

20 F.3d 950

Donald M. PARADIS, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy,

Director, Idaho State Correctional Institution,

Respondents-Appellees.

No. 87-4100.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 19, 1994.

Decided March 23, 1994.

Edwin S. Matthews, Jr., Coudert Brothers, New York City, William L. Mauk, Skinner, Fawcett & Mauk, Boise, ID, for petitioner-appellant.

Lynn E. Thomas, Deputy Atty. Gen., Boise, ID, for respondents-appellees.

On Remand from the United States Supreme Court.

Before: ALARCON and BEEZER, Circuit Judges, and NIELSEN ^*, District Judge.

ALARCON, Circuit Judge:

On June 22, 1980, the bodies of Scott Currier and Kimberly Palmer were found in a forest in Idaho. Petitioner Donald Paradis and Thomas Gibson were tried jointly and acquitted of Currier's murder in September 1980. Paradis and Gibson were tried separately in Idaho for the murder of Palmer. Both were convicted after trial by jury and sentenced to death by Judge Gary Haman, who found that they had acted with "utter disregard for human life."

Paradis' judgment of conviction and the sentence of death were affirmed by the Supreme Court of Idaho. State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984). Thereafter, Paradis' petition for state post-conviction relief was denied. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). Paradis subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of Idaho, challenging the judgment of conviction and the sentence on federal constitutional grounds. After an evidentiary hearing, the district court denied the petition. Paradis v. Arave, 667 F.Supp. 1361 (D.Idaho 1987), aff'd in part and rev'd in part, 954 F.2d 1483 (9th Cir.1992), vacated and remanded, --- U.S. ----, 113 S.Ct. 1837, 123 L.Ed.2d 463 (1993).

Paradis appealed from the denial of his petition to this court. We deferred submission pending the determination of Creech v. Arave, 947 F.2d 873 (9th Cir.1991), rev'd in part, --- U.S. ----, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). During this period, we requested supplemental briefs addressing the applicability of recently decided Supreme The Supreme Court granted certiorari in Creech v. Arave, and in this matter. In Arave v. Creech, --- U.S. ----, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), the Court reversed the judgment of this court. The Court held that the statutory term "utter disregard for human life," as defined by the Idaho Supreme Court, was not unconstitutionally vague. Id. --- U.S. at ----, 113 S.Ct. at 1545. This matter was remanded by the Court for further consideration in light of its conclusion that that portion of Idaho's death penalty statute was constitutional. Arave v. Paradis, --- U.S. ----, 113 S.Ct. 1837, 123 L.Ed.2d 463 (1993).

                Court cases to the issues raised in Paradis' appeal.  After submitting this matter for decision, we concluded that each of Paradis' constitutional claims with respect to the guilt phase of his trial lacked merit.  Paradis v. Arave, 954 F.2d 1483, 1495 (9th Cir.1992), vacated and remanded, --- U.S. ----, 113 S.Ct. 1837, 123 L.Ed.2d 463 (1993).  In Creech v. Arave, a separate panel of this court held that Idaho's "utter disregard for human life" aggravating factor was unconstitutionally vague.  Creech v. Arave, 947 F.2d at 883.   Relying on the law of the circuit as explained in Creech v. Arave, we reversed the district court's denial of habeas corpus relief regarding the constitutionality of the sentence of death.  Paradis v. Arave, 954 F.2d at 1495.   We affirmed the denial of his federal constitutional claims regarding the guilt phase of the state proceedings.  Id.  Because we reversed the district court's determination that there was no merit to Paradis' challenge to the constitutionality of the term "utter disregard for human life," we did not reach Paradis' other attacks on the validity of the sentence.  Id
                

We must now examine the federal constitutional claims raised by Paradis with regard to the sentence which we did not previously reach in our first opinion. Our review of the denial of a habeas corpus petition is de novo, independent of the district court's conclusions. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc). We dismiss one claim because it was not raised in the district court. We conclude that the remaining contentions lack merit and affirm the denial of the petition for habeas corpus relief.

I.

In response to this court's request of June 7, 1993, for supplemental briefs on the applicability of Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to the issues raised in Paradis' habeas corpus petition, appellees A.J. Arave and Al Murphy (Idaho) contend that these Supreme Court decisions bar Paradis' claims that (1) there is insufficient evidence to support a beyond a reasonable doubt finding that Paradis exhibited utter disregard for human life, (2) Paradis was denied his rights under the Confrontation Clause, and (3) Paradis was sentenced to death without a finding of sufficient culpability.

In Teague, the Supreme Court held that new federal constitutional decisions cannot generally be invoked by a state prisoner in a federal habeas corpus proceeding. Teague, 489 U.S. at 310, 109 S.Ct. at 1075; see also Butler, 494 U.S. at 412, 110 S.Ct. at 1216; Penry, 492 U.S. at 313, 109 S.Ct. at 2493. In this case, the Supreme Court denied certiorari on July 5, 1984, following the affirmance of Paradis' judgment of conviction and sentence of death by the Idaho Supreme Court. State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984). Thus, Paradis may not seek application of any new federal constitutional rule announced by the Court after July 5, 1984.

None of the claims Idaho challenges as procedurally barred because of the new rule restriction was first recognized by the Court after July 5, 1984. The rational juror standard for the sufficiency of the evidence was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The due process requirement that a defendant be advised of all materials to be used against him in sentencing was announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The Eighth Amendment rule requiring proportionate culpability

for imposing a death sentence was enunciated in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Therefore, the merits of Paradis' claims can be reviewed in a petition pursuant to 28 U.S.C. Sec. 2254 because none are based upon on a new constitutional rule.

II.

In our August 9, 1990, order requesting supplemental briefing, we directed the parties to discuss the applicability, if any, of the Court's decision in Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), to the issues raised in Paradis' appeal. In reviewing the sufficiency of evidence supporting a finding of an aggravating factor in Jeffers, the Court held that federal courts should apply the "rational factfinder" standard announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to state prisoner habeas corpus proceedings. Jeffers, 497 U.S. at 781, 110 S.Ct. at 3102. In his supplemental brief, Paradis argued for the first time that the facts do not support a finding beyond a reasonable doubt that he acted with "utter disregard for human life." This issue was not presented to the district court.

Our August 9, 1990 order did not authorize the raising of additional federal constitutional claims. Instead, the parties were requested to address whether recently decided Supreme Court cases had an impact upon the claims Paradis had already raised in his appeal. ¹ The order did not permit Paradis to introduce an issue which had not been set forth in his habeas corpus petition. Because this issue was not presented to the district court, we will not review it. See Willard v. California, 812 F.2d 461, 465 (9th Cir.1987) (this court will not entertain claims which are not included in the petition to the district court).

III.

In Arave v. Creech, --- U.S. ----, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), the Supreme Court held that the statutory aggravating factor of "utter disregard for human life," as defined by the Idaho Supreme Court in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), was not unconstitutionally vague. Arave v. Creech, --- U.S. at ----, 113 S.Ct. at 1545. In Osborn, the Idaho Supreme Court stated that "utter disregard" was "meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer." Osborn, 631 P.2d at 201. The U.S. Supreme Court interpreted Osborn to differentiate those who kill with "utter disregard for human life" from premeditative killers--to refer instead to those who kill without feeling or sympathy. Arave v. Creech, --- U.S. at ----, 113 S.Ct. at 1541. The Court stated: "[P]remeditation is clearly not the sense in which the Idaho Supreme Court used the word 'cold-blooded' in Osborn. Other terms in the limiting construction--'callous' and 'pitiless'--indicate that the court used the word 'cold-blooded' ... [to refer] to a killer who kills without feeling or sympathy." Id. So construed, the Court held the aggravating factor was constitutional.

Paradis contends that Judge Haman did not apply the Idaho Supreme Court's definition of "utter disregard" when he found that the evidence demonstrated the presence of this aggravating factor. Citing Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Paradis argues that his...