Valerio v. Crawford

• Decision Date: 17 September 2002
• Docket Number: No. 98-99033.,98-99033.
• Citation: 306 F.3d 742
• Parties: John Espiredion VALERIO, Petitioner-Appellant, v. Jackie CRAWFORD, Director of the Department of Prisons; E.K. McDaniel, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

306 F.3d 742

John Espiredion VALERIO, Petitioner-Appellant, v. Jackie CRAWFORD, Director of the Department of Prisons; E.K. McDaniel, Warden, Respondents-Appellees.

No. 98-99033.

United States Court of Appeals, Ninth Circuit.

Rehearing En Banc Granted June 12, 2001.

Argued and Submitted En Banc September 24, 2001.

Filed September 17, 2002.

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Lawrence D. Wishart, Mary Beth Gardner, Reno, Nevada, for petitioner-appellant.

Frankie Sue Del Papa, David F. Sarnowski, Robert E. Wieland, Dorothy Nash Holmes, Office of the Attorney General, Las Vegas, NV, for respondent-appellee.

Franny A. Forsman, Michael Pescetta, Office of the Federal Public Defender, Las Vegas, NV, for Amicus Curiae.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-N-96-00362-HDM.

Before SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, RYMER, T.G. NELSON, THOMAS, GRABER, W. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

In this capital case, petitioner John Espiredion Valerio appeals the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We decide as follows:

First, we reverse the district court's dismissal of Valerio's habeas petition as to the penalty phase of his trial. During the penalty phase, the jury was instructed to determine whether the murder with which Valerio was charged "involved torture, depravity of mind, or mutilation of the victim." The jury concluded that this aggravating circumstance was present and, based in part on this conclusion, sentenced Valerio to death.

The jury instruction was clearly unconstitutional under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). On appeal from a denial of state post-conviction collateral relief, the Nevada Supreme Court sought to cure the error pursuant to the procedure endorsed in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled in part by Ring v. Arizona, ___ U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by applying a narrowing construction of the instruction to a de novo finding of the facts. We hold that the Walton procedure is not available when a jury rather than the trial judge has found the facts and determined whether there were aggravating and mitigating circumstances. We also hold that, even if the Walton procedure were available, the Nevada Supreme Court failed to provide "close appellate scrutiny" and therefore failed to cure the instructional error. Evaluating the effect of the error under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), we hold the error not harmless. We therefore remand with instructions that, should the district court upon remand deny Valerio's claims as to the guilt phase of his trial, it shall grant the writ as to the penalty phase and shall provide any appropriate interim relief.

Second, we address the effective date of our Circuit Rule 22-1. The district court granted a certificate of appealability ("COA") on the issue of the unconstitutional aggravator, but it refused to grant a COA on issues in two groups of additional claims relating to the guilt phase. Valerio sought to expand the COA to encompass the issues in these additional claims by briefing them to us, as expressly permitted under our decision in United States v. Cruz-Mendoza, 147 F.3d 1069, 1074-75 (9th Cir.1998) (Cruz-Mendoza I), amended and superseded in part by United States v. Cruz-Mendoza, 163 F.3d 1149 (9th Cir.1998) (Cruz-Mendoza II). Our Circuit Rule 22-1 sets forth procedural requirements for appellants seeking to expand a partially-denied COA which Valerio did not, and could not, satisfy. We hold that because Rule 22-1 went into effect after the district court denied the COA as to these other issues, it does not apply to Valerio's request for an expanded COA. We therefore hold that Valerio's request for an expanded COA on the additional issues briefed is properly before us.

Third, we address the first group of additional guilt-phase claims. That group consists of three claims newly added to Valerio's amended federal habeas petition. The district court dismissed these claims for abuse of the writ under Farmer v. McDaniel, 98 F.3d 1548 (9th Cir.1996). After the district court's decision, the Supreme Court reversed Farmer in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Based on Slack, we grant the expanded COA, reverse the dismissal of these claims, and remand to the district court for appropriate action.

Fourth, we address the second group of additional guilt-phase claims. This group consists of claims that the district court declined to decide on the ground that they had been procedurally defaulted in state court. We hold that the claims were not procedurally defaulted. We grant the expanded COA, reverse the dismissal of these claims, and remand to the district court for appropriate consideration.

I. Background

In 1988, a Nevada jury convicted petitioner-appellant Valerio of first degree murder with the use of a deadly weapon for the killing of Karen Sue Blackwell. Valerio had killed Blackwell by stabbing her 45 times. During the separate penalty proceeding, the jury found two aggravating circumstances: first, that Valerio had a prior violent felony conviction and second, that the murder "involved torture, depravity of mind, or mutilation." The jury returned a verdict of death.

Valerio appealed his conviction, arguing that he was prejudiced by prosecutorial misconduct and by the introduction of certain photographs at trial. The Nevada Supreme Court denied his direct appeal in September 1989. Valerio then filed a petition for post-conviction relief in state court pursuant to Nevada Revised Statute (NRS) Chapter 177. The petition claimed, inter alia, ineffective assistance of counsel ("IAC") and unconstitutionality of a penalty phase aggravating circumstance jury instruction requiring a finding of "torture, depravity of mind, or mutilation of the victim." After conducting an evidentiary hearing, the Nevada district court denied Valerio's petition in November 1990, rejecting all of his claims. The Nevada Supreme Court affirmed the denial in January 1992.

Valerio then filed a petition for habeas corpus in federal district court under 28 U.S.C. § 2254, alleging 18 claims for relief, some of which had not been exhausted in state court. Because the petition was "mixed," containing exhausted and unexhausted claims, the district court dismissed it under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In December 1992, Valerio filed a second state petition for post-conviction relief in Nevada district court, this time a petition for habeas corpus under NRS Chapter 34.¹ This petition alleged 24 claims for relief, including two claims based on ineffective assistance of counsel. The state district court dismissed the entire petition as procedurally barred under NRS 34.810. In April 1996, the Nevada Supreme Court affirmed the dismissal of Valerio's petition as procedurally barred. See Valerio v. State, 112 Nev. 383, 915 P.2d 874 (Nev. 1996).

In May 1996, Valerio filed a second petition for habeas corpus in federal district court. That petition, the focus of the present appeal, asserts the same 24 claims for relief that Valerio had presented to the Nevada state courts in his second state petition. As amended in December 1996, the petition also asserts three additional claims. Two claims assert further factual grounds supporting the claims of IAC. One claim asserts a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The federal district court dismissed most of Valerio's claims as procedurally defaulted in state court. The court then rejected the three newly added claims as an abuse of the writ under federal law. Finally, the court entered judgment denying Valerio's remaining claims on the merits and dismissed his petition on August 20, 1998. Valerio applied for a COA generally on all issues decided against him by the district court. He specifically applied for a COA on claim 13 (improper closing argument by the prosecutor in the penalty phase), claim 14 (unconstitutionally vague instruction on aggravating circumstance in the penalty phase), and claim 15 (insufficient evidence of torture and mutilation under the aggravating circumstance). On October 15, 1998, the district court granted the COA as to the issues in claims 13, 14, and 15 and denied certification as to all other issues.

Valerio appealed the district court's dismissal on the merits of claims 14 and 15.² He also sought to appeal the uncertified issues of whether the district court properly dismissed his other claims as procedurally defaulted or abusive. In an unpublished memorandum disposition, a three-judge panel of this court affirmed the district court's dismissal. The panel affirmed the district court's ruling on the merits of claims 14 and 15, concluding that the Nevada Supreme Court had cured any instructional error by applying a narrowing construction to the aggravating circumstance under Walton, 497 U.S. at 653-54, 110 S.Ct. 3047. Relying on Ninth Circuit Rule 22-1, the panel refused to consider the other issues Valerio had sought to appeal, through an expanded COA, when he argued in his briefs that his other claims were neither procedurally defaulted nor abusive. We have taken Valerio's appeal en banc and have vacated the panel's decision.

II. Depravity of Mind Jury Instruction

We first address Valerio's penalty-phase claim that a jury instruction on an aggravating circumstance was unconstitutional. We address this claim even though, as will be seen later in the opinion, we...