Jeffries v. Blodgett

• Citation: 5 F.3d 1180
• Decision Date: 21 September 1993
• Docket Number: No. 91-36017,91-36017
• Parties: Patrick James JEFFRIES, Petitioner-Appellant, v. James BLODGETT, Superintendent, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1180

5 F.3d 1180

Patrick James JEFFRIES, Petitioner-Appellant, v. James BLODGETT, Superintendent, Respondent-Appellee.

No. 91-36017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1992.

Filed Sept. 9, 1992.

Withdrawn March 3, 1993.

Filed March 3, 1993.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 21, 1993.

Stephanie Ross, Bellingham, WA, Brian R. Phillips, Everett, WA, for petitioner-appellant.

Paul D. Weisser, Asst. Atty. Gen., Olympia, WA, for respondent-appellee.

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

Before: GOODWIN, FARRIS and FERNANDEZ, Circuit Judges.

ORDER

The opinion and dissent filed March 3, 1993, slip op. 1841 and appearing at 988 F.2d 923 (9th Cir.1993) are amended as follows:

With the opinion and dissent thus amended, Judges Goodwin and Farris have voted to deny the petition for rehearing. Judge Farris has voted to reject the suggestion for rehearing en banc, and Judge Goodwin so recommends. Judge Fernandez would grant the petition for rehearing, and has voted to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

GOODWIN, Circuit Judge:

Patrick James Jeffries appeals the judgment which denied his petition for a writ of habeas corpus. He was convicted in the State of Washington and sentenced to death on two counts of aggravated first-degree murder. The district judge carefully considered the 18 alleged constitutional violations asserted in the petition and explained, in detail, why none required federal intervention. Jeffries v. Blodgett, 771 F.Supp. 1520 (W.D.Wash.1991). We agree with the district court's resolution of all of the issues except one--the issue of juror misconduct. We therefore vacate and remand.

While there was no eyewitness to the murders, the state produced evidence from which the jury could find that Jeffries killed Phillip Skiff by firing seven .22 calibre bullets into his body, and killed Inez Skiff by firing ten .22 calibre bullets into her body. He then buried his victims in shallow graves on their property and told inquiring neighbors various false stories about their whereabouts. Either before or after the murders, Jeffries helped himself to the currency, gold, weapons and other personal property of the victims. He headed for Canada, leaving a trail of stolen property and witnesses who saw him selling or attempting to sell items stolen from the Skiffs. He was also seen flashing large quantities of Canadian money shortly after the Skiffs had been murdered. The late Mrs. Skiff had recently withdrawn $30,000 in Canadian currency from her bank in Canada. That money was never found or accounted for.

On November 5, 1983, the Clallam County Superior Court jury convicted Jeffries of two counts of aggravated murder. In a special verdict, the jury also found that two aggravating factors had been proven: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime, and (2) that the murders were committed as part of a common scheme or plan. Finding insufficient mitigating circumstances to warrant leniency, the jury sentenced Jeffries to death.

The Washington Supreme Court affirmed Jeffries' conviction and sentence on direct appeal. State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722 (Jeffries I ), 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. In re Jeffries, 722 P.2d 99 (1986) (Jeffries II ); In re Jeffries, 110 Wash.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948, 109 S.Ct. 379, 102 L.Ed.2d 368 (1988) (Jeffries III ); In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) (Jeffries IV ).

Jeffries then filed this habeas corpus petition in federal district court. The district court denied Jeffries' petition. Jeffries now appeals that denial.

We review de novo the district court's denial of habeas relief. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988). However, findings of fact by the state court are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d), Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir.1989), and are reviewed for clear error. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989).

In his habeas petition, Jeffries raises a number of constitutional issues covering every phase of his journey to this court. With regard to the district court, Jeffries argues that the court erred in failing to grant him an evidentiary hearing on newly discovered evidence and in refusing to allow him to present certain expert testimony. Concerning the Washington State Supreme Court, Jeffries argues that it was error for that court to make use of an improper report prepared by the trial judge. Concerning his state trial, Jeffries raises a number of issues covering: (1) the form of indictment; (2) fair trial; (3) evidentiary decisions of the trial judge; (4) aggravating circumstances; (5) mitigating circumstances; and (6) ineffective assistance of counsel.

I. Evidentiary Hearing

Jeffries argues that the district court erred in refusing to hold an evidentiary hearing concerning "newly discovered" evidence. The evidence concerns testimony of a travel agent who worked in the same town in which the victims had lived. According to her proposed testimony, three sinister-looking people driving a car with California plates entered her travel agency on the day of the murders and asked for directions to Barr Road or to the Barr Road Extension. The victims had lived on Barr Road.

The district court initially granted Jeffries' motion to hold an evidentiary hearing concerning this evidence. However, due to illness, the travel agent did not attend the scheduled hearing. Instead, her deposition was taken and the district court considered the information it contained in denying Jeffries' motion for a new trial.

A federal evidentiary hearing is mandatory if (1) petitioner's allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.1986). Jeffries can meet neither burden.

First, even if the travel agent's statement is true, Jeffries would not be entitled to relief. The mere existence of newly discovered evidence relevant to guilt is not grounds for federal habeas relief--more is needed. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); Gordon v. Duran, 895 F.2d 610, 614 (9th Cir.1990). Jeffries must show that the newly discovered evidence would probably have resulted in his acquittal. Gordon, 895 F.2d at 614-15; Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980). Evidence which suggests only that some other individual might have committed the crime rather than showing that the defendant did not commit the crime is insufficient to meet the "probability of acquittal" standard. Quigg, 616 F.2d at 1112. Jeffries' proffered evidence shows only that other persons were in the vicinity of the scene of the crime, not that they had any connection with the crime.

Second, Jeffries has already received a full and fair hearing in state court concerning this evidence. See Jeffries IV, 789 P.2d at 737.

II. Expert Testimony

Before the district court, Jeffries attempted to call to the stand psychologists who were to testify that reasonable jurors would have interpreted the jury instructions and special verdict form in an unconstitutional manner. Jeffries argues that, in refusing to allow him to introduce such expert testimony, the court committed error. We find no error. See McDougall v. Dixon, 921 F.2d 518, 532-33 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2840, 115 L.Ed.2d 1009 (1991).

III. Trial Judge Report

Jeffries argues that his constitutional right to due process was violated because the state trial judge prepared a trial report for use by the State Supreme Court in its proportionality review without giving Jeffries the opportunity to be heard. Jeffries' argument fails for two reasons.

First, the trial judge twice asked trial counsel for Jeffries to contribute toward preparation of the report but counsel failed to do so.

Second, because the trial judge report is used primarily for proportionality review, not for determining guilt or the sentence, and because Jeffries does not make a proportionality claim, he has suffered no prejudice by the use of the report. Even if the State Supreme Court uses this report to evaluate the evidence justifying the guilty verdict or to support the imposition of the death penalty, the entire trial record is available to fill in gaps that may exist in the report.

IV. Prosecution by Indictment

Jeffries argues that Washington's failure to prosecute this capital case by indictment violated his constitutional rights guaranteed by the Fifth, Eighth, and Fourteenth Amendments. Indictment by grand jury is not part of the due process guarantees of the Fourteenth Amendment that apply to state criminal defendants. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), recently affirmed by Rose v. Mitchell, 443 U.S. 545, 557 n. 7, 99 S.Ct. 2993, 3001 n. 7, 61 L.Ed.2d 739 (1979). This rule has been applied to Washington's state practice of prosecution by information. Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793 (1928). Accordingly, Jeffries' argument fails.

V. Fair Trial

Jeffries argues that his right to a fair...