McMurtrey v. Ryan, 03-99002.
| Citation | 539 F.3d 1112 |
| Decision Date | 21 August 2008 |
| Docket Number | No. 03-99009.,No. 03-99002.,03-99002.,03-99009. |
| Parties | Jasper N. McMURTREY, III, Petitioner-Appellee, v. Charles L. RYAN, Warden, Respondent-Appellant. Jasper N. McMurtrey, III, Petitioner-Appellant, v. Charles L. Ryan, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Gregory Kuykendall, Kuykendall & Associates; Natman Schaye, Chandler & Udall, LLP, for the petitioner.
Terry Goddard, Attorney General; Kent E. Cattani, Chief Counsel, Capital Litigation Section; Patricia A. Nigro, Assistant Attorney General, Arizona Attorney General's Office, for the respondent.
Appeal from the United States District Court for the District of Arizona; Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CV-88-00844-TUC-WFN.
Before: HARRY PREGERSON, W. FLETCHER, and JAY S. BYBEE, Circuit Judges.
The State of Arizona appeals the federal district court's grant of habeas corpus relief to Petitioner Jasper N. McMurtrey, III, in this pre-AEDPA case.1 The district court concluded that McMurtrey's due process rights were violated when the Arizona trial court failed to hold a hearing to determine whether McMurtrey was competent to stand trial, despite considerable evidence suggesting that he was not. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).2 This violation, the court held, was not cured by a subsequent hearing. The federal district court also found that McMurtrey's trial counsel rendered ineffective assistance because his failure to renew a request for a competency hearing regarding McMurtrey's competency at the time of trial was objectively unreasonable. McMurtrey cross-appeals the federal district court's denial of nine other due process and ineffective assistance claims.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. For the reasons set forth below, we affirm the district court's finding that there was substantial evidence, particularly by the time of sentencing, to suggest that McMurtrey's due process rights were violated when the state trial court failed to hold a hearing to determine whether he was competent to stand trial and be sentenced. We also hold that this violation was not cured by a subsequent hearing. Because we affirm the federal district court on this ground, violation of due process, we do not reach the district court's decision on McMurtrey's claim of ineffective assistance of counsel. We also do not reach McMurtrey's cross-appeal of his nine due process and ineffective assistance claims.
Early in the morning on August 10, 1979, McMurtrey shot and killed two men and seriously injured a third man in an incident at the Ranch House Bar in Tucson, Arizona. McMurtrey and the three victims had apparently engaged in loud conversations about their toughness and had arm-wrestled, chewed glass, and shown off their tattoos. McMurtrey eventually went out to the parking lot and obtained a revolver from an acquaintance. He then returned to the bar, approached the victims, and fired the gun until it was empty. McMurtrey fled the state. In August 1980, approximately one year later, McMurtrey was arrested in Topeka, Kansas, and returned to Arizona for prosecution in the Ranch House shooting.
At trial, which began in July 1981, represented by attorney Bertram Polis and his associate counsel Henri Sadacca, McMurtrey did not deny shooting the victims. Rather, McMurtrey pleaded the defenses of self-defense, lack of premeditation, and insanity. On July 13, 1981, the jury returned a verdict of guilty on two counts of premeditated first degree murder and one count of attempted first degree murder. Pima County Superior Court Judge Jack Arnold found no mitigating factors and found that the fact that McMurtrey had created a grave risk of death to persons other than the intended victims was an aggravating factor. In August 1981, Judge Arnold sentenced McMurtrey to death for both murders and to a twenty-one-year term of imprisonment for the attempted murder conviction.
The Arizona Supreme Court affirmed the convictions and the sentence for attempted murder but vacated the death sentences, finding that the state trial court may not have considered fully all of McMurtrey's mitigation evidence. See State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, 645-46 (1983). After a new sentencing hearing, Judge Arnold resentenced McMurtrey to death. The Arizona Supreme Court, however, again vacated the death sentence and remanded for resentencing on account of the trial court's misapplication of the "beyond a reasonable doubt" standard to McMurtrey's mitigation evidence. See State v. McMurtrey, 143 Ariz. 71, 691 P.2d 1099, 1100-01 (1984). Judge Arnold held a third sentencing hearing and again imposed the death sentences. This time, in 1986, the Arizona Supreme Court affirmed the death sentences. See State v. McMurtrey, 151 Ariz. 105, 726 P.2d 202 (1986).
In July 1987 McMurtrey filed a petition for Post-Conviction Relief ("PCR") and, with new counsel, an amended petition in September 1987, asserting, inter alia, (1) that Polis provided ineffective assistance in failing to request a timely competency hearing, and (2) that McMurtrey had been mentally incapable of assisting Polis during trial. Attached to the petition was an affidavit from Sadacca, Polis's associate counsel, stating that during the trial McMurtrey was either heavily sedated or extremely agitated. Sadacca noted that McMurtrey's alternating states of sedation and agitation made it difficult for McMurtrey (1) to assist with the preparation of his defense, and (2) to concentrate during pre-trial interviews or courtroom proceedings. On February 26, 1988, Judge Arnold denied the petition, finding that all of the issues were barred because McMurtrey could have raised them on direct appeal or were otherwise precluded. Judge Arnold denied the request for rehearing in April 1988. In September 1988, the Arizona Supreme Court denied review.
In October 1989, McMurtrey filed a second petition for PCR in state court. McMurtrey contended that the jail's administration of medication had rendered him mentally incompetent at trial. Affidavits from McMurtrey and Polis were attached to the PCR petition. McMurtrey's affidavit stated that he had been given "heavy doses of a great variety of drugs before, during, and after" trial that prevented him from being able to think clearly or to assist in his defense. Polis's affidavit stated that he witnessed irrational displays of anger and extreme mood swings and that McMurtrey's mental state worsened as the trial proceeded. On June 20, 1990, the state trial court dismissed McMurtrey's second amended petition for PCR on procedural grounds. In April 1991, the Arizona Supreme Court denied review and in May 1991 denied McMurtrey's motion to reconsider. McMurtrey filed a third petition for PCR about victim impact statements that was denied in November 1991; review was denied in May 1992.
McMurtrey filed a habeas petition in federal district court on December 19, 1988. The district court stayed the proceedings in September 1989 to allow him to exhaust the previously mentioned ineffective assistance of counsel and competency claims contained in his second petition for PCR in state court. In May 1991, after McMurtrey's second petition for PCR was dismissed, the federal district court lifted the stay and allowed him to file an amended habeas petition. McMurtrey filed an amended petition in August 1991 raising twenty-six claims. McMurtrey filed a second amended petition in May 1992.
Following oral argument on preclusion issues in February 1994, in March 1994 District Judge Richard M. Bilby concluded that, under Arizona law, the state trial court had erroneously precluded the ineffective assistance claim raised in McMurtrey's first petition for PCR without providing an evidentiary hearing or ruling on the merits. Judge Bilby therefore stayed habeas proceedings and remanded so that the state court could address the merits of the ineffective assistance claim in McMurtrey's first petition for PCR.
In November and December 1994, Judge Arnold conducted a six-day evidentiary hearing on that and other claims. In May 1995, Judge Arnold denied relief, finding that McMurtrey had been mentally competent for trial and that the performance of McMurtrey's counsel had not been deficient. McMurtrey petitioned for review in November 1995. Again, the Arizona Supreme Court denied review of the third petition for PCR. In May 1997, the Arizona Supreme Court denied review of McMurtrey's fourth petition for PCR, filed in April 1996 and based on the use of a hypnotized witness, and denied review of Judge Arnold's evidentiary ruling.
On November 18, 1997, the federal district court lifted its stay and allowed McMurtrey to file a third amended habeas petition raising forty-three claims. McMurtrey filed a fourth petition in May 1998 enhancing one of his claims. Judge Bilby died on August 11, 1998, and the case was reassigned to Judge William F. Nielsen on September 28, 1998.3
In an order entered March 6, 2000, addressing McMurtrey's fourth amended petition, the federal district court ruled that portions of twenty-eight of McMurtrey's fourty-four habeas claims were procedurally defaulted and that McMurtrey established neither (1) cause and prejudice, nor (2) a fundamental miscarriage of justice to excuse the defaults. The district court directed further briefing on the merits of the remaining claims, which included the claim that the state trial court erred in not ordering an evidentiary hearing on McMurtrey's competence to stand trial.
On March 4, 2003, in a thorough fifty-three-page memorandum and order, the district court granted habeas relief to McMurtrey. McMurtrey v. Ryan, No. 88-844 (D.Ariz. Mar. 4, 2003...
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