693 F.3d 1104 (9th Cir. 2012), 08-99003, Wood v. Ryan

Docket Nº:08-99003.
Citation:693 F.3d 1104
Opinion Judge:THOMAS, Circuit Judge:
Party Name:Joseph Rudolph WOOD, III, Petitioner-Appellant, v. Charles L. RYAN, interim Director, Arizona Department of Corrections, Respondent-Appellee.
Attorney:Julie S. Hall (argued), Law Offices of Julie S. Hall, Oracle, AZ; and Kevin C. Lerch, Law Office of Kevin C. Lerch, Tucson, AZ, for petitioner-appellant Joseph Rudolph Wood, III. Terry Goddard, Attorney General; Kent Cattani (argued), Chief Counsel, Capital Litigation Section; and Amy Pignatella ...
Judge Panel:Before: SIDNEY R. THOMAS, RONALD M. GOULD, and JAY S. BYBEE, Circuit Judges.
Case Date:September 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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693 F.3d 1104 (9th Cir. 2012)

Joseph Rudolph WOOD, III, Petitioner-Appellant,

v.

Charles L. RYAN, interim Director, Arizona Department of Corrections, Respondent-Appellee.

No. 08-99003.

United States Court of Appeals, Ninth Circuit.

September 10, 2012

Argued and Submitted Nov. 18, 2011.

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Julie S. Hall (argued), Law Offices of Julie S. Hall, Oracle, AZ; and Kevin C. Lerch, Law Office of Kevin C. Lerch, Tucson, AZ, for petitioner-appellant Joseph Rudolph Wood, III.

Terry Goddard, Attorney General; Kent Cattani (argued), Chief Counsel, Capital Litigation Section; and Amy Pignatella Cain, Assistant Attorney General, Tucson, AZ, for respondents-appellees Charles L. Ryan et al.

Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding. D.C. No. 4:98-CV-00053-JMR.

Before: SIDNEY R. THOMAS, RONALD M. GOULD, and JAY S. BYBEE, Circuit Judges.

OPINION

THOMAS, Circuit Judge:

Joseph R. Wood III, an Arizona state prisoner, appeals the district court's denial of his habeas corpus petition challenging his state convictions for murder and aggravated assault and the imposition of the death penalty. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

I

Petitioner Joseph Wood shot and killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, on August 7, 1989 at a Tucson automotive paint and

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body shop owned and operated by the Dietz family. The Arizona Supreme Court described the facts as follows:

Since 1984, Defendant and Debra had maintained a tumultuous relationship increasingly marred by Defendant's abusive and violent behavior. Eugene generally disapproved of this relationship but did not actively interfere. In fact, the Dietz family often included Defendant in dinners and other activities. Several times, however, Eugene refused to let Defendant visit Debra during business hours while she was working at the shop. Defendant disliked Eugene and told him he would " get him back" and that Eugene would " be sorry."

Debra had rented an apartment that she shared with Defendant. Because Defendant was seldom employed, Debra supported him financially. Defendant nevertheless assaulted Debra periodically. 1. She finally tried to end the relationship after a fight during the 1989 July 4th weekend. She left her apartment and moved in with her parents, saying " I don't want any more of this." After Debra left, Defendant ransacked and vandalized the apartment. She obtained an order of protection against Defendant on July 8, 1989. In the following weeks, however, Defendant repeatedly tried to contact Debra at the shop, her parents' home, and her apartment. 2.

Debra and Eugene drove together to work at the shop early on Monday morning, August 7, 1989. Defendant phoned the shop three times that morning. Debra hung up on him once, and Eugene hung up on him twice. Defendant called again and asked another employee if Debra and Eugene were at the shop. The employee said that they had temporarily left but would return soon. Debra and Eugene came back at 8:30 a.m. and began working in different areas of the shop. Six other employees were also present that morning.

At 8:50 a.m., a Tucson Police officer saw Defendant driving in a suspicious manner near the shop. The officer slowed her patrol car and made eye contact with Defendant as he left his truck and entered the shop. Eugene was on the telephone in an area where three other employees were working. Defendant waited for Eugene to hang up, drew a revolver, and approached to within four feet of him. The other employees shouted for Defendant to put the gun away. Without saying a word, Defendant fatally shot Eugene once in the chest and then smiled. When the police officer saw this from her patrol car she immediately called for more officers. Defendant left the shop, but quickly returned and again pointed his revolver at the now supine Eugene. Donald Dietz, an employee and Eugene's seventy-year-old brother, struggled with Defendant, who then ran to the area where Debra had been working.

Debra had apparently heard an employee shout that her father had been shot and was trying to telephone for help when Defendant grabbed her around the neck from behind and placed his revolver directly against her chest. Debra struggled and screamed, " No, Joe, don't!" Another employee heard

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Defendant say, " I told you I was going to do it, I have to kill you." Defendant then called Debra a " bitch" and shot her twice in the chest.

Several police officers were already on the scene when Defendant left the shop after shooting Debra. Two officers ordered him to put his hands up. Defendant complied and dropped his weapon, but then grabbed it and began raising it toward the officers. After again ordering Defendant to raise his hands, the officers shot Defendant several times.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158, 1165-66 (1994). Wood was arrested and indicted on two counts of first degree murder and two counts of aggravated assault against the police officers who subdued him. Id. at 1166. At trial, Wood conceded his role in the killings, but argued that they were impulsive acts that were not premeditated. Id. After a five-day trial, the jury found Wood guilty on all counts. Id. at 1169. Following an aggravation and mitigation hearing, the trial court sentenced Wood to imprisonment for the assaults and to death for each murder. Id. at 1165.

In 1994, the Arizona Supreme Court affirmed Wood's convictions and sentences. Id. The court also independently reviewed the evidence of aggravating and mitigating circumstances and determined that the trial court correctly concluded that the aggravating circumstances outweighed the mitigating circumstances, thereby supporting the imposition of the death penalty. Id. The United States Supreme Court denied certiorari, Wood v. Arizona, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995), and Wood's petition for rehearing, Wood v. Arizona, 515 U.S. 1180, 116 S.Ct. 24, 132 L.Ed.2d 907 (1995).

In 1996, Wood filed a state petition for post-conviction review (PCR). The state post-conviction court and the Arizona Supreme Court denied relief. In 2002, Wood filed a second PCR petition. The state post-conviction court and Arizona Supreme Court again denied relief.

In 1998, Wood filed a Petition for Writ of Habeas Corpus in federal district court, followed by the filing of an Amended Petition later that year. In 2006, the district court issued an order on the procedural status of Wood's claims, finding certain claims properly exhausted and ordering merits briefing on those claims and dismissing others as procedurally barred. Order Re: Procedural Status of Claims, Wood v. Schriro, No. CV-98-053-TUC-JMR, 2007 WL 3124451 (D.Ariz. Mar. 21, 2006), ECF No. 63. In 2007, the district court denied Wood's remaining habeas claims on the merits. Wood v. Schriro, No. CV-98-053-TUC-JMR, 2007 WL 3124451, at *46 (D.Ariz. Oct. 24, 2007).

We review the district court's denial of Wood's habeas petition de novo and its findings of fact for clear error. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010). We review the denial of Wood's request for an evidentiary hearing for an abuse of discretion. Id. Wood filed his habeas petition after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act (" AEDPA" ) applies. Woodford v. Garceau, 538 U.S. 202, 204-07, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). To obtain relief under AEDPA, Wood must show that the state court's decision (1) " was contrary to" clearly established federal law as determined by the Supreme Court, (2) " involved an unreasonable application of" such law, or (3) " was based on an unreasonable determination of the facts" in light of the record before the state court. Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting 28 U.S.C. § 2254(d)).

II

The district court correctly determined that Wood was not entitled to habeas relief

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on his claims that the prosecutor committed prejudicial misconduct in violation of his rights to due process and a fair trial. The district court denied five claims on the merits and concluded that four claims were procedurally barred.

A

The district court was correct in its denial of Wood's prosecutorial misconduct claims on the merits. Wood argues that the prosecutor committed prejudicial misconduct by: (1) cross-examining a psychologist about whether another doctor had considered hypnotizing or administering amobarbital to Wood; (2) eliciting testimony about a prior arrest, his employment history, and his personal relationships with previous girlfriends and with Ms. Dietz; (3) cross-examining a psychologist about Wood's mental state; (4) cross-examining a lay witness about Wood's mental state; and (5) committing cumulative error.

A prosecutor's actions constitute misconduct if they " so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The " appropriate standard of review for such a claim on writ of habeas corpus is ‘ the narrow one of due process, and not the broad exercise of supervisory power.’ " Id. (quoting Donnelly, 416 U.S. at 642, 94 S.Ct. 1868). On habeas review, constitutional errors of the " trial type," including prosecutorial misconduct, warrant relief only if they " had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d...

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