Dickey v. Lewis

• Decision Date: 20 October 1988
• Docket Number: 87-1961,Nos. 87-1930,s. 87-1930
• Citation: 859 F.2d 1365
• Parties: Thurman DICKEY, Petitioner-Appellant/Cross-Appellee, v. Samuel LEWIS, Director, Arizona Department of Corrections; Attorney General of the State of Arizona, Respondents-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

859 F.2d 1365

Thurman DICKEY, Petitioner-Appellant/Cross-Appellee, v. Samuel LEWIS, Director, Arizona Department of Corrections Attorney General of the State of Arizona Respondents-Appellees/Cross-Appellants.

Nos. 87-1930, 87-1961.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 16, 1987.

Decided Oct. 20, 1988.

D. Jesse Smith, Tucson, Ariz., for petitioner-appellant/cross-appellee.

Bruce M. Ferg, Asst. Atty. Gen., Tucson, Ariz., for respondents-appellees/cross-appellants.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, Chief Judge, CHOY and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Thurman Dickey ("Dickey") appeals from the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus, following conviction on first degree murder charges in Arizona. The district court found that the state trial court's jury instruction permitted the jury to presume "intent to kill" from Dickey's use of a deadly weapon. The district court concluded that the error was constitutional but following Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), harmless. The district court found that the requisite intent had been proved "beyond a reasonable doubt". On appeal, Dickey argues that the tainted instruction should not be deemed harmless error. The State of Arizona ("State") argues on cross-appeal, that: 1) Dickey's failure to comply with state procedural requirements precludes federal review of his claim; 2) Dickey is not entitled to relief since he requested an instruction similar to the one challenged; 3) the instruction challenged is constitutional; and 4) even if the challenged instruction is unconstitutional, as a violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the error is harmless by application of Rose. We affirm.

I

In 1977, an Arizona superior court jury convicted Dickey of first degree murder. The court subsequently sentenced him to twenty-five years imprisonment. The Arizona Supreme Court affirmed. State v. Dickey, 125 Ariz. 163, 608 P.2d 302 (1980).

The state trial court gave a lengthy instruction to the jury which contained the sentence "intent to kill may be presumed from use of a deadly weapon."

Subsequent to Dickey's trial, the United States Supreme Court decided Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). InSandstrom, the Court held that the instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" unconstitutionally relieved the state of its burden of proof on the element of intent. See id. at 513-14, 521-24, 99 S.Ct. at 2453-54, 2457-59.

Dickey filed a motion in state superior court for a new trial, asserting Sandstrom error in the above jury instruction. ¹ On August 29, 1985, that court denied the motion, stating that the jury instructions, taken as a whole, did "not shift the burden of proof to the defendant on the question of intent but merely explain[ed] a permissive inference concerning the intent instruction." Dickey petitioned for review to the Arizona Supreme Court. On June 11, 1986, the court denied the petition with only a limited explanation. ²

On June 30, 1986, Dickey filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona. On March 13, 1987, the district court entered an order stating: 1) the Arizona Supreme Court ruled on the merits of Dickey's petition, thus waiving a bar to federal habeas review; 2) the decision in Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir.1986), found unconstitutional an instruction identical to the one given in Dickey's trial; and 3) the instruction, although unconstitutional, constituted harmless error. The court dismissed Dickey's petition. Dickey timely appeals, and the State cross-appeals.

II

The State argues on cross-appeal that Dickey's failure to comply with state procedural rules regarding post-conviction review precludes federal consideration of the merits of his claim. Principles of comity bar federal courts from reviewing allegations of constitutional deprivations that state courts have rejected on the basis of adequate state procedural grounds, unless the petitioner can show cause for and prejudice from the waiver. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).

Dickey's original petition to the state court for post-conviction relief did not allege Sandstrom error. In December, 1984, Dickey filed a second post-conviction petition, which for the first time raised the Sandstrom error issue. The State argued against this petition both on procedural grounds and on the merits. Under Ariz.R.Crim.P. Sec. 32.10, any grounds for relief not raised in a post-conviction petition "will be presumed waived and may not be the basis for subsequent petition unless the court finds there was reasonable ground for omitting the matter in the original petition for hearing." Thus, the State argued, since the law was clear at the time of Dickey's first petition, the statute barred him from raising the issue in his second petition. ³

On August 29, 1985, the superior court denied the petition on the merits, i.e., the court held that the instructions, taken as a whole, did not shift the burden of proof on the question of intent to kill. The court did not address the state's procedural argument. The Arizona Supreme Court denied Dickey's petition for review, without explanation.

The State contends that the Wainwright "cause and prejudice" standard should be applied when the State raises a procedural bar and argues on the merits, and that it is not clear on which basis the state court denied relief. We reject this contention. An ambiguous state court dismissal is presumed to be on the merits. Turner v. Compoy, 827 F.2d 526, 529 (9th Cir.1987). This presumption is appropriate under the circumstances of this case. "The most logical inference to be drawn from the Appellate Division's unexplained affirmance is that the court accepted not only the judgment but also the reasoning of the trial court." County Court of Ulster County v. Allen, 442 U.S. 140, 153, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979). Moreover, the statute itself speaks only in terms of a presumptive waiver and gives the trial court discretion (upon a finding of a "reasonable ground" for the omission) to hear the claim.

The Wainwright bar to federal habeas review is based upon "respect to the sovereignty of the States in our federal system." Ulster, 442 U.S. at 154, 99 S.Ct. at 2223. "[I]f ... the state courts [do not] indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim." Id. (footnote omitted). We affirm the district court's conclusion that no state procedural bar precludes federal review.

III

The State argues on cross-appeal that Dickey should be denied habeas relief since he requested and received a jury instruction similar to the contested instruction. We are not persuaded. Contrary to the State's assertion, the requested and challenged instructions are not "virtually identical." Dickey requested and received the following instruction: "If you determine that the defendant used a deadly weapon in the killing, you may find malice." The challenged instruction was "intent to kill may be presumed from use of a deadly weapon." From a legal standpoint, the phrase "may find" can be interpreted more permissively than the phrase "may be presumed." See Sandstrom, 442 U.S. at 528, 99 S.Ct. at 2461 (Burger, J., concurring). We refuse to conclude that Dickey's receipt of the requested instruction bars federal habeas review.

IV

The State's third argument on cross-appeal is that the district court incorrectly concluded that the challenged instruction shifted the burden of proof in violation of Sandstrom.

The district court cited Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir.1986), for the proposition that the instruction used in Dickey's case was unconstitutional. Notably however, in Sturgis, we found a similar error harmless without analyzing its constitutionality. ⁴ 4] The Sturgis decision, therefore, is persuasive, but not controlling.

In Sandstrom, the trial court instructed the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513, 99 S.Ct. at 2453. The Supreme Court held that, since a reasonable juror could have interpreted the presumption as conclusive or burden-shifting, the instruction unconstitutionally relieved the State of its burden of proof as to defendant's state of mind. Id. at 521-24, 99 S.Ct. at 2457-59. While some jurors may have interpreted the instruction as permissive, a reasonable juror might also have interpreted the instruction as mandatory. Id. at 519, 99 S.Ct. at 2456.

Subsequently we have held that, "[a] jury instruction is constitutionally defective if it creates a mandatory presumption, either conclusive or rebuttable, which shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminal offense." United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987).

"In contrast, an instruction advising of a permissive inference as to an essential element does not violate due process unless 'the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " Id. (quoting Francis v. Franklin, 471 U.S. 307, 314-15, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344 (1985)).

Our decisions have upheld instructions phrased in more permissive language than that deemed unconstitutional in Sandstrom. See Washington, 819 F.2d at 225 ("Use of a weapon ... in a way that causes death is evidence of malice...."); United States v. Johnson, 735 F.2d 373, 374 (9th Cir.1984) ("may consider it reasonable to draw the inference"...