Andrews v. Deland

• Decision Date: 23 August 1991
• Docket Number: 89-4109 and 90-4145,Nos. 89-4104,s. 89-4104
• Citation: 943 F.2d 1162
• Parties: William ANDREWS, Plaintiff-Appellant, v. Gary DELAND, Director of Utah Department of Corrections, and M. Eldon Barnes, Warden, Utah State Prison, Defendants-Appellees. William ANDREWS, Petitioner-Appellant, v. M. Eldon BARNES, Warden, Utah State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1162

943 F.2d 1162

William ANDREWS, Plaintiff-Appellant, v. Gary DELAND, Director of Utah Department of Corrections, and M. Eldon Barnes, Warden, Utah State Prison,

Defendants-Appellees.

William ANDREWS, Petitioner-Appellant, v. M. Eldon BARNES, Warden, Utah State Prison, Respondent-Appellee.

Nos. 89-4104, 89-4109 and 90-4145.

United States Court of Appeals,

Tenth Circuit.

Aug. 23, 1991.

Rehearing Denied Oct. 31, 1991.

Gordon G. Greiner, Holland & Hart, Denver, Colo., and Timothy K. Ford, MacDonald Hoague & Bayless, Seattle, Wash. (Sandra R. Goldman, Holland & Hart, Denver, Colo., and Robert M. Anderson, Anderson & Watkins, Salt Lake City, Utah, with them on the briefs), for appellant.

Robert R. Wallace, Hanson, Epperson & Smith, Salt Lake City, Utah (T.J. Tsakalos, and Daniel S. McConkie, Hanson, Epperson & Smith, Salt Lake City, Utah, with him on the briefs), for appellees.

Before McKAY, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

William Andrews appeals from the denial of his second federal petition for a writ of habeas corpus, and the dismissal of his accompanying civil rights action. Those matters were filed in the district court in July, 1989. Andrews thereafter amended and supplemented his habeas petition to include issues arising from proceedings before the Utah Board of Pardons. In August, 1989, the district court issued its decision on the matters raised by Andrews in his initial filing. However, the issues raised by Andrews' amendment required significant additional development, including the presentation of evidence. Upon the conclusion of those proceedings the district court entered a final, appealable order in August, 1990, denying all relief. Andrews filed his notice of appeal, thus conferring jurisdiction over his habeas petition on this court, on September 17, 1990. With due consideration of appropriate briefing schedules, the matter was scheduled for oral argument to our court in January, 1991. Having considered all the written and oral argument of the parties, we now grant a certificate of probable cause, and affirm the dismissal of Andrews' habeas petition as well as his civil rights action. A more detailed procedural history of this lengthy case follows.

Andrews was convicted in Utah state court on three counts of first degree murder and two counts of aggravated robbery. The three murder counts arose out of Andrews' participation in the torture and murders of Carol Naisbitt, Michelle Ansley, and Stanley Walker in the Hi-Fi Shop in Ogden, Utah, on the evening of April 22, 1974. The aggravated robbery counts stemmed from the robberies of Stanley Walker and his father, Orren Walker, Jr. Andrews was tried jointly with Pierre Dale Selby, formerly known as Dale S. Pierre, and Keith Roberts. Roberts was convicted of aggravated robbery and sentenced to a prison term. Selby was convicted on all counts and sentenced to death. After extensive appeals in state and federal courts, his death sentence was carried out on August 28, 1987. Andrews was likewise sentenced

to death on the murder counts. His conviction and sentence were affirmed on direct appeal by the Utah Supreme Court. State v. Andrews, 574 P.2d 709 (Utah 1977) (Andrews I ), reh'g denied, 576 P.2d 857 (Utah 1978). ¹ The United States Supreme Court denied certiorari. Andrews v. Utah, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978)

In November, 1978, Andrews filed a petition, subsequently amended, for postconviction relief in the district court of Salt Lake County, Utah. That petition was dismissed and the Utah Supreme Court affirmed the dismissal after reviewing the merits. Andrews v. Morris, 607 P.2d 816 (Utah 1980) (Andrews II ). ² The United States Supreme Court again denied certiorari. Andrews v. Morris, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980).

Andrews then filed his first federal habeas petition in the United States District Court for the District of Utah. ³ While that petition was pending, the Utah Supreme Court issued a decision, State v. Wood, 648 P.2d 71 (Utah 1982), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982), which was possibly relevant to Andrews' case. The federal district court stayed the proceedings in Andrews' habeas petition to permit him to again seek collateral relief in the Utah Supreme Court on the question of the retroactive application of the Wood decision to his case. The Utah Supreme Court held that the decision was not retroactive and denied the petition for postconviction relief. Andrews v. Morris, 677 P.2d 81 (Utah 1983) (Andrews III ). Proceedings in Andrews' federal habeas petition were resumed, and ultimately the petition for habeas relief was denied. Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 1984) (Andrews IV ). ⁴ This court affirmed the denial. Andrews v. Shulsen, 802 F.2d 1256 (10th Cir.1986) (Andrews V ). Again, the United States Supreme Court denied certiorari. Andrews v. Shulsen, 485 U.S. 919, 108 S.Ct. 1091, 99 L.Ed.2d 253 (1988).

Meanwhile, in October, 1987, Andrews filed another petition for postconviction relief in the district court of Salt Lake County, Utah, raising for the first time some of the issues presented in the present habeas petition. That state petition was denied, and the denial was affirmed on appeal by the Utah Supreme Court. Andrews v. Shulsen, 773 P.2d 832 (Utah 1988) (Andrews VI ). A new execution date was set for August 22, 1989.

The present petition for a writ of habeas corpus was filed on July 19, 1989. Andrews simultaneously filed a civil rights action under 42 U.S.C. § 1983. Both matters were referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). In an 89-page Report and Recommendation, the magistrate judge recommended dismissal of the habeas petition. ⁵ The district court adopted the Report and Recommendation and dismissed the petition. Andrews v. Barnes, 1989 WL 230923 1989 U.S.Dist. LEXIS 17246 (D.Utah 1989). By order dated August 19, 1989, this court issued a stay of execution.

While the present habeas petition was pending before the district court, the Utah Board of Pardons conducted a hearing on Andrews' Application for Commutation of Death Sentence. The hearing took place on August 10 and 11, 1989, and resulted in the denial of Andrews' application to commute his death sentence to life imprisonment. At that hearing, however, certain information came to light which formed the basis of a new application for postconviction relief before the Utah Supreme Court,

as well as the supplement to the present petition for habeas corpus relief. The Utah Supreme Court addressed the two issues raised on their merits, and, on August 18, 1989, denied the petition for postconviction relief and refused to grant a stay of execution. Andrews v. Barnes, 779 P.2d 228 (Utah 1989) (Andrews VII ). The United States Supreme Court again denied certiorari. Andrews v. Barnes, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 341 (1989)

After the stay of execution was entered by this court on August 19, the supplement to the present petition for habeas relief generated additional discovery and a hearing before the magistrate judge. Ultimately, on May 10, 1990, the magistrate judge issued a 68-page Report and Recommendation recommending dismissal of the issues raised in the supplement to that petition. Andrews made numerous motions in the district court pertaining to the magistrate judge's report. By order dated August 3, 1990, the district court adopted the magistrate judge's Report and Recommendation and dismissed Andrews' supplement to the present petition for a writ of habeas corpus. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). Andrews filed a Motion for Reconsideration and/or a New Trial as well as a Motion for Certificate of Probable Cause, which were denied. Those denials, as well as the dismissal of his civil rights claim, were timely appealed to this court.

DISCUSSION

Issues Presented on Appeal.

Andrews' habeas petition, as supplemented, raises five issues: (1) whether Andrews' court-appointed counsel was ineffective, as demonstrated by his failure to differentiate Andrews' culpability from that of his co-defendant, Pierre Selby, and, particularly, by his failure to request a jury instruction on the lesser included offense of second degree murder; (2) whether Andrews was denied his right to due process and to freedom from arbitrariness in capital sentencing by the failure of the trial court to instruct the jury on the lesser included offense of second degree murder, which, Andrews asserts, was clearly available under the evidence; (3) whether Andrews was denied the right to a fair and impartial jury because the trial judge failed to take appropriate action to determine the prejudicial effect on the jury, if any, of the jury's exposure during the trial to a note depicting a hanging with the words "Hang the Niggers;" (4) whether Andrews was impermissibly prejudiced by the prosecutor's use of a peremptory challenge to dismiss the only black juror impanelled; and (5) whether Andrews was similarly prejudiced by the presentation by the prosecution, during the penalty phase of Andrews' trial, of allegedly false testimony concerning the incidence of recidivism by convicted murderers at the Utah State Prison. His civil rights claim seeks injunctive relief from the imposition of his death sentence.

The state asserts numerous grounds for dismissing Andrews' habeas petition: abuse of the writ, procedural default, lack of exhaustion, nonretroactivity under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and lack of substance on the merits. The magistrate judge and district court rejected all of Andrews' arguments, finding that some were an abuse of the writ, some were procedurally defaulted, and some were without merit. Additionally, they found one claim barred under Teague's nonretroactivity doctrine. Andrews challenges those rejections and argues also that the...