Fetterly v. Paskett

• Decision Date: 09 July 1993
• Docket Number: No. 90-35627,90-35627
• Citation: 997 F.2d 1295
• Parties: Donald Kenneth FETTERLY, Petitioner/Appellant, v. David PASKETT, Warden, Idaho State Prisons; and Jim Jones, Attorney General of the State of Idaho, Respondents/Appellees. Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1295

997 F.2d 1295

Donald Kenneth FETTERLY, Petitioner/Appellant, v. David PASKETT, Warden, Idaho State Prisons; and Jim Jones Attorney General of the State of Idaho Respondents/Appellees.

No. 90-35627.

United States Court of Appeals,Ninth Circuit.

Argued April 10, 1991.

Submission deferred April 25, 1991.

Reargued and Submitted March 31, 1993.

Decided July 9, 1993.

Thomas J. McCabe, Westberg, McCabe & Collins, Boise, ID, David J. Burman, Nicholas P. Gellert, Perkins Coie, Spencer C. McIntyre, Ragen & Cromwell, Seattle WA, for petitioner/appellant.

Lynn E. Thomas, Sol. Gen., Office of Atty. Gen. of State of Idaho, Boise, ID, for respondents/appellees.

Appeal from the United States District Court for the District of Idaho, Marion J. Callister, District Judge, Presiding.

Before: SCHROEDER, LEAVY, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Donald Fetterly comes to us sentenced to death by the State of Idaho. Among his claims on appeal from a denial by the district court of his petition for a writ of habeas corpus is a claim that he should have been granted a stay to exhaust in state court newly identified Constitutional claims. Fetterly's newly appointed counsel had discovered these claims and wanted to include them in Fetterly's petition. Counsel's request for a stay was denied, and Fetterly's petition was not amended. These new claims relate to admitted irregularities in the manner in which the sentencing court determined Fetterly must die for the murder of Sterling Grammer.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253 (1988), and we order a limited remand to the district court with instructions to permit Fetterly to amend his petition so he may litigate his newly exhausted claims.

I

On December 15, 1983, Donald Fetterly was convicted by a jury in Idaho of the premeditated murder of Sterling Grammer. In a subsequent sentencing hearing, the trial court sitting without a jury found as statutorily aggravating circumstances that (1) the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity; (2) the defendant exhibited utter disregard for human life; and (3) the murder was committed during the commission of a felony, i.e., burglary, and was accompanied by the specific intent to cause the death of a human being. See Idaho Code § 19-2515(g)(1)-(10). The trial court sentenced Fetterly pursuant to Idaho Code § 19-2515. Section 19-2515(c) provides:

Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust.

Because the trial court determined that the "mitigating circumstances [found in Fetterly's favor] do not outweigh the gravity of the aggravating circumstances," it sentenced Fetterly to death. Fetterly's conviction and his death sentence were affirmed by the Supreme Court of Idaho, State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986), and his first attempt to secure post-conviction relief was unsuccessful. State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989).

II

On April 10, 1989, Fetterly filed a petition for a writ of habeas corpus in the District Court for the District of Idaho that is the subject of this appeal. The lawyer who filed the petition was the same lawyer who had represented Fetterly at every stage of the case in state court.

On October 17, 1989, a second lawyer entered this case on behalf of Mr. Fetterly, Mr. Thomas J. McCabe. He was appointed pursuant to 21 U.S.C. § 848(q)(4)(B), and (5), (6), (7). As Mr. McCabe stated during oral argument, he was new to the case, and thus, gave it "a fresh look." As he did, he concluded that the trial court erred with respect to the manner in which it weighed the mitigating circumstances against the aggravating ones. Instead of weighing the mitigating circumstances collectively against each of the aggravating circumstances separately, as required by Idaho Code § 19-2515(c), the sentencing judge had weighed all the mitigating circumstances against all the aggravating circumstances together as a group.

Mr. McCabe's recognition of this error was aided no doubt by the decision of the Supreme Court of Idaho in State v. Charboneau, 116 Idaho 129, 774 P.2d 299, cert. denied, 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989). Charboneau was decided on April 4, 1989, just 6 days before Fetterly's first attorney filed Fetterly's petition for a writ of habeas corpus in federal district court, and before Mr. McCabe entered the case. In Charboneau, the Supreme Court of Idaho explicitly disapproved of the weighing approach to aggravating and mitigating circumstances taken by the sentencing judge in the instant case. The court said: "If the legislature had intended the mitigating circumstances to be weighed against all the aggravating circumstances found as a group, it would have referred to 'the aggravating circumstances found.' The plain meaning of the statute dictates our conclusion on this issue." 774 P.2d at 323.

When Mr. McCabe discovered the possible presence of "Charboneau error," as it is now called in Idaho, he took two steps on behalf of his client. On June 15, 1990, he filed a second state petition for post-conviction relief alleging, inter alia, Charboneau error and ineffective assistance of counsel; and on June 20, 1990, he requested the federal district court to stay the resolution of his pending petition to allow him to exhaust Fetterly's state remedies on the newly identified issues. Mr. McCabe's goal in requesting a stay was to exhaust all his federal Constitutional claims in state court and then to present them in a single proceeding for review in the federal court. In so doing, he would have avoided any claim by Idaho that any second petition would be defective as "abusive." See McCleskey v. Zant, 499 U.S. 467, ---- - ----, 111 S.Ct. 1454, 1465-66, 113 L.Ed.2d 517 (1991). Mr. McCabe also recognized that if he moved to amend his petition in federal court, it would have been subject to dismissal under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) because it contained unexhausted claims.

On June 26, 1990, the district court denied Fetterly's stay pending further argument. On August 1, 1990, the denial of the stay was made final on the ground that, as a matter of law, none of the new issues raised were matters of federal Constitutional dimension and thus were not cognizable under habeas corpus. The district court in a "sua sponte" decision stated that the Charboneau problem was exclusively a matter of state law. Fetterly v. Paskett, 744 F.Supp. 966, 976 (D.Idaho 1990) (citing Pulley v. Harris, 465 U.S. 37, 41-42, 104 S.Ct. 871, 874-875, 79 L.Ed.2d 29 (1984)). Fetterly was not given an opportunity directly to brief or to argue this pivotal issue prior to the district court's adverse ruling. Subsequently, the district court denied Fetterly's original petition on the merits, Fetterly v. Paskett, 747 F.Supp. 594 (D.Idaho 1990), and Fetterly filed this timely appeal. One of the issues raised, and the only issue we decide in this opinion, is whether the district court abused its discretion in rejecting Fetterly's motion for a stay pending exhaustion of newly discovered issues.

III

We heard argument for the first time on April 10, 1991. At that time, Fetterly's second state post-conviction petition for relief, based primarily on Charboneau error, coupled with a claim of ineffective assistance of counsel, was pending before the Supreme Court of Idaho. Because a determination of this issue in Fetterly's favor would have mooted this appeal, we deferred submission pending a decision of the Supreme Court of Idaho.

On December 19, 1991, Fetterly lost his appeal. See Fetterly v. State, 121 Idaho 417, 825 P.2d 1073 (1991), cert. denied, --- U.S. ----, 113 S.Ct. 607, 121 L.Ed.2d 542 (1992). In a divided opinion, the Supreme Court of Idaho determined that its holding in Charboneau constituted a "new rule." Citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) with respect to the implications of a "new rule" on retroactivity, the Supreme Court of Idaho refused to apply Idaho Code § 19-2515(c) to Fetterly's case because his case was "final prior to the issuance of Charboneau." ¹ Id. at 1075. The court also concluded that Fetterly's ineffective assistance of counsel claim had been waived. Id. Fetterly's subsequent petition to the United States Supreme Court for a writ of certiorari was denied on November 30, 1992. Fetterly v. Idaho, --- U.S. ----, 113 S.Ct. 607, 121 L.Ed.2d 542 (1992).

After the Idaho Supreme Court made its determination on Fetterly's claim of Charboneau error, we scheduled oral argument in Boise, Idaho on March 31, 1993. Based on that argument and the record in this case, we have determined as explained below that the appropriate steps at this juncture are: 1) to order a limited remand to the district court to permit Fetterly to amend his petition to add the newly exhausted claims; and, 2) to order the district court to adjudicate those claims and any issues directly related to them. We will hold in abeyance a determination on Fetterly's other claims which we conclude were fully developed in the district court. In so doing, we avoid piecemeal adjudication in the court of appeals.

IV

With respect to matters involving Idaho Code § 19-2515(c) and Fetterly's other newly exhausted claims, the only issue before us is whether the district court committed error in rejecting Fetterly's new...