Adamson v. Lewis
| Citation | 955 F.2d 614 |
| Decision Date | 30 January 1992 |
| Docket Number | No. 84-2069,84-2069 |
| Parties | John Harvey ADAMSON, Petitioner-Appellant, v. Samuel A. LEWIS, * Director, Arizona Department of Corrections, et al., Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Timothy J. Foley, San Francisco, Cal., and Timothy K. Ford, MacDonald Hoague & Bayless, Seattle, Wash., for petitioner-appellant.
Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before HUG, SCHROEDER, PREGERSON, ALARCON, FERGUSON, D.W. NELSON, BOOCHEVER, NORRIS, BEEZER, BRUNETTI and THOMPSON, Circuit Judges.
This death penalty case involves the fifth time this court has considered a challenge by John Harvey Adamson to the State of Arizona's efforts to sentence him to death, and the third time this court has sat en banc to review Adamson's sentence. A thorough history of the background of this case is set forth in our prior en banc decision. Adamson v. Ricketts, 865 F.2d 1011, 1013-16 (9th Cir.1988), cert. denied sub nom., Lewis v. Adamson, --- U.S. ----, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990).
In our en banc decision, we held the sentence of death to be unconstitutional on six grounds. The State petitioned for certiorari to the United States Supreme Court. One day before ruling on that petition, the Supreme Court filed the decisions in Walton v. Arizona, --- U.S. ----, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and Lewis v. Jeffers, --- U.S. ----, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), which upheld the constitutionality of the Arizona death penalty statute against two challenges similar to those relied upon in our en banc decision. The following day, the State's petition for certiorari in this case was denied.
Prior to issuance of the mandate by our Clerk's office, the State filed a motion with our court to stay the issuance of the mandate and a motion for a rehearing and a rehearing en banc before the full court. The ground for the motions is that the cases of Walton, Lewis, and a third prior case, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), undermined the authority of our decision in this case. The State contended that even though the Supreme Court denied certiorari and did not vacate this case, we should withhold the mandate and reconsider the case in light of these subsequent Supreme Court decisions.
A subsequent issue arose when the State and Adamson entered into a Stipulation and Cooperation Agreement that could result in reinstating the original 1977 plea agreement. The State contends that the case is moot and therefore the appeal should be dismissed and the judgment vacated. We hold that the case is not moot and that the mandate should not be withheld, but should be issued forthwith.
Adamson first appealed to this court in 1980 after the district court rejected Adamson's petition for habeas corpus review of the state court's order vacating his sentence of imprisonment, his judgment of conviction, and his guilty plea to second degree murder, and after the State had proceeded to prosecute Adamson for first degree murder. In an unpublished disposition, a three-judge panel of this court affirmed the district court's denial of Adamson's petition. Adamson v. Hill, 667 F.2d 1030 (9th Cir.1981) (unpublished disposition).
Following Adamson's conviction and death sentence, and after Adamson had exhausted all of his state remedies, a three-judge panel of this court then affirmed the district court's denial of Adamson's second petition for habeas corpus review. Adamson v. Ricketts, 758 F.2d 441 (9th Cir.1985) (Adamson I ). This en banc panel then reversed the three-judge panel on double jeopardy grounds, Adamson v. Ricketts, 789 F.2d 722 (9th Cir.1986) (en banc) (Adamson II ), and was in turn reversed by the Supreme Court. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). On remand, in ruling on issues that we had expressly declined to address in our prior opinion, we found Adamson's death sentence to be unconstitutional on various constitutional grounds and remanded the case to the district court with instructions to grant the writ unless the State, within a reasonable time, resentenced Adamson to a sentence other than death. Adamson v. Ricketts, 865 F.2d 1011, 1044 (9th Cir.1988) (en banc ) (Adamson III ). The State petitioned the Supreme Court for certiorari and we entered a stay of the issuance of the mandate pending the Supreme Court's action on the petition.
The issues before us now arise from actions taken by the State following the Supreme Court's denial of the petition for certiorari. The relevant facts and prior proceedings surrounding the present case are set forth below.
In the opinion filed December 22, 1988, this en banc court addressed the following claims of constitutional violations: (1) seeking and imposing the death penalty after Adamson asserted his Fifth Amendment right against self-incrimination constituted prosecutorial and judicial vindictiveness; (2) the judge's imposition of the death penalty, when he had originally determined that a sentence of 48-49 years was the appropriate penalty for Adamson, was judicial arbitrariness that violated the Eighth Amendment; (3) the Arizona death penalty statute violated Adamson's Sixth Amendment rights to a jury determination of the existence of aggravating circumstances; (4) the statute utilized an aggravating factor that was unconstitutionally vague; (5) the statute violated the Eighth Amendment by precluding meaningful consideration of all mitigating circumstances and by creating a presumption of imposition of a death sentence; and (6) the State trial court erroneously admitted evidence in violation of the Confrontation Clause. Adamson III, 865 F.2d at 1016-17. In reversing the district court by upholding five of Adamson's asserted claims, we held that the State's decision to seek the death penalty after previously agreeing to a term of imprisonment raised a presumption of prosecutorial vindictiveness sufficient to warrant a remand to the district court for an evidentiary hearing, but found insufficient evidence of judicial vindictiveness. Id. at 1017. However, we held that the state trial judge's imposition of the death penalty was arbitrary in violation of the Eighth and Fourteenth Amendments. Id. at 1020. We also held that the Arizona death penalty statute was unconstitutional on all three of the grounds asserted by Adamson. Id. at 1029, 1038, 1039. We affirmed the district court's rejection of Adamson's claim that the admission of certain hearsay statements at trial violated the Confrontation Clause. Id. at 1044.
The State timely petitioned for rehearing on January 9, 1989. The petition was not accompanied by a suggestion for rehearing by the full en banc court. On February 1, 1989, a majority of this panel denied the State's petition for rehearing. We granted the State's motion to stay issuance of the mandate pending the Supreme Court's final disposition of the State's petition for certiorari review. On March 20, 1989, the State filed its petition for certiorari to the Supreme Court. The Supreme Court denied the State's petition on June 28, 1990, and the denial was filed with this court on July 2, 1990. 1
After the Supreme Court's denial of certiorari, but prior to issuance of this court's mandate, the State filed a motion to stay issuance of the mandate on July 10, 1990. Also on July 10, 1990, the State submitted a "Motion For Rehearing and Suggestion for Rehearing Before Full En Banc Court," which was followed by a "Motion to Circulate Petition For Rehearing Before the Full Court" submitted on July 16, 1990. This was the State's first request for rehearing before the full en banc court.
While these issues were pending, the State and Adamson entered into a "Stipulation and Cooperation Agreement," which essentially reinstated the January 15, 1977 plea agreement. The Stipulation and Cooperation Agreement was approved by the Superior Court of Arizona, Maricopa County, on February 1, 1991. Under the terms of that agreement, "Adamson agrees to cooperate fully with the State in the investigation and prosecution of the June 1976 murder of Donald Bolles, and in the investigation and prosecution of any crimes or cases arising out of or connected with the murder." This principally involves the murder trials of Robinson and Dunlap, who allegedly hired Adamson to commit the murder of Bolles, for which Adamson was convicted and sentenced to death in 1980. After completion of the murder trials of Robinson and Dunlap, Adamson will tender to the State trial court a guilty plea to second degree murder and will request "that the court reactivate the January 15, 1977 plea agreement." The State agrees that "the State will, if Adamson has at all times provided complete and truthful testimony and otherwise complied with the terms of this agreement, join in that request and in Adamson's motion." The agreement further provides that if Adamson violates the terms of the agreement, the first degree murder conviction and death sentence will be automatically reinstated.
On the basis of this Stipulation and Cooperation Agreement, the State has filed a motion to vacate the judgment of our court and to dismiss the appeal as moot. We conclude, however, that the case is not moot because all of the conditions precedent to the vacation of Adamson's death sentence have not been fulfilled.
A habeas corpus petition is not moot "until it can be said with certainty" that the state court judgment in question will not affect the petitioner's liberty. Mancusi v. Stubbs, 408 U.S. 204, 206, 92 S.Ct. 2308, 2309, 33 L.Ed.2d 293 (1972). So long as a habeas petitioner remains confined under a sentence from which he has not been...
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