Andrews v. Carver, 92-C-663-S.
| Decision Date | 29 July 1992 |
| Docket Number | No. 92-C-663-S.,92-C-663-S. |
| Parties | William ANDREWS, Petitioner, v. Scott CARVER, Warden of the Utah State Prison, Respondent. |
| Court | U.S. District Court — District of Utah |
Robert M. Anderson, Anderson & Karrenberg, Salt Lake City, Utah, Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., Gordon G. Greiner, Sandra Goldman, Holland & Hart, Denver, Colo., for petitioner.
Robert R. Wallace, Daniel D. Anderson, Daniel S. McConkie, T.J. Tsakalos, Hanson, Epperson & Smith, Salt Lake City, Utah, for respondent.
William Andrews, an inmate at the Utah State Prison under the custody of the respondent warden, has filed a Petition for Habeas Corpus and Motion for Stay of Execution. The petitioner is under sentence of death and awaiting execution. The petitioner has challenged, in substance, both the imposition of the death sentence and the validity of his conviction.
This is the third petition for habeas corpus that has been filed by Andrews in this court. The initial petition was denied by Judge David K. Winder. Andrews v. Shulsen, 600 F.Supp. 408 (D.Utah 1984). A second petition was filed and resolved in two stages. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). In the latter case, the initial petition was denied. Andrews v. Barnes, 1989 WL 230923 (D.Utah 1989) Lexis 17246. Thereafter, the petitioner filed a supplementary petition which was denied. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). The matter is now before the court again. Three petitions and four separate considerations of Andrews' claims have been addressed by members of this court. In addition, the petitioner has had several reviews by the Utah Supreme Court. See the history of the case set forth in Andrews v. DeLand, 943 F.2d 1162 (10th Cir.1991). After that case, the petitioner sought additional relief in the Utah Supreme Court.
The petitioner seeks a stay of execution to allow this court to hear the petition. A stay of execution "pending disposition of a second or successive federal habeas corpus petition should be granted only when there are `substantial grounds upon which relief might be granted.'" Delo v. Stokes, 495 U.S. 320, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990); Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983).
Rule 9(b), Rules Governing Section 2254 Cases, allows for dismissal of a second or successive petition if the judge finds it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition is an abuse of the writ. See also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The burden is on the petitioner to show that his case fits outside of the successive or abuse of the writ doctrine. Parks v. Reynolds, 958 F.2d 989 (10th Cir.1992). Further, in this case the response of the warden, although not as sharply and precisely stated as could be requested, does contend the petition is for delay and in a supplemental answer asserts a claim of abuse of the writ and a successive petition.1 McCleskey v. Zant, ___ U.S. ___, ___, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). This shifts the burden to the petitioner to show cause or prejudice for failure to previously raise the claim. Worthen v. Kaiser, 952 F.2d 1266 (10th Cir.1992). Abusive claims are barred unless the petitioner can satisfy the cause and prejudice standard applicable to a procedural default. McCleskey v. Zant, supra, ___ U.S. at ___, 111 S.Ct. at 1470. In McCleskey the court said an abuse of the writ can occur by petitioner raising a claim in a subsequent petition that he could have raised in the first petition regardless of whether the failure was due to deliberate choice. Id., ___ U.S. at ___, 111 S.Ct. at 1468.
In this case, there is nothing in Andrews' petition for habeas which would meet a cause or prejudice standard under McCleskey. See Parks v. Reynolds, 958 F.2d 989 (10th Cir.1992); Hopkinson v. Shillinger, 954 F.2d 609 (10th Cir.1992); Worthen v. Kaiser, supra. See also Andrews v. Deland, 943 F.2d 1162 (10th Cir.1991).
Further, in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) the Supreme Court addressed whether a habeas petition is entitled to the benefit of a "new rule" where the conviction is otherwise final. In this case the petitioner raises the new Utah legislation authorizing a sentence of life imprisonment without parole. Utah Code Ann. 76-3-207.5. Petitioner cannot argue that that statute has retroactive application and should apply to him since the Utah Supreme Court has decided the statute is not retroactive. Andrews v. Carver, No. 920308, ___ P.2d ___ (Utah 1992).2 Petitioner argues that the availability of this sentence somehow now undermines the factfinding process in the argument for the death sentence entitling him to claim a denial of due process and to habeas relief. This conceptualization, which may be well beyond any legitimate interpretation of Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) is urged by petitioner. To that extent, it is a new rule which is barred by Teague v. Lane, supra, unless the new rule places private conduct beyond the power of the lawmaking authority to proscribe or if it requires procedures the observance of which are implicit in the concept of ordered liberty. 489 U.S. at 306-08, 109 S.Ct. at 1073; Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990); Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Andrews v. Deland, supra.
It is against the above standards that this court must consider the petition for a stay and also the petition for habeas corpus under the Rules Governing Section 2254 Proceedings.
The petitioner in his first claim argues that the 1992 Utah Legislature enacted two statutes that altered the sentencing and clemency review process in capital cases in Utah. The Utah legislature provided for a sentence of life imprisonment without parole. The Utah Board of Pardons was prohibited from exercising its commutation or parole authority to alter such a sentence. The petitioner argues that during the sentencing phase of his trial, arguments were made and evidence presented as to the then existing parole process and time normally served by life-sentenced prisoners in Utah before parole. It was contended a death sentence was necessary in part to prevent future acts of violence by petitioner. Nothing in the prosecution's argument was materially false or improper under the status of Utah law at the time. The petitioner argues that the passage of the new life without parole provision undermines that argument and it would not be true that petitioner would be eligible for parole if not executed. The petitioner contends the State's denial of retroactivity is arbitrary, irrational and discriminatory.
There is no obligation that a state accord retroactive effect to new substantive statutes to allow a convicted person the benefit of a new statute where the conviction is final. The state's interest in maintaining the finality of convictions and sentences justifies a prospective legislative limitation. Such a judgment is not a denial of equal protection. The prospective application of a new statute is rationally related to the state interest. This is much like the claim made by petitioner that he was entitled to the new sentencing standard adopted by the Utah Supreme Court in State v. Wood, 648 P.2d 71 (Utah 1982). A constitutional requirement for retroactive application was expressly rejected in Andrews v. Shulsen, 802 F.2d 1256, 1270-1271 (10th Cir.1986).
Further, any such claim as a new principle would be barred by the non-retroactivity doctrine of Teague v. Lane, supra, which is itself argument against the petitioner's position.
Further, this situation is not governed by Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), since no false or erroneous information was given to the jury at the time of the sentencing process. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), is also inapplicable. In Johnson a prior conviction used in aggravation to support a death sentence was later invalidated. No invalid evidence was presented to the Utah jury. No invalid factor of aggravation was presented. Nothing akin to the Johnson situation was involved in the Andrews sentencing proceeding.
Andrews could not and cannot be sentenced under the new Utah statute to life without possibility of parole. That statute has no application to Andrews in the first instance unless his present sentence were set aside. That is not now the case. The sentence is valid and nothing erroneous was presented to the jury that imposed the original sentence. Therefore, the Johnson situation is inapposite.
Second, it is very doubtful if Andrews can be given a more stringent life sentence without parole when at the time of the crime the penalty, if death were not imposed, would be life, with the chance of parole. Such a restrictive change, even where it is a matter of legislative grace, violates the ex post facto clause.3Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (); Arnold v. Cody, 951 F.2d 280 (10th Cir.1991) ().
The court has, because of the nature of this case and the circumstances in which Andrews' petition is before the court, given careful consideration to the first...
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