Beam v. Paskett

• Decision Date: 30 July 1990
• Docket Number: Civ. No. 89-1114.
• Citation: 744 F. Supp. 958
• Parties: Albert Ray BEAM, Plaintiff, v. Dave PASKETT, Warden of the Idaho State Prison, Defendant.
• Court: U.S. District Court — District of Idaho

744 F. Supp. 958

Albert Ray BEAM, Plaintiff, v. Dave PASKETT, Warden of the Idaho State Prison, Defendant.

Civ. No. 89-1114.

United States District Court, D. Idaho.

July 30, 1990.

Gar Hackney, Lynn, Scott, Hackney & Jackson, Boise, Idaho, David Skeen, Port Townsend, Wash., for plaintiff.

Jim Jones, Atty. Gen., State of Idaho, Lynn E. Thomas, Sol. Gen., State of Idaho, Boise, Idaho, for defendant.

MEMORANDUM OF OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

RYAN, Chief Judge.

FACTS & PROCEDURE

In 1984, petitioner and a co-defendant, Michael Shawn Scroggins, were tried jointly before separate juries and subsequently convicted of first degree murder in the District Court for the Third Judicial District, in and for Canyon County.¹ Thereafter, petitioner appealed the conviction and state court rulings on his motions for post-conviction relief. In the process, petitioner exhausted all available state post-conviction remedies.

On April 17, 1989, petitioner filed the instant petition for writ of habeas corpus in this court. The matter was fully briefed and came on for hearing before this court at the Idaho Maximum Security Institution (IMSI) on December 8, 1989. The petitioner was represented by Gar Hackney and David Skeen. The State of Idaho was represented by Lynn E. Thomas.

The petitioner cites several errors of constitutional magnitude in support of his petition for writ of habeas corpus: (1) that Idaho Code § 19-2827(c)(3) and the Eighth and Fourteenth Amendments of the United States Constitution require a proportionality review by the Idaho Supreme Court of all capital sentences; (2) that petitioner's Eighth and Fourteenth Amendment rights to an impartial post-conviction judge on the issue of proportionality were violated where the trial judge participated in the simultaneous trial of the petitioner and his co-defendant and, thereafter, refused to disqualify himself from hearing petitioner's post-conviction motions; (3) that petitioner was deprived of his constitutional right to a trial by jury on the issues of aggravating and mitigating circumstances; (4) that the aggravating factors found in Idaho Code §§ 19-2515(f)(5), -(6), and -(8) (1979) fail to adequately channel the sentencing judge's discretion, thus resulting in the arbitrary and capricious imposition of the death sentence; and (5) that the use of a dual jury during a simultaneous trial with his co-defendant violated petitioner's Fifth, Sixth and Fourteenth Amendment rights.

The State of Idaho claims that several of the issues raised in petitioner's petition for writ of habeas corpus have been procedurally defaulted and, therefore, should not be considered by this court. The court, however, is reluctant to apply the procedural bar to issues arising out of and relating to either capital sentencing procedures or the imposition of the sentence of death. See, e.g., Paradis v. Arave, 667 F.Supp. 1361, 1365-66 (D. Idaho 1987) (where the Idaho Supreme Court is statutorily obligated to conduct an independent review of all issues arising out of sentencing, this court will infer that all such issues have been decided on direct appeal). The court, finding that the petitioner has not procedurally defaulted as to any of the issues raised in his petition for writ of habeas corpus, will discuss each argument below seriatim.

ANALYSIS

I. Proportionality

Petitioner argues in part I of his brief in support of petition for writ of habeas corpus (petition) that Idaho Code § 19-2827(c)(3) and the Eighth and Fourteenth Amendments of the United States Constitution require a proportionality review by the Idaho Supreme Court of all capital sentences. Section 19-2827(c)(3) provides, in pertinent part, that "the court must consider whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Idaho Code § 19-2827(c)(3) (1987). Petitioner does not claim that the Idaho Supreme Court failed to conduct the statutorily required review, but only that the guidelines set forth in Section 19-2827(c)(3) fail to minimize the risk of arbitrary or capricious decisions in cases having similar factual circumstances.

In light of the Supreme Court cases under the Eighth Amendment, particularly Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), petitioner cannot argue successfully that state courts are constitutionally required to conduct proportionality reviews of death sentences. Both Pulley and McCleskey state that proportionality review is not constitutionally required, provided that the state's statutory procedures adequately channel the sentencer's discretion. McCleskey v. Kemp, 481 U.S. at 306, 107 S.Ct. at 1774. These decisions make clear that proportionality review may be considered and implemented by the states as an additional safeguard against arbitrarily imposed death sentences; proportionality review, however, is simply not constitutionally required.

In the present case, petitioner, in addition to asserting that Idaho Code §§ 19-2515(f)(5), -(6) and -(8) fail to sufficiently narrow or channel the sentencer's discretion (see part IV of Brief of Petitioner, filed Sept. 18, 1989), argues that additional "channeling" is necessary in order to reduce or eliminate the potential for arbitrary and/or capricious, i.e., disproportional, sentences. Petitioner, in support of this argument, directs the court's attention to the case of petitioner's co-defendant wherein the Idaho Supreme Court reversed a sentence following a proportionality review.

Under the Idaho capital sentencing statutes, if a defendant is convicted of murder, the court thereafter determines whether each aggravating circumstance outweighs each and every mitigating circumstance. At that point, the defendant becomes "death penalty eligible." Once this determination is made, there is a presumption that the death sentence is not disproportionate to the crime. See, e.g., Pulley v. Harris, 465 U.S. at 43, 104 S.Ct. at 875. The court in Pulley noted further that the existence of other safeguards or limitations on the sentencer's discretion renders "proportionality review" superfluous. Id. at 49, 104 S.Ct. at 879.

It is clear that proportionality review is not constitutionally required where, as here, the state's capital sentencing scheme adequately channels the sentencer's discretion. See part IV of this order, at 962-965. Moreover, the mere fact that petitioner's co-defendant did not receive the death penalty does not establish that the Idaho punishment system operates in an arbitrary and capricious manner. Cf. McCleskey v. Kemp, 481 U.S. at 306-07, 107 S.Ct. at 1774-75. The court, based upon the foregoing analysis and finding that petitioner has no constitutional right to a proportionality review, will deny petitioner's request for habeas relief as to this issue.

II. Defendant's Constitutional Right to an Impartial and/or Unbiased Post-Conviction Judge

Petitioner asserts in part II of his brief in support of the petition that his Eighth and Fourteenth Amendment rights to an impartial post-conviction judge on the issue of proportionality were violated where the trial judge participated in the simultaneous trial of the petitioner and his co-defendant and, thereafter, refused to disqualify himself from hearing petitioner's post-conviction motions.

It is well settled that "a fair trial in a fair tribunal is a basic requirement of due process." Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)); see also United States v. Navarro-Flores, 628 F.2d 1178 (9th Cir.1980). The Supreme Court noted further in Larkin that "not only is a biased decision-maker constitutionally unacceptable but `our system of law has always endeavored to prevent even the probability of unfairness.'" Withrow v. Larkin, 421 U.S. at 47, 95 S.Ct. at 1464 (quoting In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625).

The Supreme Court has not addressed this issue directly. The Court has, however, had a number of occasions to discuss the propriety and/or constitutionality of combining investigative and adjudicatory functions into a single administrative agency, i.e., whether the combining of such activities in one agency violates concepts of due process. These cases, although not directly on point, are instructive on the issues of judicial prejudice and bias. The court in Larkin noted, in dicta, that:

No decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions of both law and fact.

Id. at 48-49, 95 S.Ct. at 1465 (quoting FTC v. Cement Institute, 333 U.S. 683, 702-03, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948)). Later, the Court noted:

Certainly it is not the rule of judicial administration that, statutory requirements apart ... a judge is disqualified from sitting in a retrial because he was reversed on earlier rulings. We find no warrant for imposing upon administrative agencies a stiffer rule, whereby examiners would be disentitled to sit because they ruled strongly against a party in the first hearing.

Id. 421 U.S. at 49, 95 S.Ct. at 1465 (quoting NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-37, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947)). Still later, the Court cited Cement Institute for the following proposition: "It is not contrary to due process to allow judges and administrators who have had their initial decisions reversed on appeal to confront and decide the same questions a second time around." Id. 421 U.S. at 57, 95 S.Ct. at 1469 ...