Campbell v. Blodgett, 89-35210

• Decision Date: 01 April 1992
• Docket Number: No. 89-35210,89-35210
• Citation: 978 F.2d 1502
• Parties: Charles CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent, Washington State Penitentiary, Walla Walla, Washington; Kenneth O. Eikenberry, Attorney General, State of Washington, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1502

978 F.2d 1502

Charles CAMPBELL, Petitioner-Appellant, v. James BLODGETT, Superintendent, Washington State

Penitentiary, Walla Walla, Washington; Kenneth O.

Eikenberry, Attorney General, State of

Washington, Respondents-Appellees.

No. 89-35210.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 27, 1989.

Submission Withdrawn Feb. 21, 1991.

Resubmitted March 6, 1992.

Decided April 1, 1992.

Al Lyon, Mestel & Muenster, Olympia, Wash., Robert Gombiner, Nance, Iaria & Gombiner, Seattle, Wash., Charles Campbell, Monroe, Wash., pro per for petitioner-appellant.

Paul D. Weisser and John M. Jones, Asst. Atty. Gen., Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: HUG, POOLE, and HALL, Circuit Judges.

PER CURIAM:

Campbell was convicted of three counts of aggravated first degree murder and sentenced to death in the State of Washington. He filed a petition for writ of habeas corpus in the federal district court, which was denied and affirmed on appeal. Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). This proceeding is an appeal from the denial of a second petition for a writ of habeas corpus, contesting the conviction and the imposition of the death penalty. The district court's jurisdiction is based on 28 U.S.C. §§ 2241(a) and 2254; our appellate jurisdiction is based upon 28 U.S.C. § 1291.

The issues raised concerning the second petition may be distilled to the following:

1. Campbell's absence during the empaneling of the jury violated his constitutional rights and deprived him of a fair trial.

2. Trial counsel's actions in permitting Campbell to waive his right to be present at all phases of the trial constituted ineffective assistance of counsel.

3. The Washington death penalty statute is unconstitutional as applied in this case.

4. Campbell was not given constitutionally adequate access to the courts in his post-conviction proceedings.

5. The State's statutory provision for execution by hanging constitutes cruel and unusual punishment.

6. The district court did not provide an adequate evidentiary hearing.

I. Procedural History

In 1982, Charles Campbell was convicted of three counts of aggravated first degree murder and sentenced to death. His conviction was affirmed by the Washington Supreme Court. State v. Campbell, 103 Wash.2d 1, 691 P.2d 929 (1984). A stay of execution was obtained pending action by the United States Supreme Court on Campbell's petition for certiorari. On April 29, 1985, the petition was denied. Campbell v. Washington, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).

On May 17, a second death warrant was issued setting the execution for July 25, 1985. On July 11, 1985, Campbell filed a motion for stay of execution. The Washington Supreme Court treated the motion as a personal restraint petition and dismissed the petition on July 18, 1985. On July 22, 1985, Campbell filed a habeas corpus petition and a motion for stay of execution in the federal district court. The stay was granted by the district court. Campbell raised 61 issues, 40 of which had not been exhausted in state court. Because of the requirements of Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982), Campbell amended his petition, limiting it to the remaining 21 issues rather than having his petition dismissed and the stay dissolved. The district court considered the claims and held an evidentiary hearing on an allegation of ineffective assistance of counsel. On February 12, 1986, the petition was denied. Campbell appealed and we affirmed on October 6, 1987. Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987). On May 27, 1988, we denied the petition for rehearing and suggestion for en banc, and on November 7, 1988, the United States Supreme Court denied certiorari. Campbell v. Kincheloe, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). On January 25, 1989, we dissolved the stay of execution.

A third death warrant was then issued, setting the execution date for March 30, 1989. On March 23, 1989, the Washington Supreme Court denied a motion for a stay of execution. A petition for writ of habeas corpus was then filed with the federal district court. The petition was denied as was the request for a stay. However, a certificate of probable cause was issued. On March 28, 1989, Campbell appealed the denial

of the petition to our court and we granted a stay of execution pending appeal

In July, 1990, Campbell filed a third personal restraint petition in the Washington Supreme Court, raising further issues relating to his death sentence. The Washington Supreme Court appointed counsel, scheduled briefing, heard oral argument, and addressed the merits of Campbell's several claims. We withdrew submission of the appeal on Campbell's second habeas corpus petition on the ground that a ruling favorable to Campbell by the Washington Supreme Court could moot the action before our panel. In addition, Campbell indicated that an adverse ruling by the Washington Supreme Court would result in his filing a third petition for a writ of habeas corpus in the federal district court. We determined to withhold resubmitting the appeal of the denial of the second petition on the grounds that it would avoid piecemeal litigation to consolidate it with an appeal from the district court's ruling on the third petition for habeas corpus which would inevitably be filed either by Campbell or the State. It was our judgment that, even if Campbell's third petition were denied and a certificate of probable cause to appeal were denied by the district court, Campbell was still free to appeal that ruling. Fed.R.App.P. 22(b) specifies that even if the district court does not grant a certificate of probable cause, the notice of appeal is deemed to constitute a request to the circuit judges to issue a certificate of probable cause. Thus, any appeal of the denial of the writ would require a judgment on the part of our panel, either on whether to issue the certificate or on the merits. An order denying the certificate would, of course, be subject to en banc review, as would an affirmance or reversal of the district court's judgment on the merits.

The Supreme Court has since indicated that it would be preferable to proceed to decide the appeal on the second petition for habeas corpus rather than waiting to consolidate it with an appeal from the ruling on the third petition for habeas corpus. In re Blodgett, --- U.S. ----, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992). Therefore, we proceed to rule on the denial of the second petition.

II. Facts

The facts as presented by the State in the murder trial are set forth in detail in State v. Campbell, 103 Wash.2d. 1, 6-14, 691 P.2d 929, 933-37 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), which we briefly summarized in our consideration of the first petition as follows:

In 1974 Campbell assaulted Renae Wicklund in her home in Clearview, Washington. During the assault, Campbell forced Renae to submit to acts of sodomy by holding a knife to the throat of her one-year-old daughter, Shannah. Renae sought help after the attack from a neighbor, Barbara Hendrickson. After a 1976 trial at which both women testified against him, Campbell was convicted of first degree assault and sodomy and sent to prison.

In March 1982 Campbell was transferred to a work release facility in Everett, Washington. On April 14, 1982 Campbell returned to the home of Renae Wicklund in Clearview. There he beat Renae severely, strangled her, and slashed her throat. He then cut the throats of Shannah Wicklund, then eight years old, and Barbara Hendrickson, who, by a tragic twist of fate, was visiting Renae and Shannah that afternoon. All three victims bled to death.

Campbell v. Kincheloe, 829 F.2d at 1456.

III. Campbell's Absence at Jury Empaneling

The criminal case was set for trial in Snohomish County, which is in western Washington. A motion for a change of venue was made because of pretrial publicity. In response to that motion, the trial judge determined that the jury would be selected in Spokane County, 275 miles distant in eastern Washington; the jury would then be transported to Snohomish County for the trial. Campbell told his attorney

that he did not want to journey to Spokane County for the jury selection, but preferred to stay in Snohomish County to prepare for trial

The trial judge conducted a hearing to determine whether this request should be granted. Campbell, his attorney, and the prosecutor were present. The prosecutor expressed continuing concern over this procedure and feared the defense was laying a trap for later reversal. The trial judge then expressed his preliminary view that the request could be granted if Campbell made an intelligent waiver. In making this determination, the following colloquy took place between the trial judge and Campbell.

Q. Mr. Campbell, your attorney has said that you would prefer to remain in Snohomish County while we are selecting a jury in Spokane County. Is that right?

A. Yes, it is.

Q. Are you fully aware of the fact that you do have a right to be present while a jury is selected?

A. I do.

Q. I would assume it might be a constitutional right and, if my memory is correct, unless leave is granted by the court rules, the defendant must be present at all stages of the proceedings, unless he voluntarily absents himself or--generally along those lines. You do have a right to be present while a jury is being selected.

A. I understand that.

Q. And if you stay here and a jury is picked over there, you won't be present to hear the questions your attorney asks of the jurors. You may hear those questions later and you may be of the opinion that you wished they had asked other questions. You will not be present to supply them with questions. Do you...