Carriger v. Lewis

Citation971 F.2d 329
Decision Date30 April 1992
Docket NumberNos. 87-1549,91-16334 and 91-70614,90-16016,90-16013,s. 87-1549
PartiesParis Hoyt CARRIGER, Petitioner-Appellant, v. Samuel A. LEWIS, Director of DOC; Attorney General, State of Arizona, Respondents-Appellees. Paris Hoyt CARRIGER, Petitioner-Appellee, v. Samuel A. LEWIS, et al., Respondents-Appellants. Paris Hoyt CARRIGER, Petitioner-Appellant, v. Samuel A. LEWIS, et al., Respondents-Appellees. Paris Hoyt CARRIGER, Petitioner-Appellee, v. Samuel A. LEWIS, et al., Respondents-Appellants. Paris Hoyt CARRIGER, Petitioner-Appellant, v. Samuel A. LEWIS, et al., Respondents-Appellees. . Argued and Submitted (en banc)
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Donald H. Bayles, Jr., Aspey, Watkins & Diesel, Flagstaff, Ariz., Robert J. Hirsh, Tucson, Ariz., for petitioner-appellant.

Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: WALLACE, Chief Judge, BROWNING, SCHROEDER, FARRIS, ALARCON, NORRIS, BEEZER, WIGGINS, LEAVY, FERNANDEZ, and T.G. NELSON, Circuit Judges.

FARRIS, Circuit Judge:

In 1978, Paris Hoyt Carriger was convicted of robbery and first-degree murder. After exhausting his state appeals, he sought a federal writ of habeas corpus. A panel of the Ninth Circuit denied the writ, see Carriger v. Lewis, 948 F.2d 588 (9th Cir.1991). We voted to re-hear the case en banc. We now vacate the panel's decision, but affirm the district court's denial of the writ.

FACTS

On March 13, 1978, Robert Shaw's jewelry store was robbed. The robber tied Shaw's hands behind his back, and repeatedly struck his skull with an iron skillet. Shaw suffered a crushed skull, but was still alive when he was strangled with his own necktie. The robber departed the store with stolen jewelry.

Two days later, Arizona indicted Carriger for the robbery and first-degree murder of Shaw. On July 28, 1978, Carriger was found guilty on both counts and sentenced to 99-100 years imprisonment for the robbery, and death for the murder.

Carriger dismissed his trial counsel, obtained new counsel, and appealed his conviction and sentence. The Arizona Supreme Court affirmed. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Pursuant to Az.R.Crim.P. 32, Carriger then filed a petition for post-conviction relief. On appeal, the Arizona Supreme Court held that Carriger was entitled to a new sentencing hearing because Carriger's counsel had rendered inadequate assistance at sentencing. State v. Carriger, 132 Ariz. 301, 645 P.2d 816, 820 (1982). The Arizona Supreme Court also remanded for consideration of all other claims properly raised by Carriger's Rule 32 petition. Id.

On remand, the trial court reimposed the original sentence. It also denied Carriger relief for his remaining claims. The Arizona Supreme Court affirmed, and dismissed Carriger's Rule 32 petition. State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985).

In 1985, Carriger filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona, raising eight different claims. In late 1986, the district court granted Arizona's summary judgment motion on all issues. Upon rehearing, the district court denied Carriger's motion to vacate the summary judgment. Carriger timely appealed.

At Carriger's request, we stayed our consideration of his appeal pending the outcome of his second Rule 32 motion in the Arizona state courts. Carriger asserted that he had discovered new exculpatory evidence. The Arizona state courts denied his petition. Carriger then asked this court to remand his appeal to the district court so that he could file a Federal Rule of Civil Procedure 60(b) motion regarding the newly discovered evidence. We denied his request and informed Carriger that he must first "show that the district court has indicated a willingness to consider the new evidence." Order of October 2, 1989, Carriger v. Lewis, No. 87-1549. We granted leave to renew the motion for remand upon satisfaction of this requirement.

Carriger then filed a motion for relief from judgment pursuant to Rule 60(b)(2) and (6), which was denied on the merits on June 5, 1990. Carriger appealed the denial of relief, and the state of Arizona appealed

                because it believed Carriger's motion was untimely and should have been procedurally barred.   Both parties also filed motions for reconsideration with the district court.   We consolidated the appeals with Carriger's earlier appeal concerning the grant of summary judgment.   On July 25, 1991, the district court agreed with Arizona and denied Carriger's Rule 60(b) claim because it was untimely and without merit.   Carriger appealed this order and asked for consolidation of his appeals.   He also filed a second writ of habeas corpus directly with the Ninth Circuit, raising claims identical to those denied in his first writ
                
JURISDICTION

The district court had jurisdiction over the first of Carriger's writs, and we therefore have jurisdiction to consider his timely appeal. (No. 87-1549). Once Carriger filed his notice of appeal, however, the district court lost jurisdiction over Carriger's habeas petition. Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir.1979). We review de novo the district court's assertion of jurisdiction for Rule 60(b) motions. United States v. Kersting, 891 F.2d 1407, 1410 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 49, 112 L.Ed.2d 25 (1990).

Carriger was informed of his jurisdictional problem, but declined to follow the procedure we outlined to revest the district court with jurisdiction. Carriger should have filed a motion asking the district court to indicate its willingness to entertain a Rule 60(b) motion. Following a ruling on this request, Carriger could have renewed his motion for remand to revest the district court with jurisdiction to consider his Rule 60(b) motion. Carriger failed to follow this procedure. The district court lacked jurisdiction to hear Carriger's Rule 60(b) motion. We therefore vacate the district court's June 5, 1990, and July 25, 1991 orders. (Nos. 90-16013, 90-16016, and 91-16334).

We next consider Carriger's second habeas corpus petition, which was addressed directly to the original panel of Ninth Circuit judges. (No. 91-70614). A habeas petition may only be made to the Supreme Court, the district court, a single circuit judge, or a Supreme Court justice. 28 U.S.C. § 2254(a). The panel did not have jurisdiction to consider the second writ. We dismiss it without prejudice.

DISCUSSION

We now consider the merits of Carriger's appeal. A grant of summary judgment denying a writ of habeas corpus is reviewed de novo. Richmond v. Lewis, 948 F.2d 1473, 1479 (9th Cir.1990) (amended opinion), cert. granted, --- U.S. ----, 112 S.Ct. 1557, 118 L.Ed.2d 206 (1992). In his first writ, Carriger alleges that eight constitutional defects caused his conviction and death sentence.

Carriger first argues that he was denied his compulsory process rights because the state trial court limited his attorney's cross-examination of the prosecution's key witness, Robert Dunbar. Dunbar testified that Carriger robbed and murdered Shaw. During direct examination, Dunbar admitted that he had six prior felony convictions and that he had been granted immunity in exchange for his testimony. Carriger's counsel conducted an extensive cross-examination, attempting to discredit Dunbar's testimony and to prove that Dunbar, not Carriger, had robbed and killed Shaw. Cross-examination was not limited in any way.

The defense later recalled Dunbar. After several questions concerning the scope of Dunbar's relationship with Carriger, the prosecutor objected to further questions about Dunbar's job history. At sidebar, Carriger's counsel admitted that his questions had been asked or could have been asked during the prior cross-examination. When the trial court ruled that counsel was barred from questions in this area, Carriger's counsel stated that he had no further questions.

A trial judge retains "wide latitude" to limit defense counsel's questioning of a witness without violating a defendant's Sixth Amendment rights. Michigan v. Lucas, --- U.S. ----, ----, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). The defendant's right to present evidence is not absolute; he must comply with established rules of evidence and procedure. Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). The court has "considerable discretion to limit cross-examination in order to prevent delay or avoid cumulative evidence." United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988). This standard, like other procedural and evidentiary standards, applies equally in capital and non-capital cases.

The trial judge ruled that Dunbar could not be questioned on matters covered during the previous cross-examination. The trial court had the discretion to limit these additional questions. Carriger had a full and fair opportunity for exhaustive cross-examination. We find no Sixth Amendment violation. See id.

Carriger also claims that he was denied effective assistance of counsel because his attorney failed to: 1) conduct a proper pretrial investigation; 2) spend sufficient time with Carriger to prepare a defense; 3) obtain damaging Arizona Department of Corrections files on Dunbar; 4) make several evidentiary objections; 5) submit voir dire questions; 6) offer jury instructions; 7) properly treat the case as a death penalty case; 8) advise Carriger of his right to testify; and 9) determine when felony convictions be used for impeachment.

On direct appeal, Carriger's counsel only claimed that trial counsel had...

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