Carriger v. Lewis

• Decision Date: 04 November 1991
• Docket Number: 90-16016,90-16013,91-16334 and 91-70614,Nos. 87-1549,s. 87-1549
• Citation: 948 F.2d 588
• Parties: Paris 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., Respondent-Appellant. Paris Hoyt CARRIGER, Petitioner-Appellant, v. Samuel A. LEWIS, et al., Respondent-Appellee (Two Cases). Paris Hoyt CARRIGER, Petitioner, v. Samuel A. LEWIS, et al., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 588

948 F.2d 588

Paris 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., Respondent-Appellant.

Paris Hoyt CARRIGER, Petitioner-Appellant, v. Samuel A. LEWIS, et al., Respondent-Appellee (Two Cases).

Paris Hoyt CARRIGER, Petitioner, v. Samuel A. LEWIS, et al., Respondent.

Nos. 87-1549, 90-16013, 90-16016, 91-16334 and 91-70614.

United States Court of Appeals Ninth Circuit.

Argued and Submission Deferred Sept. 6, 1991.

Resubmitted Sept. 16, 1991.

Decided Nov. 4, 1991.

Donald H. Bayles, Jr., Aspey, Watkins & Diesel, Flagstaff, Ariz., for the 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 FARRIS, KOZINSKI and O'SCANNLAIN, Circuit Judges.

KOZINSKI, Circuit Judge.

Paris Hoyt Carriger is to receive the most severe punishment our society can impose. Having exhausted various avenues of relief in state court, he now seeks a federal writ of habeas corpus.

Facts

On March 13, 1978, Robert Shaw's jewelry store was robbed. The robber bound Shaw's hands behind his back and crushed his skull with repeated blows from an iron skillet. Although severely wounded, Shaw survived this onslaught, only to be strangled to death with his own necktie. The perpetrator then departed with the fruits of the crime.

Two days later, Arizona charged Paris Hoyt Carriger with the robbery and the first-degree murder of Robert Shaw. After a two week trial, the jury convicted Carriger on both charges. The judge sentenced Carriger to 99-100 years' imprisonment for the robbery and to 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) (Carriger I ). Carriger then filed a petition for post-conviction relief pursuant to Az.R.Crim.P. 32. The Maricopa County Superior Court denied relief, but the Arizona Supreme Court held that Carriger was entitled to a new sentencing hearing on the ground that Carriger's counsel had rendered inadequate assistance at sentencing. It also reversed as premature the superior court's dismissal of Carriger's other claims, holding that the court should "hear and consider such other matters properly raised in defendant's petition." State v. Carriger, 132 Ariz. 301, 306, 645 P.2d 816, 820 (1982) (Carriger II ).

On remand the superior court reimposed the original sentence. It also conducted a hearing on Carriger's other claims and denied all relief. Carriger then took his case to the Arizona Supreme Court for the third time. 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) (Carriger III ). With one Justice dissenting, the court affirmed Carriger's conviction and sentence and dismissed his Rule 32 petition.

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 separate claims. In late 1986, the district court granted Arizona's motion for summary judgment on all counts. A few months later, the court denied Carriger's motion to vacate its summary judgment order. Carriger timely appealed.

At Carriger's request, we stayed his appeal pending the resolution of his second Rule 32 petition in the Arizona state courts. The state superior court eventually dismissed Carriger's second petition, in which Carriger asserted that he had uncovered new exculpatory evidence, and the Arizona Supreme Court denied review. Carriger then asked us to remand to the district court so he could file a Rule 60(b) motion for relief from judgment on the ground of newly-discovered evidence. We denied Carriger's remand motion; consistent with our practice, we requested that Carriger 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. Carriger was granted leave to renew his motion in the event the district court were to indicate its willingness.

Carriger then returned to the district court, but did not follow the procedure outlined in our order. Instead, he filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(2) and (6), which was denied on the merits on June 5, 1990. Both Carriger and Arizona appealed Carriger because he was denied relief and Arizona because it believed Carriger's motion should have been dismissed as untimely. At about the same time, both parties filed motions for reconsideration. Before the district court could reconsider, we consolidated Carriger's and Arizona's appeals from the June 5 order with Carriger's earlier appeal from the grant of summary judgment. On July 25, 1991, the district court entered a new order, this time denying Carriger's Rule 60(b) motion as both untimely and without merit. Carriger appealed this new order and asked that it be consolidated with the other appeals. He also filed a second petition for a writ of habeas corpus directly with us, raising claims which, he notes, "are all included in the pending appeals."

Standard of Review

We review the district court's grant of summary judgment denying a petition for a writ of habeas corpus de novo. Richmond v. Lewis, 948 F.2d 1473, 1479 (9th Cir.1991). We also review the district court's assertion of jurisdiction over a Rule 60(b) motion de novo. United States v. Kersting, 891 F.2d 1407, 1410 (9th Cir.1989).

Jurisdiction

The district court had jurisdiction over Carriger's first habeas petition and Carriger timely appealed the court's summary judgment order and its refusal to vacate the summary judgment order. We therefore have jurisdiction over the claims raised in that appeal (No. 87-1549). Once Carriger filed the 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 informed Carriger of this jurisdictional hurdle and explained the procedure he was required to follow to revest the district court with jurisdiction. Because Carriger did not follow that procedure, the district court lacked jurisdiction to consider Carriger's subsequent Rule 60(b) motions. The district court's June 5, 1990, and July 25, 1991, orders are therefore vacated (Nos. 90-16013, 90-16016, 91-16334).

The remaining action is Carriger's second petition for a writ of habeas corpus (No. 91-70614). The petition was addressed directly to this panel. However, a habeas petition may not be made to a panel of circuit judges, but must be made to a specific circuit judge. 28 U.S.C. § 2254(a). ¹ Because we do not have jurisdiction to consider Carriger's second habeas petition, we dismiss it without prejudice. ²

Discussion

Only Carriger's first appeal is before us. In that appeal, Carriger asserts eight defects in the trial and sentencing hearing that led to his death sentence. We address each in turn. ³

I

A. Carriger first argues that he was denied the right to compulsory process because his attorney was limited in his examination of the prosecution's key witness, Robert Dunbar. Dunbar, the only person who could identify Carriger as the man who robbed and murdered Robert Shaw, was called to testify by the prosecution. Dunbar admitted during direct examination that he made fabrications relating to this case and that he had six prior felony convictions. He also explained that he was motivated to testify against Carriger because he had been granted immunity in exchange for his testimony. During cross-examination, Carriger's counsel questioned Dunbar extensively about various subjects in an attempt to impeach Dunbar and to prove that Dunbar, not Carriger, robbed and killed Shaw. This cross-examination was not limited in any way.

After the prosecution rested, Carriger's counsel called Dunbar to testify again. Counsel was allowed to question Dunbar on several points but, shortly into the examination, the prosecutor objected to counsel's questioning as repetitive. At sidebar, defense counsel admitted that the questions he was now asking either were asked or could have been asked when he cross-examined Dunbar. The trial judge then ruled that counsel could not question Dunbar on matters that could have been raised during cross-examination. In light of that ruling, counsel represented he had no further questions for Dunbar.

A trial judge retains "wide latitude" to limit a defense counsel's questioning of a witness without infringing upon 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 trial judge's ruling here is consistent with the normal practice in both federal and state courts, which seeks to ensure the orderly presentation of facts and arguments at trial by assigning different functions to direct and cross examination. Direct examination, even of a previously called witness, is normally used to introduce evidence on new matters, whereas cross is normally used to probe for weaknesses in the witness's immediately preceding direct testimony. The trial judge's ruling reflected this practice; it could not have come as a surprise to Carriger's counsel. Because Carriger had a full and fair opportunity to question Dunbar, we cannot say that he was denied the right to compulsory process.

B. Carriger also claims that he was denied the effective assistance of counsel at trial. He points to a large number of alleged flaws in his counsel's performance both before and during trial. According to Carriger, his lawyer allegedly failed to: (1) conduct a proper...