Clark v. Lewis
| Decision Date | 08 October 1993 |
| Docket Number | No. 93-99005,93-99005 |
| Citation | 1 F.3d 814 |
| Parties | James Dean CLARK, Petitioner-Appellant, v. Samuel A. LEWIS, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy J. Foley, San Francisco, CA, for petitioner-appellant.
Bruce Ferg, Asst. Atty. Gen., Phoenix, AZ, for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before: FARRIS, BRUNETTI and THOMPSON, Circuit Judges.
The opinion filed April 13, 1993 is withdrawn. It is replaced with an order for publication filed contemporaneously herewith.
ORDER
The district court dismissed James Dean Clark's second federal habeas corpus petition challenging his state convictions on four counts of first-degree murder and sentence of death. The district court had jurisdiction under 28 U.S.C. Secs. 2241(a) and 2254. It refused to issue a certificate of probable cause to permit Clark to appeal to this court. See 28 U.S.C. Sec. 2253; Fed.R.App.P. 22(b).
We have jurisdiction to determine whether to issue a certificate of probable cause, id., and to entertain Clark's application for such a certificate on its merits. Burwell v. Teets, 350 U.S. 808, 809, 76 S.Ct. 98, 98, 100 L.Ed. 726 (1955); Rogers v. Teets, 350 U.S. 809, 76 S.Ct. 98, 100 L.Ed. 726 (1955). We also have authority to "lay down a procedure ... to follow for the entertainment of such applications on their merits." In re Application of Burwell, 350 U.S. 521, 522, 76 S.Ct. 539, 540, 100 L.Ed. 666 (1956).
We have adopted rules for state habeas corpus death penalty cases. See generally 9th Cir.R. 22-1 et seq. Under these rules, if the panel to which the case has been assigned votes unanimously to deny an application for a certificate of probable cause, or if a majority of the panel votes to deny an accompanying motion for a stay of execution, "it shall enter an order setting forth the issues presented and the reasons" for doing so. 9th Cir.R. 22-4(d)(3) & (4) (June, 1993).
The panel to which this case has been assigned has considered Clark's application for a certificate of probable cause on the merits. For the reasons hereafter stated, the panel has voted unanimously to deny his application. Clark's application for a stay of execution is denied and his appeal is dismissed. 1
James Dean Clark was convicted of four counts of first-degree murder for murdering four persons on December 4, 1977. For a year prior to the murders Clark worked as a wrangler at the Cochise Lodge and Guest Ranch, a dude ranch owned by Charles and Mildred Thumm and located near Elfrida, a rural town in Cochise County, Arizona.
On December 3, 1977, Clark had dinner at the lodge with Mr. and Mrs. Rush Allen, guests at the lodge, and with George Martin and Gerry McFerron, wranglers at the ranch. After dinner, the Allens went to Tombstone with Martin. McFerron and Clark called Janie Hendrickson, who met them at the lodge. The three of them went to the Elfrida tavern and then to a disco lounge in Douglas. Hendrickson and Clark went into the disco lounge. McFerron had drunk too much. He vomited and stayed outside.
The three returned to the lodge between 1:00 and 1:30 a.m., and Hendrickson left in her car. Clark did not appear to be intoxicated. During the evening, McFerron told Hendrickson that Clark was dangerous when he was drunk. Clark overheard the statement, but he simply chuckled and made no comment. Clark had been playing with a .357 Magnum pistol at one point during the evening.
After McFerron went to bed, Clark entered the wranglers' quarters and stabbed to death Martin, an older wrangler who was passed out in his bed. Clark then fatally shot McFerron as the young wrangler slept in his sleeping bag. Clark picked up a .357 Magnum from McFerron's room, walked from the wranglers' quarters to the Thumms' house and shot to death both Charles and Mildred Thumm.
A pathologist testified that Martin died of seven stab wounds to the chest, which penetrated the heart and lungs. McFerron died of three gunshot wounds to the head, one in the temple, one in the ear, and one to the top of the head. Charles Thumm was shot three times, once in the chest, once in the left shoulder and once, from a distance of three to four inches, in the head. Mildred Thumm died of a gunshot wound near the left earlobe, fired from a distance of approximately two to six inches.
Clark slashed all the tires on the vehicles at the ranch and then fled the area in the Thumms' station wagon. Clark took with him rings and credit cards belonging to the Thumms, guns, including those used in the murders, and a saddle. Clark drove to El Paso, Texas, where he sold Mildred Thumm's engagement and dinner rings to a jeweler. Clark was apprehended a few days later in El Paso, Texas.
Clark volunteered the statement to the El Paso police that he had been given permission to use the car and some credit cards to pick up his girlfriend and take her back to Arizona to get married. A spent lead bullet, which appeared to have organic matter on it, was removed from the pocket of a jacket in Clark's hotel room. When accused of killing the Thumms, Martin and McFerron, Clark stated that he might have killed them, but he did not remember.
At the preliminary hearing on December 15, 1977, John Doe, a confidential informant for the Drug Enforcement Agency ("DEA"), testified over the objection of the defense. John Doe wore a ski mask, but removed it briefly during the hearing so that Clark could observe his face. Before the trial, the defense was provided with Doe's true name date of birth, place of residence, and prior criminal record.
Prior to John Doe's testimony, a hearing was held in chambers. The trial court ordered that the record of these proceedings be sealed. John Doe stated his true name and his location in El Paso, Texas. John Doe testified that he felt his life was in danger, and had received threats because he was a paid informant for the DEA. He was therefore allowed to testify as John Doe.
Before the jury, John Doe testified that he had met Clark in the late night hours of December 4, 1977, at a bar in El Paso, Texas and, the next day, at Clark's request, he bought heroin for Clark and sold four guns Clark had in his possession, including a .357 Magnum. John Doe also testified that Clark said he had already killed three people in "Elvira," Arizona. Clark told the primary investigating officer in January 1978 that John Doe committed the murders.
An Arizona jury convicted Clark of four counts of first-degree murder. Following his convictions, a separate non-jury sentencing hearing was held by the trial judge pursuant to Arizona Revised Statute Sec. 13-902. The sentencing judge found three aggravating factors present in the case:
1. Clark created a grave risk of death to a second victim, Mildred Thumm, in shooting Charles Thumm in the hallway of their home, Ariz.Rev.Stat. Sec. 13-902(F)(3);
2. Clark murdered Mildred and Charles Thumm with the expectation of receiving something of pecuniary value--such as the credit cards, jewelry and automobile, Ariz.Rev.Stat. Sec. 13-902(F)(5); and
3. Clark committed the offenses in an especially cruel and depraved manner, Ariz.Rev.Stat. Sec. 13-902(F)(6).
In mitigation, Clark asserted that he was only twenty years old at the time of the crimes, had a poor home life during his formative years, lacked any adult criminal record, suffered emotional problems stemming from his antisocial personality, and had been cooperative with the police. The sentencing judge found the mitigating factors not sufficiently substantial to warrant leniency and sentenced Clark to death on each of the four counts.
Clark filed a direct appeal with the Arizona Supreme Court. That court found that the first aggravating circumstance was not present because Mildred Thumm was actually in another room at the time Charles Thumm was killed and therefore she was not within the zone of danger contemplated by section 13-902(F)(3). State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The court further determined that none of the murders had been committed in an especially cruel manner because there was no evidence that any of the victims had suffered any pain. Id. The court upheld the sentencing judge's findings that the murders were committed for pecuniary gain and in a depraved manner. Id.
After independently reviewing all the evidence, the court concluded that the aggravating circumstances had been established and that the mitigating circumstances were not sufficiently substantial to call for leniency. Id. 616 P.2d at 897. The court also determined that Clark's Sixth Amendment right to confront witnesses had not been violated when the prosecution called the John Doe witness to testify against him. Id. at 891-93.
In August 1987, after pursuing his state court remedies, Clark filed his first petition for a writ of habeas corpus in the United States District Court for the District of Arizona, pursuant to 28 U.S.C. Sec. 2254. His petition was denied by summary judgment and Clark appealed to this court. We issued an opinion in September 1989, holding that Clark was entitled to be resentenced because Arizona's death penalty statute had been held unconstitutional in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). Clark v. Ricketts, 886 F.2d 1152 (9th Cir.1989). Thereafter, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court held Arizona's death penalty statute to be constitutional. We granted rehearing in Clark v. Ricketts, withdrew the original opinion...
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