Demarest v. Price, 95-1535

• Decision Date: 03 December 1997
• Docket Number: No. 95-1535,95-1535
• Citation: 130 F.3d 922
• Parties: 98 CJ C.A.R. 398 Richard S. DEMAREST, Petitioner-Appellee, v. William PRICE; Gale Norton, Attorney General of the State of Colorado, Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 922

130 F.3d 922

98 CJ C.A.R. 398

Richard S. DEMAREST, Petitioner-Appellee, v. William PRICE; Gale Norton, Attorney General of the State

of Colorado, Respondents-Appellants.

No. 95-1535.

United States Court of Appeals, Tenth Circuit.

Dec. 3, 1997.

Robert Mark Russel, First Assistant Attorney General, Chief, Criminal Enforcement Section, Gale A. Norton, Colorado Attorney General, with him on the brief, Denver, Colorado, for Respondents-Appellants

Vicki Mandell-King; Assistant Public Defender, Chief, Appellate Division; Michael G. Katz, Federal Public Defender, with her on the brief, Denver, Colorado, for Petitioner-Appellee

Before HENRY, MURPHY and RONEY ^*, Circuit Judges.

HENRY, Circuit Judge.

Respondents William Price and Gale Norton ¹ appeal the district court's order granting Richard Demarest's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and vacating his conviction for first degree murder in Jefferson County, Colorado. See Demarest v. Price, 905 F.Supp. 1432 (D.Colo.1995). The district court concluded that by failing to adequately investigate the case, interview witnesses, and present medical evidence, Mr. Demarest's attorney in the Jefferson County murder trial deprived him of his Sixth Amendment right to effective assistance of counsel. See id. at 1446-54. Respondents argue on appeal that Mr. Demarest may not seek redress in federal court because he did not exhaust his state court remedies in that he did not fairly present important evidence regarding his trial counsel's performance to the Colorado state courts.

Initially, we conclude that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), that amend the habeas corpus statutes should not be applied to this case because Mr. Demarest's petition was filed before the AEDPA's effective date. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Then, applying the pre-AEDPA habeas corpus provisions, we hold that Mr. Demarest did not exhaust his state remedies. We therefore vacate the district court's order granting Mr. Demarest's petition and remand the case to the district court for several determinations.

On remand, we direct the district court to first determine whether Mr. Demarest's ineffective assistance of counsel claim, based on the new evidence presented at the federal evidentiary hearing, would now be procedurally barred under Colorado law. In the event that the district court concludes that Mr. Demarest's claim would not now be procedurally barred, we hold, it should dismiss the claim without prejudice so that it may now be adjudicated in the Colorado courts. Alternatively, if the district court concludes that Mr. Demarest's claim would now be procedurally barred in the Colorado courts, it should then determine whether Mr. Demarest can establish either that there was cause for the default and prejudice resulting from the violation of federal law, or that failure to consider his claim on the merits would result in a fundamental miscarriage of justice. In the event that Mr. Demarest establishes either cause and prejudice or a fundamental miscarriage of justice, the court should proceed to the merits.

I. BACKGROUND

Early in the afternoon of February 9, 1981, petitioner Demarest called the Jefferson County Sheriff's Department from a neighbor's home and reported that he had just discovered the body of his friend Ronald Hyams in the house that the two shared in Evergreen, Colorado. "In a panicked, sobbing voice," Demarest, 905 F.Supp. at 1436, Mr. Demarest told the emergency operator that it appeared that Mr. Hyams had been murdered. After placing the call, Mr. Demarest ran back to his house and sat down under a tree in the front yard next to a gravel driveway, where a neighbor waited with him for law enforcement officials to arrive.

Approximately ten minutes after Mr. Demarest's call, Jefferson County deputy sheriffs discovered Mr. Hyams's body in a downstairs bedroom. Mr. Hyams's head was wrapped in a bathrobe and there were puncture wounds around his neck and collarbone. The pathologist who conducted the autopsy testified that Mr. Hyams died from "the combined effects of trauma to the head[,] ... blood loss from the stab wound in the left neck[,] and from the complication of strangulation of the neck." Id. (quoting Rec. vol. V, Trial Tr. of State v. Demarest, No. 81 CR 259, Jefferson County District Court, at 638).

During the period immediately after Mr. Hyams's murder, Mr. Demarest experienced substantial emotional trauma and required psychiatric treatment. On the day of the murder, a neighbor testified, Mr. Demarest was distraught and in shock. As a result, medical personnel took him to a local emergency room. Carol Lee Held, Mr. Demarest's other housemate, took him home later that day, but she observed that Mr. Demarest soon grew unresponsive and appeared to fall into a trance. Ms. Held called the sheriff's office for assistance, and when the deputies arrived, they found Mr. Demarest "lying on the floor in a fetal position, tightening his muscles, and clenching his fists." Id. at 1436 (citing Trial Tr. of State v. Demarest, No. 81 CR 259, Jefferson County District Court, at 289-90). The deputies took Mr. Demarest back to the local medical center, and he was then transferred to the psychiatric ward of another hospital. A psychiatrist diagnosed him as suffering from adult situational reaction caused by acute stress and treated him with a variety of drugs. Mr. Demarest was released from the psychiatric ward on February 11, 1981.

During an interrogation at the sheriff's office on February 12, 1981, Mr. Demarest suffered another breakdown. When shown a picture of Mr. Hyams, he began shaking, fell on the floor, and curled into a fetal position. Mr. Demarest was taken back to the hospital's psychiatric ward, where he remained until February 23, 1981. Another psychiatrist concluded that he suffered from an "adult situational disorder with withdrawal[,]"see id. at 1437, and treated him with prescription drugs.

On the three separate occasions shortly after the murder when deputies questioned him, Mr. Demarest denied any involvement in Mr. Hyams's murder. He reported that on the morning of the murder, he had borrowed Mr. Hyams's car, stopped at a McDonald's restaurant to drink coffee, and had then driven to Mr. Hyams's dentist's office to pick him up after an appointment. When he arrived at the dentist's office, he learned that Mr. Hyams had missed the appointment. According to Mr. Demarest, he then returned home and discovered the body.

During the questioning, deputies observed that Mr. Demarest had scratches on the back of his hands and face. When asked about the scratches, Mr. Demarest said that he had pounded his fists into the gravel driveway while waiting for emergency personnel after discovering Mr. Hyams's body. As to his face, Mr. Demarest said that he had scratched it at the medical center on the afternoon of the murder.

In March 1981, the Jefferson County District Attorney charged Mr. Demarest with the murder of Ronald Hyams. The Jefferson County District Court appointed a state public defender as Mr. Demarest's counsel. The public defender represented Mr. Demarest until June 29, 1981, when Mr. Demarest retained William A. Cohan, who served as his defense attorney throughout the trial.

The Jefferson County District Court conducted Mr. Demarest's trial in October 1981. The prosecution contended that the following events occurred on the morning of February 9, 1981: Mr. Demarest struck Mr. Hyams's head from behind and bludgeoned his face; Mr. Hyams struggled and scratched Mr. Demarest's hands and face; Mr. Demarest eventually managed to subdue Mr. Hyams; and, after Mr. Hyams had passed out, Mr. Demarest deliberated for ten to fifteen minutes and then killed Mr. Hyams by stabbing and strangling him. Next, according to the prosecution's theory, Mr. Demarest drove to the dentist's office to establish an alibi. Mr. Demarest's apparent shock upon discovering Mr. Hyams's body, the prosecution suggested, was a contrived reaction intended to divert suspicion.

At trial, the district attorney offered scientific and forensic evidence to support this theory. Dick Hopkins, a detective with the Arapaho County Sheriff's Department whom the court allowed to testify as an expert in blood-spatter analysis, testified that the pattern of blood stains at the murder scene indicated that Mr. Hyams was murdered by a tall, strong right-handed man. Detective Hopkins also testified that the scratches on Mr. Demarest's hands appeared to come from fingernails and that the blood stains at the murder scene indicated that about ten to fifteen minutes had elapsed between the initial blows to Mr. Hyams's head and the strangulation and stabbing.

Nevertheless some of the prosecution's own witnesses revealed flaws in the state's theory. A hair and fiber expert testified that facial hair discovered underneath Mr Hyams's fingernails could not have come from Mr. Demarest. A blood expert testified that there was no evidence that blood had been transferred between Mr. Hyams and Mr. Demarest.

The district attorney also introduced testimony about the scratches on Mr. Demarest's hands and face. A workman and a neighbor who observed Mr. Demarest as he waited by the gravel driveway for emergency personnel to arrive after calling the sheriff's department both testified that they did not observe Mr. Demarest hitting his hands on the gravel. Mark Davidson, a volunteer fireman who spoke to Mr. Demarest while he waited outside the house, similarly stated that he did not notice Mr. Demarest hitting his hands on the gravel and would have remembered seeing it. Carol Held, the housemate of Mr. Demarest and Mr. Hyams, testified that when she met Mr. Demarest at the local medical center on the afternoon of February 9, she noticed that his right...