Deutscher v. Whitley

• Decision Date: 31 August 1989
• Docket Number: Nos. 88-2552,88-2579,s. 88-2552
• Citation: 884 F.2d 1152
• Parties: Henry DEUTSCHER, Petitioner/Appellant/Cross-Appellee, v. Harol WHITLEY, Warden of the Nevada State Prison, and Brian McKay, Attorney General of the State of Nevada, Respondents/Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1152

884 F.2d 1152

Henry DEUTSCHER, Petitioner/Appellant/Cross-Appellee, v. Harol WHITLEY, Warden of the Nevada State Prison, and Brian

McKay, Attorney General of the State of Nevada,

Respondents/Appellees/Cross-Appellants.

Nos. 88-2552, 88-2579.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1989.

Decided Aug. 31, 1989.

David J. Burman and Stephan R. Illa, Perkins Coie, Seattle, Wash., and Thomas E. Perkins, Carson City, Nev., for petitioner/appellant/cross-appellee.

Brian McKay, Atty. Gen., and David F. Sarnowski, Supervising Deputy Atty. Gen Appeal from the United States District Court for the District of Nevada.

Carson City, Nev., for respondents/appellees/cross-appellants.

Before SKOPIL, FARRIS and HALL, Circuit Judges.

FARRIS, Circuit Judge:

Henry Deutscher appeals the district court's dismissal of his petition for a writ of habeas corpus. Deutscher sought habeas corpus relief from a Nevada court's sentence of death. Nevada authorities appeal the district court's refusal to hold a hearing on whether Deutscher's petition was an abuse of the writ of habeas corpus. We reverse the district court's dismissal of Deutscher's petition and remand with instructions to grant the writ unless Deutscher is resentenced within a reasonable time.

FACTS

In 1977, a Nevada jury convicted Deutscher of first degree murder and of robbery without the use of a weapon. After a separate hearing, the same jury sentenced Deutscher to die. Witnesses at trial testified that the victim had been strangled, beaten, and bitten, prior to suffering a fatal skull fracture.

Two potential jurors were excluded from Deutscher's jury because of their views on the death penalty. Both jurors said they would not impose the death penalty under any circumstances.

During the penalty phase of the trial, the court instructed the jury to impose the death penalty unless the mitigating circumstances outweighed the aggravating circumstances. The court instructed the jury as to three possible aggravating factors: (1) prior conviction of a felony involving use or threat of violence; (2) murder during an attempted sexual assault; and (3) murder involving "torture, depravity of mind, or the mutilation of the victim." The jury found all three of these aggravating factors.

During both the guilt phase and the penalty phase, Deutscher was represented by Herbert Ahlswede. Ahlswede did not call any witnesses at the penalty phase hearing. Although Ahlswede made a tactical decision not to pursue an insanity defense during the guilt phase, he did not consider using psychological evidence during the penalty phase. Nor did Ahlswede investigate Deutscher's past psychiatric treatment or family background. Investigation would have revealed that Deutscher was born substantially premature, that he had been diagnosed as mentally ill and treated for mental illness, and that he had sought, but was not given, psychiatric care for uncontrollable violent outbursts. Dr. O'Gorman, a psychiatrist who examined Deutscher near the time of the murder, testified during a state post-conviction hearing that Deutscher's history was consistent with a mental disorder characterized by episodes of uncontrollable violence.

Ahlswede did present a closing argument at the penalty phase hearing but referred to only one mitigating factor: that Deutscher killed while under the influence of an extreme mental disturbance. Ahlswede argued that such a brutal murder could only have been the product of a diseased mind.

The Nevada Supreme Court affirmed Deutscher's conviction and sentence. Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979). Ahlswede filed a habeas corpus petition on Deutscher's behalf in the United States District Court for the District of Nevada. The court directed Deutscher to submit four unexhausted issues to the state courts. Following exhaustion of those issues, the district court dismissed the petition.

Deutscher appealed to this court, and present counsel was substituted for Ahlswede. Present counsel determined that a number of federal issues were not presented by Ahlswede during post-conviction proceedings and asked us to remand the case to state court to allow the new issues to be raised. We denied remand and affirmed dismissal of the petition. Ahlswede v. Wolff, 720 F.2d 1108 (9th Cir.1983), cert Deutscher, through present counsel, then litigated his additional claims in state court. The state trial court denied relief, and the Nevada Supreme Court affirmed. Deutscher v. Warden, Nevada State Prison, 102 Nev. 388, 724 P.2d 213 (1986). The Nevada court held on the merits that Deutscher was not deprived of effective assistance of counsel. Id., 724 P.2d at 214. The court held that Deutscher's other assignments of error were barred by procedural default. The court held that Deutscher could not show good cause for failing to raise his claims within one year of the resolution of his direct appeal and failing to raise his claims in his first petition for post-conviction relief. Id. (citing Nev.Rev.Stat. Secs. 177.315(3) and 177.375(2)).

denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 155 (1984).

Deutscher again petitioned for habeas corpus. The petition set forth the following claims:

1. Deutscher was deprived of effective assistance of counsel.

2. Deutscher was sentenced to death without a finding of intent to commit murder.

3. The prosecutor's argument was improper.

4. Deutscher was sentenced to death based on the "torture, depravity of mind, or mutilation" aggravating circumstance.

5. The state used a concurrent felony both to support a felony murder conviction and as an aggravating circumstance.

6. The trial court failed to instruct the jury that the prosecution must prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances.

7. Nevada improperly discriminates in imposing the death penalty.

8. Prospective jurors were improperly excluded.

9. The Nevada Supreme Court violated due process by failing to conduct a proper proportionality review.

10. Prejudicial evidence of prior bad acts was improperly admitted.

The United States District Court held that Deutscher was barred by unexcused procedural default from raising counts two, three, five, six, seven, nine, and ten. Deutscher v. Whitley, 663 F.Supp. 793, 800-01 (D.Nev.), reconsid. denied, 671 F.Supp. 1264, 1267 (D.Nev.1987). The court rejected counts one, four, and eight on the merits. Deutscher v. Whitley, 682 F.Supp. 1098 (D.Nev.1988).

I. STANDARD OF REVIEW

We review de novo a district court's grant or denial of habeas corpus relief. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). We review for abuse of discretion the district court's decision not to dismiss the petition as an abuse of the writ. See Harris v. Pulley, 852 F.2d 1546, 1561 (9th Cir.1988). A state trial court's determination of juror bias is presumed correct under 28 U.S.C. Sec. 2254(d). Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). All other issues presented by this appeal are issues of law or mixed legal-factual issues. We review these issues de novo. See United States v. McConney, 728 F.2d 1195, 1200-1205 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

II. ABUSE OF THE WRIT

The state contends that the district court erred by failing to require Deutscher to prove in an evidentiary hearing that he had not abused the writ by bringing a successive habeas corpus petition. 28 U.S.C. Sec. 2254, Rule 9(b) provides that:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted abuse of the writ.

In Harris v. Pulley, we set forth a three-part test for determining whether a successive petition is an abuse of the writ under rule 9(b) Previously unadjudicated claims must be decided on the merits unless (1) the petitioner has made a conscious decision deliberately to withhold them, (2) is pursuing "needless piecemeal litigation," or (3) has raised the claims only to "vex, harass, or delay."

852 F.2d at 1572 (quoting Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985)). In Harris, previous counsel failed to make a claim, not for any tactical reason, but "merely because he missed it." 852 F.2d at 1572. We held that because counsel had not made a conscious decision to withhold claims, engage in piecemeal litigation, vex, harass, or delay, the successive petition was not an abuse of the writ. Deutscher's previous counsel similarly made no conscious decision to withhold claims. The claims simply did not occur to counsel. The district court correctly held that Deutscher's petition was not an abuse of the writ.

III. PROCEDURAL DEFAULT

The district court held that counts two, three, five, six, seven, nine, and ten were barred by procedural default. Deutscher claims this holding was error. The state argues that all of Deutscher's claims should have been rejected because of Deutscher's procedural default in failing to raise the claims in the first state post-conviction proceeding, see Nev.Rev.Stat. 177.315(3), and in failing to file his petition for state post-conviction relief within one year of final resolution of his direct appeal. See Nev.Rev.Stat. 177.375(2).

A state prisoner barred by procedural default from litigating a claim in state court may not litigate that claim in a habeas corpus proceeding unless he can show cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1563, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)).

Whether there is cause for...