Duhaime v. Ducharme, PETITIONER-APPELLAN

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Goodwin
• Citation: 200 F.3d 597
• Parties: (9th Cir. 2000) DAVID DUHAIME,KENNETH DUCHARME,
• Docket Number: V,No. 98-36073,RESPONDENT-APPELLEE,PETITIONER-APPELLAN,98-36073
• Decision Date: 10 January 2000

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200 F.3d 597 (9th Cir. 2000) DAVID DUHAIME, PETITIONER-APPELLANT,
V.
KENNETH DUCHARME, RESPONDENT-APPELLEE. No. 98-36073 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 1999
October 12, 1999
Amended January 10, 2000. Petition for rehearing denied.

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Michael Kahrs, Seattle, Washington, for the petitioner-appellant.

Donna H. Mullen, Assistant Attorney General, Olympia, Washington, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding D.C. No. CV 97-00641-JCC Seattle, Washington

Before: Alfred T. Goodwin and Mary M. Schroeder, Circuit Judges, and William W Schwarzer,¹ Senior District Judge.

ORDER

The opinion filed October 12, 1999, slip op. 12555, is amended as follows:

Slip op. at 12561, heading [1]: Delete entire paragraph beginning with "This court, however, . . . ." and replace with:

This court, however, has held that, because of the 1996 AEDPA amendments, it can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal Constitutional issue. Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997). Rather, the writ will issue only when the state court decision is "contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States." 28 U.S.C. S 2254(d). This does not mean that Ninth Circuit caselaw is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an "unreasonable application " of Supreme Court law, and also may help us determine what law is "clearly established." See MacFarlane v. Walter, 179 F.3d 1131, 1139 (9th Cir. 1999) (looking to Ninth Circuit caselaw to confirm that Supreme Court case clearly establishes a legal rule); citing O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) (holding that "to the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue"). Although our cases do not address in detail the exact arguments posed by Duhaime, they implicitly reject the argument that S 2254's rule directing us to look to Supreme Court law when deciding habeas petitions is unconstitutional under stare decisis principles and Article III, and that such an application runs counter to congressional intent and would disrupt judicial efficiency See Moore, 108 F.3d 261; Furman v. Wood, 190 F.3d 1002 (9th Cir. 1999).

Slip op. 12565, heading [4]: Delete entire paragraph beginning with "However, because the Court . . . . " and replace with the following:

Although the Ninth Circuit has interpreted the reasoning in Solem (that life without parole is a much more severe penalty than life with the possibility of parole) to be applicable to Jackson, our reasoning in that case involved a substantial extension of Supreme Court precedent. First, our decision in Robtoy relied solely on a Ninth Circuit case for the proposition that Jackson was not limited to the death penalty context. See Robtoy, 871 F.2d at 1478. This extension was clearly a new rule, particularly in light of the fact that Jackson itself did not strike down the life without parole provisions of the federal kidnapping statute. Jackson, 390 U.S. at 585-86. Second, we extended Solem, which specifically limited its holding to the circumstances before it and the Eighth Amendment. See 463 U.S. 277, 297 n.24 (stating that Court does not

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raise general validity of life sentences without parole, but only considers issue before it, which is "whether, in the circumstances of [the] case and in light of the constitutional principal of proportionality, the sentence imposed on [the] petitioner violates the Eighth Amendment"). In spite of this limitation, we applied Solem to a case involving penalties for the exercise of constitutional rights generally. While we do not mean to suggest that the decision in Robtoy was erroneous, that decision is not enough, in itself, to establish that a contrary rule would constitute an "unreasonable application of clearly established federal law as determined by the Supreme Court."

With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judge Schroeder has voted to deny the petition for rehearing en banc, and Judges Goodwin and Schwarzer recommended denial.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.

OPINION

Goodwin, Circuit Judge.

Washington state prisoner David Duhaime appeals the district court's denial of his 28 U.S.C. S 2254 habeas petition, challenging his sentence of life imprisonment without the possibility of parole imposed pursuant to the former aggravated murder death penalty law RCW S 10.94.010 et seq.

I. FACTS & PROCEDURAL HISTORY

In 1979, David Duhaime was convicted of kidnapping, rape, premeditated murder, and robbery in the first degree while armed with a deadly weapon and firearm, as proscribed by RCW SS 9A.40.020, 9.79.170, 9A.32.030(1)(a) & 9A.56.200 respectively. Duhaime received a maximum term of fifty years on each of the kidnapping and robbery convictions, life imprisonment with the possibility of parole on the rape conviction, and life imprisonment without the possibility of parole on the murder conviction. The kidnapping and robbery sentences were imposed concurrently, but were to run consecutively to the rape and murder life terms.

On February 15, 1980, Duhaime filed an appeal with the Washington Court of Appeals. While the appeal was pending, Duhaime moved to transfer his case to the Washington Supreme Court, on the ground that his case presented two issues already pending in the state supreme court in State v. Grisby, No. 45750-6. Although the court of appeals denied that motion, it did stay Duhaime's case pending the resolution of State v. Frampton, 95 Wash. 2d 469 (1981). After the supreme court decided Frampton, the court of appeals denied his petition on May 6, 1982.

On April 21, 1997, Duhaime filed a habeas petition, presenting the following ground for relief: that applying the former aggravated murder death penalty statute violated Duhaime's right to a jury trial and equal protection because it unfairly enticed a defendant to plead guilty (by offering a maximum sentence of life with the possibility of parole for a guilty plea), and penalized a defendant who was convicted after pleading not guilty (by allowing for a sentence of life without the possibility of parole).² Duhaime moved for summary

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judgment, but the district denied that motion and Duhaime's petition with prejudice.

On August 21, 1998, Duhaime appealed to this court from the district court's judgment,³ and on October 22, 1998, the district court granted Duhaime's request for a certificate of appealability on the following issues: (1) the proper scope of review of a petition for habeas corpus under 28 U.S.C. S 2254(d)(1); and (2) whether, under that standard,...