Gerlaugh v. Lewis, CIV-85-1647-PHX-RGS.

Citation898 F. Supp. 1388
Decision Date10 July 1995
Docket NumberNo. CIV-85-1647-PHX-RGS.,CIV-85-1647-PHX-RGS.
PartiesDarrick Leonard GERLAUGH, Petitioner, v. Samuel LEWIS, et al., Respondents.
CourtU.S. District Court — District of Arizona







Martin Lieberman, Phoenix, AZ, for petitioner.

Crane McClennan, Arizona Attorney General's Office, Criminal Appeals Section, Phoenix, AZ, for respondent.


STRAND, District Judge.

This matter is before the Court on Respondents' motion for summary judgment. The underlying action is a petition for writ of habeas corpus filed by Darrick Leonard Gerlaugh hereinafter Petitioner in which he contends that he is imprisoned and sentenced to death in violation of the Constitution of the United States.

Petitioner's amended petition filed on July 5, 1988, contains fifty claims for relief. Nine claims, 1-6, 8, 9 and 39, relate to the guilt phase of Petitioner's trial. Seven claims allege error with respect to Petitioner's direct appeal or state post-conviction relief proceedings. The remainder of Petitioner's claims involve challenges to his death sentence.


On February 6, 1980, a Maricopa County grand jury indicted Petitioner for armed robbery, A.R.S. ž 13-1904; kidnapping, A.R.S. ž 13-1304; and first degree murder, A.R.S. ž 13-1105. Petitioner's jury trial commenced on December 15, 1980. On December 19, 1980, after a four day trial, a jury convicted Petitioner on all counts presented in the indictment. On February 4, 1981, the trial court conducted a presentence hearing, and on February 11, 1981, the trial court sentenced Petitioner to death pursuant to A.R.S. ž 13-703.

On direct appeal, Petitioner raised seven separate challenges to his conviction. Upon review, the Arizona Supreme Court affirmed each of the convictions and the sentences imposed. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982); State v. Gerlaugh, 135 Ariz. 89, 659 P.2d 642 (1983).

On February 3, 1983, Petitioner commenced his first state post-conviction relief proceeding. (Resp't Mot. Summ. J., Ex. 24 Part 1 at 46 hereinafter Ex. ÔÇö.)1 On the same day, the trial court stayed Petitioner's execution. (Id. at 47.) On February 4, 1983, the trial court appointed John Foreman to represent Petitioner in his post-conviction proceeding. (Id. at 51.)

On March 21, 1983, Petitioner filed his amended petition for post-conviction relief. (Ex. 24 Part 2 at 57.) Petitioner later supplemented and amended his petition on April 1, 1983, May 23, 1983, July 22, 1983, and November 30, 1983. (Ex. 24 Parts 2-4.) On December 15, 1983, and March 7-8, 1984, the state court conducted an evidentiary hearing on the allegations raised in Petitioner's petition for post-conviction relief. (Exs. 28-30.) On May 15, 1984, the trial court denied Petitioner all relief. (Ex. 23 at 83.) On July 27, 1984, the trial court denied Petitioner's motion for rehearing. (Id. at 86.) On April 23, 1985, the Arizona Supreme Court granted Petitioner's petition for review and affirmed the trial court's denial of relief. State v. Gerlaugh, 144 Ariz. 449, 698 P.2d 694 (1985) (en banc).

On July 12, 1985, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ž 2254. On the same day the Court stayed Petitioner's execution. On July 23, 1985, the Court appointed present counsel. On September 26, 1985, Petitioner commenced a second Rule 32 proceeding and requested a stay of federal proceedings pending its resolution. On September 30, 1985, the Court granted Petitioner's motion to stay proceedings. (File doc. no. 16.)2

As noted previously, Petitioner commenced his second state post-conviction relief proceeding on September 26, 1985. (Ex. 36 at 1.) The trial court conducted oral argument on January 13, 1986, and on January 14, 1986, denied all relief on the grounds of preclusion. (Ex. 35 at 32.) On February 12, 1986, the trial court denied Petitioner's motion for rehearing. (Id. at 33.)

On October 31, 1986, Petitioner filed an amended petition for writ of habeas corpus in this Court. On February 10, 1987, Respondents filed the first of seven motions for partial summary judgment. On August 28, 1987, Petitioner again requested a stay of proceedings for the purpose of exhausting state court remedies. (File doc. no. 77.) On September 22, 1987, the Court granted Petitioner's motion and again stayed proceedings in this matter. (File doc. no. 93.)

On June 10, 1988, Respondents moved to vacate the stay of proceedings noting that the Arizona Supreme Court had denied review of Petitioner's third petition for post-conviction relief on February 18, 1988. (File doc. no. 96.) In addition, Respondents requested the Court to order Petitioner to respond to the various motions for partial summary judgment. On June 27, 1988, the Court granted Respondents' motion, vacated the stay of proceedings, and issued a briefing schedule.

On July 5, 1988, Petitioner requested permission to again amend his petition to incorporate the two newly exhausted claims. On July 25, 1988, the Court granted Petitioner's motion and on July 26, 1988, Petitioner filed an amended petition for writ of habeas corpus. (File doc. no. 101.)

On September 29, 1988, this case was randomly reassigned to Federal District Court Judge Roger G. Strand. On January 20, 1989, the Court withdrew the reference to the magistrate and on the same day Respondents filed a motion to stay proceedings based upon the United States Court of Appeals for the Ninth Circuit's decision 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), which found the Arizona death penalty statute unconstitutional. On February 9, 1989, the Court granted Respondents' motion and stayed further proceedings. On November 15, 1990, the Court, sua sponte, vacated the stay of proceedings based upon the United States Supreme Court's decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and scheduled a status conference for December 10, 1990. (File doc. no. 132.)

After the parties requested and received opportunities to file supplements to their original pleadings along with various responses and replies, the Court scheduled a status conference for July 23, 1992. At the status conference the Court informed the parties that the file had simply become unwieldy in light of the more than fifty pleadings now covering the seven motions for partial summary judgment. Upon further discussion with the parties it was agreed that the most expeditious and practical fashion in which to proceed would be to have Respondents file one consolidated motion for summary judgment addressing all of Petitioner's allegations of error.

On October 2, 1992, Respondents filed their consolidated motion for summary judgment. (File doc. no. 166.) On January 15, 1993, Petitioner filed his response to Respondents' motion and on April 9, 1993, Respondents filed their reply.


On January 24, 1980, Petitioner and two other individuals, Joseph Encinas and Matthew Leisure, decided to visit a friend who lived in Chandler. After drinking and socializing for a period of time, the three men began hitchhiking towards Phoenix. Although subject to some dispute, it appears that they all determined that they would rob whomever was unfortunate enough to offer them a ride.

At approximately 11:30 p.m., Scott Schwartz, the victim, offered the three men a ride. A short time after entering the vehicle Petitioner brandished a gun and directed Schwartz to a remote area in Mesa. Once they arrived at the scene of the crime, all four men exited the vehicle. Petitioner then pointed the gun at Schwartz and demanded money.

Unexpectedly, Schwartz disarmed Petitioner and attempted to shoot one of the three men. After the gun did not fire, the victim was informed that it was not loaded and the three men restrained and severely beat the victim. Petitioner then determined that to ensure their anonymity Schwartz had to be killed.

Petitioner told Encinas and Leisure to place the victim in the road so that he could run him over with the car. Petitioner then ran over the victim several times. Upon discovering that the victim was not yet dead, one or more of the three men proceeded to stab the victim to death with a screwdriver found in the victim's car. After the victim was dead, the three men attempted to hide the body in an adjacent alfalfa field.

The three drove off in the victim's car, which became disabled a short time later. The three men once again began to hitchhike and were picked up by Harry Roche. Although Mr. Roche could not identify the individuals at trial, he stated that some men answering their general description unsuccessfully attempted to rob him after he picked them up hitchhiking. Several days later, Encinas relayed what had transpired to a friend who provided general information to the police. All three men were subsequently arrested and confessed. Petitioner was the only defendant sentenced to death.


Petitioner is in custody pursuant to the judgment of a state court and seeks relief on the ground that his imprisonment and sentence are allegedly imposed in violation of his constitutional rights. This Court, therefore, has jurisdiction over his petition pursuant to 28 U.S.C. ž 2254.

Petitioner was convicted and sentenced by the Maricopa County Superior Court in the State of Arizona. Venue is, therefore, appropriate in the United States District Court for the District of Arizona pursuant to 28 U.S.C. ž 2241(d).


A motion for summary judgment is authorized in civil proceedings pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure are, to some extent, applicable to federal habeas corpus actions filed pursuant to 28 U.S.C. ž 2254....

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