Greenawalt v. Stewart, s. 88-1828
| Citation | 105 F.3d 1268 |
| Decision Date | 17 January 1997 |
| Docket Number | Nos. 88-1828,88-1910,s. 88-1828 |
| Parties | 97 Cal. Daily Op. Serv. 599, 97 Daily Journal D.A.R. 789 Randy GREENAWALT, Petitioner-Appellant, v. Terry L. STEWART, et al., Respondents-Appellees. , and 97-99000. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Denise I. Young, Assistant Federal Public Defender, Phoenix, Arizona, for petitioner-appellant.
Bruce M. Ferg, Assistant Attorney General, Tucson, Arizona, for respondents-appellees.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding. D.C. Nos. CV-83-2478-CLH, CV-96-988-SMM.
Before: WALLACE, ALARCON, and WIGGINS, Circuit Judges.
Death row inmate Randy Greenawalt petitions this court, pursuant to 28 U.S.C. § 2253, for a certificate of probable cause (CPC) to appeal a final order of the district court denying his motions under Federal Rule of Civil Procedure 60(b)(6) and Federal Rule of Appellate Procedure 4(a)(6). Those motions sought reconsideration of the district court's order which dismissed without prejudice Greenawalt's petition for writ of habeas corpus. He further attempts to appeal the denial by the district court of a CPC. Greenawalt also requests authorization to file successive habeas corpus petitions: one under the current 28 U.S.C. § 2244(b)(3)(A) and one under prior law, a motion to recall the mandate in our prior opinion, and a motion for a stay of execution. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 2253. We deny all requested relief.
The State of Arizona sentenced Greenawalt to death following his conviction on four counts of murder in the first degree. Our first opinion concerning Greenawalt recounts the facts presented to the jury, and we will not repeat them here. See Greenawalt v. Ricketts, 784 F.2d 1453, 1454-56 (9th Cir.) (Greenawalt I ), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). The Arizona Supreme Court affirmed the conviction and sentence in 1981, and the United States Supreme Court denied certiorari. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); see also State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (en banc), cert. denied, 454 U.S. 848, 102 S.Ct. 167, 70 L.Ed.2d 136 (1981).
The district court dismissed Greenawalt's first federal habeas corpus petition, filed on December 21, 1981, for failure to exhaust his state court remedies. After proceeding in state court, Greenawalt filed an amended petition on May 31, 1984. The district court denied that petition on the merits, and Greenawalt appealed.
On March 20, 1986, we reversed the district court and remanded "for a thorough and reasoned application of Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ] to the facts of this case." Greenawalt I, 784 F.2d at 1457. The district court granted the petition on remand. On appeal, we reversed. Greenawalt v. Ricketts, 943 F.2d 1020, 1030 (9th Cir.1991), cert. denied, 506 U.S. 888, 113 S.Ct. 252, 121 L.Ed.2d 184 (1992) (Greenawalt II).
Greenawalt filed his second petition for post-conviction relief in the Arizona Superior Court on January 18, 1993. He asserted, among other things, that his counsel was ineffective at trial and at sentencing, and that "there is newly discovered evidence sufficient to change the sentence which he would have received." After holding an evidentiary hearing, the superior court denied Greenawalt's petition on March 31, 1995. The court held that Greenawalt's ineffective assistance claim was procedurally barred because he had raised it in his first state petition for post-conviction relief. The court based that conclusion on the fact that the "ineffective assistance of counsel" box was checked on the original petition form, although Greenawalt did not raise the issue in the subsequent proceedings. The trial court also held that the evidence submitted regarding Greenawalt's mental condition was not "newly discovered evidence" because it was not a mitigating circumstance, and would not have affected his sentence. On February 19, 1996, Greenawalt filed a petition for review of the superior court's decision in the Arizona Supreme Court.
On April 23, 1996, Greenawalt filed a "Preliminary Petition for Writ of Habeas Corpus and Application for Appointment of Counsel" (preliminary petition) in the United States District Court for the District of Arizona. Although Greenawalt filed the preliminary petition pro se, Denise Young, an attorney in the Federal Public Defender's Office for the District of Arizona, has informed us that she drafted it on Greenawalt's behalf. There is no indication in the document of her authorship. In that petition, Greenawalt alleged that:
In Arizona, I was tried and I am being held, in violation of my federal constitutional rights. Among other constitutional violations, my right to due process, a fair trial and to be represented by effective assistance of counsel under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated when my sentencing counsel was ineffective.
The preliminary petition does not set forth any facts substantiating that federal constitutional claim. At the time Greenawalt filed the preliminary petition, the ineffective assistance of counsel claim described above was also pending before the Arizona Supreme Court.
Greenawalt also requested that the court appoint Denise Young as his attorney because of his indigent status, and "grant counsel after appointment sufficient time to amend this petition after [the] entire record is reviewed and proper investigation is conducted to ensure that all [his] federal constitutional issues are raised." Young was already Greenawalt's attorney in the second state post-conviction proceedings, which began in 1993.
The day after Greenawalt filed the preliminary petition, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1217-26 (Act), which substantially altered the standards and procedures governing federal habeas corpus review. Greenawalt concedes that he filed the preliminary petition "to preserve the district court's jurisdiction to hear the serious federal constitutional violations surrounding [his] conviction and death sentence ... that arguably could not be brought under the Act."
On September 5, 1996, the district court dismissed the preliminary petition without prejudice on the ground that he had not exhausted his state remedies.
It appearing that Petitioner has filed a second [state post-conviction relief] petition and that the Arizona Supreme Court has not decided a petition for review, Petitioner's preliminary habeas petition is prematurely before this Court. It is apparent to the Court that Petitioner filed his premature habeas petition the day before the Act was signed in an attempt to foreclose its application to his case.
The district judge also concluded that Greenawalt would not suffer any prejudice from the dismissal of the preliminary petition because the Act, he thought, applied to all pending cases, regardless of when they were filed. The court granted Greenawalt leave to refile his petition once the state court proceedings were completed. It did not rule on Greenawalt's motion for appointment of counsel or his request to proceed in forma pauperis. Greenawalt did not appeal the district court's order.
The Arizona Supreme Court summarily denied Greenawalt's petition for review on October 21, 1996, and denied reconsideration on December 17, 1996. Greenawalt filed a petition for certiorari in the United States Supreme Court on December 16, 1996, but the Court has not acted upon it. On December 23, 1996, Arizona issued a warrant scheduling Greenawalt's execution for 12:05 a.m. on January 23, 1997.
On January 2, 1997, Denise Young filed a motion to vacate the district court's September 5 Order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or alternatively to reopen the time for appeal under Federal Rule of Appellate Procedure 4(a)(6). The district court denied both motions on January 6, 1997. The court reasoned that
[t]he "preliminary" successive petition did not set forth Petitioner's claims and Petitioner was still in the process of exhausting claims in state court. Therefore, the Court properly dismissed the petition. The last page of the September 5 Order directed the clerk to send Petitioner a copy and his name also appeared on the computerized mailing list for this case. Petitioner did not submit an affidavit regarding non-receipt of a copy of the Order. Ms. Young submitted an affidavit which states that Petitioner told her that he "did not recall" receiving a copy. After weighing the evidence, the Court finds that the clerk mailed a copy of the September 5 Order to the petitioner and that he received it. Although Ms. Young avows that she never received a copy, the last page of the Order directed the clerk to send her a copy and the Court assumes that the clerk did so. Furthermore, Ms. Young was not entitled to receive notice of the Order because she was not (and is not currently) appointed as Petitioner's counsel in the district court. Her copy was only a courtesy copy.
On January 8, 1997, a Federal Public Defender filed in the district court an application on Greenawalt's behalf for a CPC to appeal the January 6 Order. In that application, Greenawalt argued that a CPC should issue because (1) the district court "ignored Ninth Circuit precedent regarding retroactive application of the [Act]"; (2) although "it is true that [Greenawalt] was exhausting claims in the highest state court, [Greenawalt] did allege a claim of ineffective assistance of counsel"; (3) the district court should have stayed the action pending exhaustion in the ...
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