Gretzler v. Stewart

• Decision Date: 30 April 1997
• Docket Number: No. 95-99023,95-99023
• Citation: 112 F.3d 992
• Parties: 97 Cal. Daily Op. Serv. 3140, 97 Daily Journal D.A.R. 5491 Douglas Edward GRETZLER, Petitioner-Appellant, v. Terry L. STEWART, Director, of the Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 992

112 F.3d 992

97 Cal. Daily Op. Serv. 3140, 97 Daily Journal

D.A.R. 5491

Douglas Edward GRETZLER, Petitioner-Appellant, v. Terry L. STEWART, Director, of the Arizona Department of Corrections, Respondent-Appellee.

No. 95-99023.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 27, 1996.

Decided April 30, 1997.

Cary Sandman and James W. Stuehringer, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, Tucson, AZ, for petitioner-appellant.

Crane McClennen, Assistant Attorney General, Phoenix, AZ, for respondent-appellee.

Appeal from the United States District Court for the District of Arizona, Richard M Before: FARRIS, PREGERSON, and LEAVY, Circuit Judges.

Bilby, Chief Judge, Presiding. D.C. No. CV-85-00537-RMB.

LEAVY, Circuit Judge.

Douglas Edward Gretzler, an Arizona prison inmate currently under a state court sentence of death, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. ¹

FACTS AND PRIOR PROCEEDINGS

The relevant underlying facts are largely undisputed and were adequately summarized by the Supreme Court of Arizona:

In late December of 1972, Gretzler abandoned his wife and infant daughter in New York City, leaving no word of his intentions or whereabouts. He drove to Casper, Wyoming, and then to Denver, Colorado, where he met and moved in with Willie Steelman and Steelman's sister. At this point, Gretzler's criminal record consisted of minor traffic charges and one count of vagrancy.

On 11 October 1973, Gretzler, Steelman and a woman friend left Denver for Phoenix, Arizona. In Globe, Arizona, the two men committed an armed robbery of a sunbathing couple; the robbery netted them five dollars. Later on the same day, they picked up a hitchhiker, tied him to a tree and stole his clothes, a ring and twenty dollars. On 15 October, the trio arrived in Phoenix where they pawned the ring and robbed a woman of twenty dollars and some checks.

Shortly after the trio's arrival in Phoenix, the woman set forth on her own. Steelman and an Arizona acquaintance known as "Preacher" went out to settle a drug-related dispute involving Preacher's brother. Both Preacher and his brother died in the resulting melee.

Through two young men, Ken Unrein and Mike Adshade, Gretzler and Steelman learned that acquaintances of Steelman named Bob Robbins and Yafah Hacohen were living at an area trailer park. All four visited the couple. Following the visit, Gretzler and Steelman kidnapped Unrein and Adshade in their Volkswagen van and drove to Stanislaus County, California, where, on 17 October 1973, the pair garroted and stabbed Unrein and Adshade to death. They hid the bodies and continued to drive the Volkswagen until it stopped running, at which point they began to hitchhike. On 20 October, they kidnapped a young couple who stopped for them near Petaluma, California. Steelman raped the woman captive, but eventually both victims were released at an underground garage, where Gretzler and Steelman stole another car.

Concerned that Bob Robbins and Yafah Hacohen would eventually connect them with the disappearance of Unrein and Adshade, Gretzler and Steelman decided to return to Arizona and silence the couple. On the way to Phoenix, they picked up a hitchhiker named Steve Loughren. The three stayed overnight with Robbins and Hacohen; the following evening, Gretzler and Steelman murdered Loughren in an isolated area near the Superstition Mountains. They then returned to their friends' trailer. On 25 October, while Hacohen was at work, they garroted and shot Robbins to death and hid his body. When Hacohen returned home, she, too, was murdered.

Gretzler and Steelman then moved on to Tucson where they shared a "crash pad" with some local street people. On 2 November, while hitchhiking with some of their Tucson acquaintances, they were picked up by Gilbert Sierra, whom they murdered later that night. They drove the victim's car to a parking lot, where they wiped their fingerprints off the vehicle and abandoned it.

On 3 November, Gretzler and Steelman kidnapped Vincent Armstrong who stopped for them while they were again hitchhiking. Armstrong escaped from his moving car and notified police of his abduction and the theft of his vehicle. His captors drove his Pontiac Firebird to a Tucson condominium complex, where Michael Sandberg was washing his white Datsun in the parking lot. They parked the Firebird in an inconspicuous corner of the lot and forced Sandberg to take them to his condominium where his wife Patricia was studying. While in the Sandbergs' home, Gretzler dyed his blond hair to brown. Both he and Steelman changed from jeans to slacks and coats belonging to Michael Sandberg. They bound and gagged both hostages, Michael on his bed and Patricia on the living-room couch. When night fell, Gretzler shot Michael in the head, muffling the gun with a pillow. He then shot Patricia, who was entirely covered by a blanket. Steelman took the gun and fired one more shot into her body, to make certain she was dead. The two then wiped down the condominium in an attempt to eliminate their fingerprints, gathered together credit cards, checks, a camera and other items belonging to the Sandbergs, and drove away in the couple's car.

They went to the place where they had arranged to meet acquaintances with whom they planned to drive to California. The only person at the meeting-place was Donald Scott, and the three set off together. Scott knew that he was riding in a stolen car, and he testified that he saw Steelman pay for motel rooms and automobile service with Michael Sandberg's American Express card. However, Scott apparently was unaware of his companions' other crimes. He had been told by then that he was free to leave them if things became "too much" for him. Scott did leave when Gretzler and Steelman stopped for gas in Pine Valley, California. The two continued to Lodi, California, where they entered the home of the Walter Parkin family and took as hostages all present, as well as others who arrived later. Gretzler and Steelman forced Parkin to open the safe in his nearby store and stole between $3,000 and $4,000, of which Gretzler's share was about half. Afterwards, Gretzler shot to death seven adults, whom he had previously bound and gagged. He went to a bedroom where Steelman had pulled a blanket over the heads of two sleeping children, shot one of them to death and waited while Steelman shot the second.

State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1028-30 (1980).

A few days later, Gretzler and Steelman were arrested in California as suspects in the Parkin homicides. Upon learning from California authorities that Gretzler and Steelman had been driving a car registered to Michael Sandberg, Tucson police went to the Sandberg home where they discovered the couple's bodies. Shortly thereafter, Gretzler confessed to the murders of Michael and Patricia Sandberg.

Gretzler pleaded guilty in California to nine counts of first degree murder for the Parkin killings, for which he was sentenced to nine concurrent terms of life imprisonment. He and Steelman were then extradited to Arizona to stand trial for the murders, burglary and robbery of Michael and Patricia Sandberg, and for the kidnapping and robbery of Vincent Armstrong. The jury found Gretzler guilty on all counts. ² He was sentenced to death for the two murders, and to concurrent terms of imprisonment, ranging from twenty-five to fifty years, on the remaining counts.

The Arizona Supreme Court affirmed Gretzler's convictions on all counts, upheld his sentences on the kidnapping, robbery and burglary counts, but remanded for resentencing on the two murder counts. State v. Gretzler, 612 P.2d at 1055. On remand, the trial court found as aggravating circumstances that (1) Gretzler had nine prior convictions punishable by either death or life imprisonment in Arizona, (2) these nine prior Gretzler filed a petition for post-conviction relief ("PCR") in state court in 1983. Following a hearing with oral argument, the trial court denied relief in 1984, and rejected Gretzler's request for rehearing in 1985. After the Arizona Supreme Court denied review, Gretzler filed a second PCR (subsequently amended) in state court. Shortly thereafter, Gretzler filed the instant petition for federal habeas relief. The district court stayed its proceedings pending resolution of Gretzler's second PCR. In 1986, the state court denied relief and rehearing in the second PCR, and the Arizona Supreme Court denied review in 1987.

convictions were for crimes of violence, (3) the two Arizona murders had been committed for pecuniary gain, and (4) the killings were especially heinous, cruel, or depraved. The court found as a mitigating circumstance that Gretzler had a significantly impaired capacity to appreciate the wrongfulness of his conduct and/or to conform his conduct to the requirements of the law, but rejected Gretzler's contention that the mitigating circumstance was substantial enough to warrant a call for leniency. The court resentenced Gretzler to death on both counts. The sentences were affirmed on appeal. State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).

The district court lifted its stay in 1987, and granted a motion for partial summary judgment in favor of the respondent the following year. The court again stayed the proceedings, this time pending resolution of the appeal in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc), cert. denied sub nom. Lewis v. Adamson, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). The district court lifted its second stay in 1991, and Gretzler filed an amended petition for writ of habeas corpus in 1992. In his amended petition, Gretzler raised a total of twenty-six issues. Following additional briefing...