Jeffers v. Lewis

• Decision Date: 26 May 1994
• Docket Number: No. 86-1840,86-1840
• Citation: 38 F.3d 411
• Parties: Jimmie Wayne JEFFERS, Petitioner-Appellant, v. Samuel LEWIS, Director, Arizona Department of Corrections; Donald Wawrzaszek, Superintendent, Arizona State Prison, Respondents-Appellees. . Argued and Submitted (en banc)
• Court: U.S. Court of Appeals — Ninth Circuit

Page 411

38 F.3d 411

Jimmie Wayne JEFFERS, Petitioner-Appellant, v.Samuel LEWIS, Director, Arizona Department of CorrectionsDonald Wawrzaszek, Superintendent, Arizona State Prison, Respondents-Appellees.

No. 86-1840.

United States Court of Appeals Ninth Circuit.

Argued and Submitted (en banc) May 26, 1994.

Decided Sept. 28, 1994.

As Amended Nov. 16, 1994.

Noonan, Circuit Judge, filed dissenting opinion in which Pregerson and William A. Norris, Circuit Judges, joined.

Frank P. Leto, Donald S. Klein, Asst. Pima County Public Defenders, Tucson, AZ, and Clifford Gardner, Gardner & Derham, San Francisco, CA, for petitioner-appellant.

Paul J. McMurdie, Chief Counsel, Atty. General's Office, Phoenix, AZ, for respondents-appellees.

On Remand from the United States Supreme Court.

Before: WALLACE, Chief Judge, and FLETCHER, FARRIS, PREGERSON, NORRIS, BEEZER, WIGGINS, NOONAN, THOMPSON, LEAVY and RYMER, Circuit Judges.

Opinion by Judge DAVID R. THOMPSON; Dissent by Judge PREGERSON; Dissent by Judge NOONAN.

DAVID R. THOMPSON, Circuit Judge:

In 1978, an Arizona jury convicted Jimmie Wayne Jeffers of first degree murder.¹ After a sentencing hearing, the trial court found two aggravating factors and no mitigating circumstances.The court sentenced Jeffers to death, in accordance with the Arizona death penalty statute, Ariz.Rev.Stat. Sec. 13-454(Supp.1973)(currently Ariz.Rev.Stat. Sec. 13-703(1989)).

The Arizona Supreme Court vacated Jeffers's death sentence and remanded his case to the trial court for resentencing in light of that court's decision in State v. Watson, 120 Ariz. 441, 586 P.2d 1253(1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478(1979).In Watson, the Arizona Supreme Court applied the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973(1978), which held a sentencer in a capital proceeding cannot be restricted to the specific mitigating factors enumerated in a death penalty statute, but must consider any aspect of a defendant's background or character the defendant offers as a justification for not imposing the death penalty.

On June 20 and July 10, 1980, the trial court held supplemental sentencing hearings.Again it found two aggravating factors: Jeffers created a grave risk of death to a third person in the commission of the murder, and Jeffers committed the murder in an especially heinous, cruel, and depraved manner.SeeAriz.Rev.Stat. Secs. 13-703(F)(3) and (6)(1989).The trial court found no mitigating circumstances and resentenced Jeffers to death.

On review, the Arizona Supreme Court found the evidence insufficient to prove Jeffers knowingly created a grave risk of death to a third person while committing the murder, and invalidated this aggravating factor.State v. Jeffers, 135 Ariz. 404, 428-29, 661 P.2d 1105, 1129-30, cert. denied, 464 U.S. 865, 78 L.Ed.2d 174(1983).The Arizona Supreme Court also found the state failed to prove Jeffers committed the murder in an especially "cruel" manner, but determined that "the events surrounding the murder itself support the trial court's finding that the murder was 'especially heinous ... and depraved.' "Id. at 430, 661 P.2d at 1131.The court affirmed Jeffers's death sentence, stating, "In our independent determination we found one aggravating factor--that the offense was committed in an especially heinous and depraved manner--and no mitigating factors sufficiently substantial to call for leniency."Id. at 432, 661 P.2d at 1133.

The United States District Court for the District of Arizona denied Jeffers's petition for a writ of habeas corpus.Jeffers v. Ricketts, 627 F.Supp. 1334(D.Ariz.1986).On appeal, a panel of this court granted the writ of habeas corpus and vacated Jeffers's death sentence.The panel held that although the "especially heinous ... or depraved" aggravating factors listed in section 13-703(F)(6) of the Arizona Revised Statutes were constitutional as construed by the Arizona Supreme Court, those factors had not been constitutionally applied in Jeffers's case.Jeffers v. Ricketts, 832 F.2d 476, 482-86(9th Cir.1987).

The Supreme Court reversed, stating it had rejected an identical claim in Walton v. Arizona, 497 U.S. 639, 652-55, 110 S.Ct. 3047, 3056-58, 111 L.Ed.2d 511(1990).Lewis v. Jeffers, 497 U.S. 764, 777, 110 S.Ct. 3092, 3100-01, 111 L.Ed.2d 606(1990).It remanded the case for further proceedings.Id. at 784, 110 S.Ct. at 3104.

Following remand, the panel again ordered the writ issued and vacated Jeffers's death sentence.This time the panel held the opinion of the Arizona Supreme Court was not sufficiently clear to permit the panel to determine whether, consistent with Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725(1990), the Arizona Supreme Court had reweighed all of the mitigating circumstances against the remaining aggravating factor.Jeffers v. Lewis, 5 F.3d 1199, 1206-09(9th Cir.1992).

We granted en banc review.We now affirm the district court's denial of the writ of habeas corpus.

DISCUSSION

Under Clemons, 494 U.S. at 741, 110 S.Ct. at 1444, in a "weighing" state such as Arizona, when a trial court bases its decision to impose a death sentence on both valid and invalid aggravating factors, a state appellate court can affirm the sentence only after performing a harmless-error review, or reweighing the mitigating evidence against the remaining valid aggravating factors.SeeRichmond v. Lewis, --- U.S. ----, ----, 113 S.Ct. 528, 535, 121 L.Ed.2d 411(1992);Sochor v. Florida, --- U.S. ----, ----, 112 S.Ct. 2114, 2119, 119 L.Ed.2d 326(1992);Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367(1992).The Supreme Court has never specified the degree of clarity with which a state appellate court must reweigh in order to cure an otherwise invalid death sentence.SeeRichmond, --- U.S. at ----, 113 S.Ct. at 535.

Close state appellate court scrutiny is required, Stringer, --- U.S. at ----, 112 S.Ct. at 1136, but the Court has not said what must appear in the state appellate court's opinion for us to conclude it has satisfied Clemons's reweighing requirements.Justice O'Connor has said, in applying Clemons's standard for harmless error review, that "[a]n appellate court's bald assertion" of harmless error without "a principled explanation of how the court reached that conclusion" is not sufficient.SeeSochor, --- U.S. at ----, 112 S.Ct. at 2123(O'Connor, J., concurring).On the other hand, the Court has said that a statement by the sentencing court that it considered all mitigating evidence is adequate, Parker v. Dugger, 498 U.S. 308, 314-15, 111 S.Ct. 731, 736-37, 112 L.Ed.2d 812(1991), and in this circuit we presume state courts follow the law, even when they fail to so indicate.Beam v. Paskett, 3 F.3d 1301, 1306(9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1631, 128 L.Ed.2d 354(1994).

Here, the Arizona Supreme Court not only said it independently reweighed the remaining aggravating factor against the mitigating circumstances, it provided a principled explanation of what it did.It began by acknowledging its obligation under section 13-703(E) of the Arizona Revised Statutes to undertake an independent review of the record to consider the existence of aggravating and mitigating circumstances, and "determine for ourselves if the latter outweigh the former when we find both to be present."Jeffers, 135 Ariz. at 428, 661 P.2d at 1129.It then analyzed the evidence before the trial court to evaluate the presence of aggravating and mitigating circumstances.It invalidated one of the aggravating factors found by the trial court, and modified another.Id. at 428-30, 661 P.2d at 1129-31.Cf.Stringer, --- U.S. at ---- - ----, 112 S.Ct. at 1136-37.

The court next assessed Jeffers's mitigation evidence.It examined his arguments and the testimony regarding his long-term use of heroin, his use of alcohol and heroin on the date of the murder, his assertion of provocation for the murder, and the statements he made to psychiatrists while under the influence of sodium amytal.Jeffers, 135 Ariz. at 430-31, 661 P.2d at 1131-32.Agreeing with the trial court's findings, the Arizona Supreme Court concluded there was no substantial evidence supporting mitigation.Id. at 431, 661 P.2d at 1132.The court then stated, "We have carefully reviewed the record as required to determine whether the factors in mitigation outweigh the aggravating circumstances, State v. Richmond, 114 Ariz. 186, 560 P.2d 41(1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101(1977), and we find they do not."Jeffers, 135 Ariz. at 431-32, 661 P.2d at 1132-33.

Even though the Arizona Supreme Court cited Richmond, it is clear the court's independent review of the record and its explanation of its reweighing process satisfied the requirements of Clemons and Stringer.SeeClemons, 494 U.S. at 750-52, 110 S.Ct. at 1449-56;Stringer, --- U.S. at ----, 112 S.Ct. at 1136.

Jeffers, however, argues the Arizona Supreme Court should not have engaged in any reweighing once it invalidated an aggravating factor.He contends the case should have been remanded to the trial court to reweigh the remaining aggravating factors against the mitigating circumstances.He contends this failure to remand to the trial court violated his right to due process under the Fourteenth Amendment.We disagree.

"Following Clemons, a reviewing court is not compelled to remand" for resentencing when it invalidates an aggravating factor, so long as it reweighs the evidence independently.Parker, 498 U.S. at 320, 111 S.Ct. at 739.See alsoWalton, 497 U.S. at 647, 110 S.Ct. at 3053.Because the Arizona Supreme Court reweighed the aggravating and mitigating circumstances, it was not required to remand the case under federal law.

State law, however, that guarantees a criminal defendant procedural rights at sentencing, may give rise to a state-created liberty interest...