Jeffers v. Ricketts, CIV 85-0945 TUC ACM.

Decision Date04 February 1986
Docket NumberNo. CIV 85-0945 TUC ACM.,CIV 85-0945 TUC ACM.
Citation627 F. Supp. 1334
PartiesJimmie Wayne JEFFERS, Petitioner, v. James R. RICKETTS, Director, Arizona Department of Corrections; and Donald Wawrzaszek, Superintendent of the Arizona State Prison, Respondents.
CourtU.S. District Court — District of Arizona






Donald S. Klein, Frank P. Leto, Pima Co. Public Defenders, Tucson, Ariz., John P. Frank, Jose A. Cardenas, Lewis & Roca, Phoenix, Ariz., for petitioner.

Gerald R. Grant, Asst. Atty. Gen., Phoenix, Ariz., for respondents.


MARQUEZ, District Judge.

Petitioner hereinafter referred to as Jeffers, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. ? 2254. He challenges his convictions for assault with a deadly weapon and first degree murder. He also challenges his sentence of death.


Jeffers was convicted of first degree murder and assault with a deadly weapon following a jury trial in Pima County Superior Court on February 9, 1978. After a hearing on April 14, 1978 the Arizona trial judge found two statutory aggravating circumstances and no mitigating factors. In accordance with the Arizona death penalty statute, A.R.S. ? 13-454 (currently A.R.S. ? 13-703), Jeffers was sentenced to death.

During the pendency of the automatic appeal to the Arizona Supreme Court, the death sentence was vacated and the matter was remanded for re-sentencing under State v. Watson, 120 Ariz. 44, 586 P.2d 1253 (1978) requiring the sentencing Judge to consider all factors submitted in mitigation, not just those enumerated in the statute. On June 20 and July 10, 1980 hearings were held to establish aggravating and mitigating factors. The sentencing judge found two aggravating circumstances present: that the Defendant created a grave risk of death to another person in the commission of the murder and that the Defendant committed the first degree murder in an especially heinous, cruel and depraved manner, A.R.S. ? 13-703(F)(3) & (6). The court found no mitigating factors to exist and again sentenced Jeffers to death. His appeal to the Arizona Supreme Court was then reinstated.

Prior to the decision on the appeal, Jeffers joined a class of death row inmates challenging the constitutionality of the Arizona death sentencing procedures in federal court, Knapp v. Cardwell, 513 F.Supp. 4 (D.Ariz.1980). The decision upholding the constitutionality of the statute was affirmed by the Ninth Circuit, Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.1982).

The Arizona Supreme Court affirmed both the convictions and the sentence imposed, State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983). The court, however, reversed the finding that the Defendant had created a grave risk of death to another during the commission of the murder. The court also reversed the holding that the murder was committed in an especially cruel manner. The court agreed that the murder was committed in an especially heinous and depraved manner and that the proffered mitigating factors did not call for leniency.

Jeffers' execution was set for December 7, 1983. In late November, 1983 he filed a petition for post-conviction relief with the Arizona courts. This action was then filed on December 3, 1983 in the Phoenix division of this court, Jeffers v. Ricketts, CIV 83-2322 PHX EHC. A stay of execution was imposed by this court on December 4, 1983. Pursuant to this court's Local Rules of Practice, Rule 1(c), on October 21, 1985, this action was transferred to the Tucson division of the court and renumbered under the present case number.


Respondents initially contended that Jeffers had failed to exhaust his state court remedies. Jeffers' post-conviction petition was denied without a hearing and the Arizona Supreme Court refused to grant review. The Respondents no longer contend that Jeffers has failed to exhaust state procedures. Accordingly, this court will determine the merits of the petition.


In early May, 1976, Jeffers, Penelope Cheney hereinafter Penny and another person were arrested on state charges of receiving stolen property. Penny was released on a bond posted by Jeffers. Jeffers was unable to post bond for himself and he remained in custody at the Pima County Jail. While he was at the jail, Jeffers received a copy of a police report from his lawyer concerning his case. That report indicated that Penny and another person were providing information to the police about Jeffers and some heroin transactions. In August of 1976, Jeffers mailed that report to some friends outside the jail. Apparently, they photocopied the report and mailed it back to Jeffers. During a normal jail inspection of the mail, the report was discovered and briefly seized. Later it was photocopied by jail officials and then delivered to Jeffers.

Later that month, Jeffers attempted to send a kite (a jailhouse note) to another inmate named Bobby Norgard. The note was folded several times and handed to a jail detention officer for delivery. Rather than delivering the note, the detention officer opened and read it. The note was then seized.

In early October, 1976 Jeffers was able to post bond in his case pending appeal of his conviction. He went to his parents home in California for a few days and then returned to Tucson, Arizona. Shortly thereafter, he met Doris Van der Veer hereinafter referred to as Van der Veer. Jeffers and Van der Veer began to be constant companions immediately after meeting one another, including living together. On October 18, 1978 they moved into the Linda Vista Motel on Miracle Mile in Tucson. Jeffers had told Van der Veer of his past relationship with Penny and informed her that he wanted to get back together with Penny despite what she had done. Jeffers had Van der Veer deliver a note to Penny asking for a meeting with Penny. The note suggested that they get back together and also indicated that Jeffers had some heroin that he wanted to share with Penny. The record indicates that both Jeffers and Penny were heroin addicts.

Two days after the note was delivered, Jeffers informed Van der Veer that Penny had called and was coming over to discuss getting back together. Jeffers asked Van der Veer to wait outside the motel room when Penny arrived. The two women met each other for a few seconds at the door and then Van der Veer went outside by the motel pool. After about one and a half to two hours, it began to rain. Van der Veer then went to her car and listened to the C.B. radio for a while. She then returned to the room and knocked on the door.

Jeffers unlocked the door and allowed Van der Veer to enter. Penny was lying on the bed unconscious and appearing to be cyanotic. Jeffers was aiming a handgun at Van der Veer and instructed her to sit quietly in a chair. Jeffers then injected a liquid into Penny's wrist stating "I have given her enough shit to kill a horse and this bitch won't die." Van der Veer asked whether they were going to help Penny and was told that he Jeffers intended to kill her.

Van der Veer, a former licensed practical nurse, noticed foam coming from Penny's mouth, an indication of heroin overdose. She was able to detect a faint pulse and shallow breathing. Jeffers climbed on top of Penny, removed her belt and began to strangle her with it. Van der Veer requested Jeffers to stop since it appeared that Penny would die from the heroin overdose anyway. Jeffers refused to stop stating: "No, I've seen her this way before and she's come out of it." Jeffers later discarded the belt and began to use his hands to strangle Penny. When it appeared that she had died, Jeffers stopped.

Van der Veer again checked for a pulse. She could not find one so she informed Jeffers that Penny was dead. Jeffers then directed Van der Veer to inject heroin into Penny's body in several places. Jeffers took pictures of Van der Veer doing this. Jeffers also instructed Van der Veer to climb on top of Penny's body and place her hands around Penny's neck. Again, Jeffers took photographs of this indicating to Van der Veer that he now had evidence that she was an accomplice. Following this, Jeffers climbed back on top of Penny and began to strike her in the face with his hands. For each blow he delivered, he would state: "This is for so and so, naming several names." Jeffers then pulled Penny's body from the bed and placed it in the motel room shower where it remained for three days. After three days, Jeffers and Van der Veer removed the body from the shower, wrapped it in plastic trash bags and then tied it up in a sleeping bag. Late that night, the body was placed in the trunk of Van der Veer's car. The next day, Jeffers and Van der Veer left Tucson in separate cars heading towards Sedona, Arizona. The day after their arrival in Sedona, the body was buried in a remote area in a shallow grave. They then returned to Tucson. Additional facts are set forth where necessary throughout this opinion.

Jeffers has asserted seventeen separate attacks on his convictions and sentence. Jeffers has also requested an evidentiary hearing on several of these claims. The court has examined the state court record submitted to it. For reasons set forth more particularly where appropriate in this opinion, there is no need to hold an evidentiary hearing in this matter. The motion for an evidentiary hearing is denied.

As stated above, this court has examined the state court record submitted to it. Since neither party adequately and accurately identified the relevant portions of the state court record, this court was required to examine the entire record in order to comply with the mandates of Richmond v. Ricketts, 774 F.2d 957 (9th Cir. 1985). The state court record considered in this case is set forth in the appendix. The more relevant portions of the record are identified with particularity...

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