Lambright v. Stewart

• Citation: 167 F.3d 477
• Decision Date: 26 January 1999
• Docket Number: Nos. 96-99020,96-99026,96-99025,s. 96-99020
• Parties: 99 Cal. Daily Op. Serv. 692, 99 Daily Journal D.A.R. 867 Joe Leonard LAMBRIGHT, Petitioner-Appellant, v. Terry L. STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. Robert Douglas Smith, Petitioner-Appellant, v. Terry L. Stewart, Director, Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 477

167 F.3d 477

99 Cal. Daily Op. Serv. 692, 99 Daily Journal

D.A.R. 867

Joe Leonard LAMBRIGHT, Petitioner-Appellant, v. Terry L. STEWART, Director, Arizona Department of

Corrections, Respondent-Appellee.

Robert Douglas Smith, Petitioner-Appellant, v. Terry L. Stewart, Director, Arizona Department of

Corrections, Respondent-Appellee.

Nos. 96-99020, 96-99025, 96-99026.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 18, 1998.

Decided Jan. 26, 1999.

David P. Tiers, Tucson, Arizona, for petitioner-appellant Joe Leonard Lambright.

John F. Palumbo, Pima County Public Defender, Tucson, Arizona, for petitioner-appellant Robert Douglas Smith.

S. Jonathan Young, Tucson, Arizona, for petitioner-appellant Robert Douglas Smith.

Eric J. Olsson, Assistant Attorney General, Tucson, Arizona, for respondent-appellee Terry L. Stewart.

Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Washington, for amicus.

Appeals from the United States District Court for the District of Arizona; Richard M. Bilby, District Judge, Presiding. D.C. Nos. CV-87-00234-RMB, CV-87-00235-RMB.

Before: FERGUSON, REINHARDT, and THOMPSON, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge THOMPSON.

REINHARDT, Circuit Judge:

Following a single trial before "dual juries," petitioners Joe Leonard Lambright and Robert Douglas Smith were convicted of first degree murder, kidnapping and sexual assault, and were sentenced to death. Because Arizona law did not authorize the use of dual juries at the time of petitioners' trial, the Arizona Supreme Court concluded that the trial judge in this case had conducted an inappropriate and unauthorized experiment with petitioners' trial. It nonetheless upheld the convictions. We hold that the Due Process Clause of the Fourteenth Amendment does not permit a trial judge in a capital case to engage in unauthorized experiments with a central element of the historic trial structure. Moreover, we also hold that, by failing to follow its own procedural rules, Arizona violated a state created liberty interest, and thereby deprived petitioners of their federal due process rights. For these reasons, we reverse their convictions and remand for issuance of a writ of habeas corpus.

I. Facts and Procedural History

Lambright and Smith were convicted of the March 11, 1980 kidnapping, sexual assault and brutal murder of Sandra Owen. The crimes occurred in the course of a cross-country trip taken by Lambright, Lambright's girlfriend Kathy Foreman, and Smith. There is little doubt that both defendants committed serious criminal offenses, but each denied to the police that he participated in the actual murder: Lambright told the police that Smith and Foreman were involved, while Smith said it was Foreman and Lambright. Foreman turned state's evidence and testified that she asked the two defendants to let Owen go, but they refused and then proceeded to murder her.

Prior to trial, the state moved to consolidate Lambright and Smith's trials. Both petitioners opposed consolidation, and filed motions to sever the case. The trial judge agreed that the cases should be severed, but decided that rather than holding separate trials, as required by Arizona Rule of Criminal Procedure 13.4, he would conduct a single trial before two juries in one courtroom.

Over the objections of both defendants, the court then commenced a "dual jury" trial. Two juries were selected from separate venires. When evidence admissible against both defendants was presented, both juries remained in the courtroom. One sat in the jury box, the other in a row of chairs on the opposite side of the courtroom. The juries switched places every other day. When evidence admissible as to only one defendant was offered, that defendant's jury would remain in the courtroom while the other jury was excused. Separate opening and closing arguments were made, and the juries were instructed separately and deliberated separately.

On March 30, 1982 the dual juries found Lambright and Smith guilty of first degree murder, sexual assault and kidnapping. Two months later, Judge Michael Brown sentenced both petitioners to death.

On direct appeal to the Arizona Supreme Court, both Lambright and Smith argued that there was no basis in state law for the use of dual juries. Both petitioners also alleged that the use of dual juries deprived them of due process under the Fourteenth Amendment to the United States Constitution. The Arizona Supreme Court largely agreed with petitioners' assertions, holding that the use of dual juries was in fact unauthorized by state law. See State v. Lambright, 138 Ariz. 63, 673 P.2d 1, 7 (Ariz.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984); State v. Smith, 138 Ariz. 79, 673 P.2d 17, 19 (1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). The court, however, engaged in a harmless error review, and finding that no prejudice resulted from the use of the "experiment[al]" proceeding, affirmed the convictions and sentences. See State v. Lambright, 673 P.2d at 7; State v. Smith, 673 P.2d at 19.

Both petitioners sought post-conviction review in the Arizona state courts pursuant to Arizona Rule of Criminal Procedure 32. Lambright filed his first Rule 32 petition in 1984. ¹ The state court denied relief, and set the execution date. Lambright then filed his original habeas petition in the United States District Court for the District of Arizona, in which he argued, inter alia, that the use of dual juries violated Arizona law and his Fourteenth Amendment due process rights. The district court stayed the execution, but dismissed Lambright's petition without prejudice because, the court held, it contained unexhausted claims. In 1991, Lambright filed his second Rule 32 petition in Arizona state court. The state court again denied the petition. In 1995, Lambright filed a third Rule 32 petition in state court, which was also denied.

In 1995, Lambright filed an amended petition for writ of habeas corpus in the federal district court. Before the district court, Lambright reiterated his arguments that the use of dual juries violated the Fourteenth Amendment. He also argued that the use of dual juries was unauthorized by Arizona law at the time of his trial, and that by depriving him of the type of jury trial to which he was entitled under Arizona law, the trial court deprived him of his Fourteenth Amendment Due Process Rights. The district court denied the habeas petition. See Lambright v. Lewis, 932 F.Supp. 1547 (D.Ariz.1996).

Smith filed his first Rule 32 petition in 1984, which the state court denied. In 1987, Smith filed a habeas petition in the United States District Court for the District of Arizona, asserting, inter alia, that the use of dual juries was unauthorized under Arizona law and that their use deprived him of his Fourteenth Amendment due process rights. The district court stayed the execution and dismissed the petition without prejudice for failure to exhaust state court remedies. Smith then filed a second Rule 32 petition in 1989, which was denied by the state court. Smith's third and final Rule 32 petition was also denied. ²

In 1994, Smith filed his amended petition for writ of habeas corpus in the district court. In this petition Smith argued that the use of dual juries violated the Arizona Rules of Criminal Procedure and violated his due process rights under the Fourteenth Amendment. The district court denied the amended habeas petition. Smith v. Lewis, No. CIV 87-234 TUC RMB, Amended Memorandum Opinion and Order (D.Ariz.1996)[Amended Order].

II. The Unauthorized Use of Dual Juries

A. Procedural Bar

It is well settled that before a claim may be reviewed by a federal habeas court, the factual and legal basis for that claim must be presented in state court so that the state has a reasonable opportunity to address the claim and correct any violation of federal rights. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). Where the claim involves a violation of state law, petitioners must specifically allege not only the state law violation, but the federal constitutional right they are asserting as well. See id.; see also Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982).

The district court did not find Smith's dual jury claim procedurally barred. See Smith v. Lewis, Amended Order at 7. This holding was correct. In his direct appeal to the Arizona Supreme Court, Smith argued that the use of dual juries was unauthorized by state law and that their use deprived him of his Fourteenth Amendment due process rights. Accordingly, Smith adequately presented this claim in state court.

Lambright presented identical arguments in his direct appeal. Like Smith, Lambright argued, clearly and specifically, that the use of dual juries was unauthorized under state law. He also clearly alleged a violation of his federal due process rights under the Fourteenth Amendment. He, therefore, specifically alleged both the state law violation and the federal constitutional right at issue, and the Arizona Supreme Court accordingly was afforded the opportunity to address the claim.

Despite the fact that Lambright and Smith made precisely the same dual jury arguments in their direct appeals, the district court found Lambright's claim procedurally barred. Curiously, the district court held that Lambright failed to raise the claim in state court. See Lambright v. Lewis, 932 F.Supp. at 1568. ³ The district court based its holding on the theory that the "factual and legal basis for a claim must be presented to the state court so that the state has a reasonable opportunity to address the claim...." Id. at 1568. Contrary to the holding of the district court, and contrary to what the state has argued before this court, however, the record makes it clear that Lambright adequately presented the claim to the state court in his direct appeal. The district...