Leavitt v. Arave

Decision Date14 June 2004
Docket NumberNo. 01-99009.,No. 01-99008.,01-99008.,01-99009.
Citation383 F.3d 809
PartiesRichard A. LEAVITT, Petitioner-Appellee, v. Arvon J. ARAVE, Warden, Idaho State Correctional Institution, Respondent-Appellant. Richard A. Leavitt, Petitioner-Appellant, v. Arvon J. Arave, Warden, Idaho State Correctional Institution, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

David Z. Nevin, Nevin, Herzfeld, Benjamin & McKay, LLP, Boise, ID; Andrew H. Parness (argued), Ketchum, ID, for the petitioner-appellee/cross-appellant.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-93-00024-S-BLW.

Before KOZINSKI, FERNANDEZ, and RYMER, Circuit Judges.




In light of the decision of the United States Supreme Court in Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), we amend our opinion filed on June 14, 2004, and commencing at slip op. 77731 as follows:

(1) We revoke the introductory paragraph and subparagraph A under part VI SENTENCING ISSUES, which appear at slip op. 7818(688), and substitute the following in their place:

Leavitt also attacks his sentencing on various grounds. We reject all of them.

A. Ring v. Arizona.

As is well known by now, in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court determined that a capital sentencing scheme wherein the judge decides aggravating facts without a jury is unconstitutional. Id. at 609, 122 S.Ct. at 2443. Leavitt asserts that Ring is retroactive to cases on habeas corpus review, but the Supreme Court has declared otherwise. See Schriro v. Summerlin, ___ U.S. ___, ___, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004). Thus, this claim must fail.

(2) We revoke the last sentence of part VIII, which appears at slip op. 7829(694) and substitute the following in its place:

Therefore, we remand these ineffective assistance of counsel issues to the district court for further proceedings.

(3) We revoke the CONCLUSION, which appears at slip op. 7829(694), including footnote 41 thereof, and substitute the following in its place:


Leavitt is not entitled to habeas corpus relief as far as his conviction and the sentencing issues disposed of in this opinion are concerned. However, he is entitled to have the district court consider his claim of ineffective assistance of counsel at his second sentencing hearing.

Thus, we AFFIRM on all issues raised in Leavitt's cross appeal, other than the second sentencing hearing ineffective assistance of counsel issues, and REVERSE on the State's appeal. We REMAND so that the district court can consider the issues regarding Leavitt's claim of ineffective assistance of counsel at the second sentencing hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

With the above amendments, A.J. Arave's petition for rehearing is DENIED. Richard A. Leavitt's petition for rehearing and for rehearing en banc is also DENIED.



Richard A. Leavitt, a State of Idaho prisoner under sentence of death, brought a petition for habeas corpus in the district court. 28 U.S.C. § 2254. He filed a myriad of attacks on his conviction and sentence, ranging from alleged evidentiary errors through instructional errors and onto attacks on the Idaho death penalty scheme. He also asserted ineffective assistance of counsel. The district court granted habeas corpus relief on one claim: the assertion that a burden of proof instruction violated Leavitt's due process rights. However, it denied relief as to all of his other claims.

The State of Idaho appeals the former, and Leavitt appeals the latter. We reverse as to the former, affirm as to all of the latter, with the exception of an ineffective assistance of counsel claim, and remand for further proceedings.


In the small town of Blackfoot, Idaho, on July 17, 1984, the victim of this brutal crime, Danette Elg, was viciously attacked in her own bedroom by a knife-wielding assailant. The relentless and merciless assault took place on her waterbed and with such implacable force that the bed itself was punctured and torn, while the victim sustained numerous cuts and slashes as she fought for her life. She was also stabbed multiple times: One thrust caused the knife to enter her right lung, another the right side of her heart, still another her left lung, and others penetrated her stomach, her chest cavity, and her neck. One even went through her eye and into her brain. Another exceedingly peculiar and unique wound inflicted during this attack was a cut made by the attacker through which he then removed her sexual organs. He did that in a manner that showed that he had some knowledge of female anatomy, for it was done in a manner that is difficult to accomplish.

The evidence pointing to Leavitt was powerful, if circumstantial — he was not caught redhanded, nor did he confess. Unfortunately, the victim's body was not found for several days which caused the destruction of some evidentiary markers, but gave rise to others.

On the night of July 16, the victim had been severely frightened and shaken when a prowler tried to enter her home. She called the emergency 911 number and the police came, but they found nothing other than signs of attempted entry and a petrified young lady, who thought that Leavitt was the culprit. They then searched the area and the town but, alas, failed to find Leavitt. Strangely enough, during the period between the murder and the discovery of the body with Leavitt's help, he became exceedingly "interested" in the victim's whereabouts. He finally obtained permission to enter the house with the police and discovered the body. Another strange aspect of the case was that a person supposedly named Mike Jenkins also called the police a couple of times during that period and showed knowledge of details of the crime that only the killer himself would know. Mike Jenkins was not known in Blackfoot and was not heard of thereafter. Leavitt, however, is adept at disguising his voice on the telephone, and could even fool his own wife when he did so.

What else? On the very night of the killing, Leavitt suffered a severe cut to his finger, for which he was treated in an emergency room. The killer was also wounded and left behind his blood — TypeO — which was mixed with the blood of his hapless victim — Type A. Of all the possible suspects, the only likely source of the Type O blood was Leavitt himself.

How could that damning connection be explained? Well, said Leavitt, he had somehow cut his hand on a fan at home — a story that was shown to be a lie. At trial he changed that to a story that he had really sustained the cut while preventing his wife from committing suicide. And the crime scene blood? Leavitt could not, at first, imagine how his blood could have been found there, but he had an epiphany by the time of trial. At trial, he managed to recall that a week before the killing he had a nosebleed in the victim's bedroom. That, supposedly, resulted in his blood being mixed with hers when she was killed on her bed a week later. It also supposedly explained how his blood was elsewhere in her room — on the walls and at the window, and even on her underclothes — he wiped his nose on them — as well as on shorts that she had worn between the date of the "nosebleed" and the date of her death. Along the way, Leavitt also tried to send his wife a letter from jail in which he sought to have her memorize a story he had concocted, which would, not surprisingly, tend to exculpate him.

Neither the jury, nor any court which has since reviewed the evidence in this case, has been impressed with Leavitt's stories. The jury found him guilty, and an Idaho judge sentenced him to death. The Idaho Supreme Court affirmed and denied post-conviction relief.1 But the district court found error in the jury instructions and issued the writ of habeas corpus, and these appeals followed.


The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(c).

We review the district court's decision to grant or deny a petition for habeas corpus de novo. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.1996). "To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies." Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002). As usual, clear error review is "significantly deferential," and "we must accept the district court's factual findings absent a `definite and firm conviction that a mistake has been committed.'" Id. (quoting United States v. Syrax, 235 F.3d 422, 427 (9th Cir.2000)). Further, "[a]lthough less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are `not fairly supported by the record.'" Id. (quoting Bean v. Calderon, 163 F.3d 1073, 1087 & n. 3 (9th Cir.1998)). Finally, we "may affirm on any ground supported by the record even if it differs from the rationale of the district court." Martinez-Villareal, 80 F.3d at 1305. Because the First Amended Habeas Corpus petition was filed before April 24, 1996, the Antiterrorism and Effective Death Penalty Act does not apply to this case. See Reutter v. Crandel, 109 F.3d 575, 577 (9th Cir.1997).


While we are faced with numerous issues, if the district court properly granted habeas corpus on the innocence instruction issue, the others fall by the wayside. Thus, we will first take up the state's appeal of the decision of that issue....

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