Leavitt v. Arave, No. 01-99008.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPer Curiam
Citation371 F.3d 663
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.
Decision Date14 June 2004
Docket NumberNo. 01-99008.,No. 01-99009.
371 F.3d 663
Richard 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.
No. 01-99008.
No. 01-99009.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 10, 2003.
Filed June 14, 2004.

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L. LaMont Anderson, Deputy Attorney General, Capital Litigation Unit, Boise, ID, for the respondent-appellant/cross-appellee.

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.

PER CURIAM:


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.

BACKGROUND

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

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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 — Type O — 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.

STANDARD OF REVIEW

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.

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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).

DISCUSSION

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. We will thereafter consider the others.

I. THE INNOCENCE INSTRUCTION

The state argues that the district court created a new rule of law in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), when it concluded that instruction 12 unconstitutionally lowered the state's burden of proof. Leavitt responds that the state waived reliance on Teague, miscalculated the date of finality, and overlooked the fact that the controlling opinion of the United States Supreme Court is In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) — decided almost fifteen years before this case arose. Thus, in his view, the principle that he advocates (and that the district court adopted) is neither a new rule nor otherwise exceptionable because there is a reasonable likelihood that the jury understood the instructions as a whole to allow conviction based on proof less demanding than proof beyond a reasonable doubt.

If a state properly argues that the district court granted a habeas petition on the basis of a new rule of constitutional law that is Teague-barred, we must address the Teague issue first. Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); Horn v. Banks, 536 U.S. 266, 267, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (per curiam). Here, the state has not waived the issue and so we should conduct a Teague analysis. This means that we must determine when Leavitt's conviction became final; survey the legal landscape at that time to see whether the rule he advocates was dictated or compelled by existing precedent; and if not, consider whether that relief falls within one of two exceptions to nonretroactivity on habeas review. See Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (summarizing steps).

A

Whether the rule is "new" depends upon whether it was dictated by controlling precedent at the time when Leavitt's conviction became final in 1989, not when his sentence became final in 1992. This is because the guilt phase and sentencing phase were bifurcated, Gretzler v. Stewart, 112 F.3d 992, 1004 (9th Cir.1997), and 1989

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is when the Idaho Supreme Court rendered its guilt-phase decision and the time for petitioning for...

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20 practice notes
  • Haymon v. New York, No. 02-CV-6427L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 11, 2004
    ...trial. 3. The First Circuit and the Ninth Circuit explicitly have declined to decide the question of retroactivity. See Leavitt v. Arave, 371 F.3d 663, 683 n. 22 (9th Cir.2004); Horton v. Allen, 370 F.3d 75, 83 (1st 4. Crawford gives no indication that Richardson and its progeny have been a......
  • Arnold v. Runnels, No. 04-15194.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2005
    ...corpus. I. We review de novo the district court's decision to grant or deny a habeas petition under 28 U.S.C. § 2254. Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004). Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), a petitioner must demonstrate that ......
  • Leavitt v. Arave, No. 01-99008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2004
    ...petition for rehearing and for rehearing en banc is also DENIED. --------------- Notes: 1. This case is reported as Leavitt v. Arave, 371 F.3d 663 (9th Cir.2004), and we will put page references to the published opinion in PER CURIAM: Richard A. Leavitt, a State of Idaho prisoner under sent......
  • State v. Koslowski, No. 80427-3.
    • United States
    • United States State Supreme Court of Washington
    • June 18, 2009
    ...so that the dispatched officers might know whether they would be encountering a violent felon" (emphasis added)). 12. In Leavitt v. Arave, 371 F.3d 663 (9th Cir. 2004), also relied upon by the State, the court applied its understanding of the analysis to be used to determine what constitute......
  • Request a trial to view additional results
20 cases
  • Haymon v. New York, No. 02-CV-6427L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 11, 2004
    ...trial. 3. The First Circuit and the Ninth Circuit explicitly have declined to decide the question of retroactivity. See Leavitt v. Arave, 371 F.3d 663, 683 n. 22 (9th Cir.2004); Horton v. Allen, 370 F.3d 75, 83 (1st 4. Crawford gives no indication that Richardson and its progeny have been a......
  • Arnold v. Runnels, No. 04-15194.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 24, 2005
    ...corpus. I. We review de novo the district court's decision to grant or deny a habeas petition under 28 U.S.C. § 2254. Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004). Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), a petitioner must demonstrate that ......
  • Leavitt v. Arave, No. 01-99008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2004
    ...petition for rehearing and for rehearing en banc is also DENIED. --------------- Notes: 1. This case is reported as Leavitt v. Arave, 371 F.3d 663 (9th Cir.2004), and we will put page references to the published opinion in PER CURIAM: Richard A. Leavitt, a State of Idaho prisoner under sent......
  • State v. Koslowski, No. 80427-3.
    • United States
    • United States State Supreme Court of Washington
    • June 18, 2009
    ...so that the dispatched officers might know whether they would be encountering a violent felon" (emphasis added)). 12. In Leavitt v. Arave, 371 F.3d 663 (9th Cir. 2004), also relied upon by the State, the court applied its understanding of the analysis to be used to determine what constitute......
  • Request a trial to view additional results

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