Paradis v. Arave, 96-35670

• Decision Date: 20 November 1997
• Docket Number: No. 96-35670,96-35670
• Citation: 130 F.3d 385
• Parties: 97 Cal. Daily Op. Serv. 8756, 97 Daily Journal D.A.R. 14,209 Donald M. PARADIS, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 385

130 F.3d 385

97 Cal. Daily Op. Serv. 8756, 97 Daily Journal

D.A.R. 14,209

Donald M. PARADIS, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary, Respondent-Appellee.

No. 96-35670.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 25, 1997.

Decided Nov. 20, 1997.

Edwin S. Matthews, Jr., Coudert Brothers, New York, New York, and William L. Mauk, Mauk & Smith, Boise, Idaho, for petitioner-appellant.

Lynn E. Thomas, Solicitor General, Boise, Idaho, for respondent-appellee.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV 95-00446-S-EJL.

Before: CANBY and TASHIMA, Circuit Judges, and SILVER, ^* District Judge.

TASHIMA, Circuit Judge:

I. OVERVIEW

Donald M. Paradis was convicted of the murder of Kimberly Palmer in Idaho and sentenced to death. In November 1995, before his second petition for post-conviction relief in the Idaho state courts had been decided, Paradis filed his second petition for habeas corpus relief in federal district court. In January 1996, Paradis discovered new evidence. His motion to augment the record and for leave to file a supplemental brief before the Idaho Supreme Court was denied. In May 1996, the Governor of Idaho commuted Paradis' sentence of death to life imprisonment without the possibility of parole. The federal district court dismissed Paradis' amended second petition (the "second petition"). We now affirm in part, reverse in part, and remand.

II. FACTUAL BACKGROUND

The underlying facts are portrayed in detail in State v. Paradis, 106 Idaho 117, 676 P.2d 31 ( 1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984) ("Paradis I "), and Paradis v. Arave, 667 F.Supp. 1361 (D.Idaho 1987) ("Paradis II "), aff'd in part and rev'd in part, 954 F.2d 1483 (9th Cir.1992) ("Paradis III "), vacated and remanded, 507 U.S. 1026, 113 S.Ct. 1837, 123 L.Ed.2d 463 (1993), aff'd on remand, 20 F.3d 950 (9th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995).

On June 19, 1980, Kimberly Palmer ("Palmer") and Scott Currier ("Currier") departed from Palmer's Spokane, Washington, residence for a camping trip to Idaho in a blue and white Volkswagen van. At around 12:45 a.m. on June 21, Currier and Palmer checked into the Paul Bunyan Motel in Spokane, around the corner from Paradis' residence, but checked out shortly afterwards.

About 6:30 a.m., on June 21, Ruth Jones witnessed a blue and white Volkswagen van with two or three men ascending Mellick Road, a steep mountain road in Post Falls, Idaho. Thirty minutes later, she saw three men coming from the area of Mellick Road by foot. During the next 30 minutes, the three men were repeatedly observed in Post Falls. They were identified as Paradis, Thomas Gibson and Laurence Evans.

In the morning of June 22, a one-car rollover was reported to the Post Falls police, who discovered the blue and white van surrounded by various of its former contents. Palmer's body was found 70 to 80 feet from the van, lying face down, slightly immersed in a creek, and dressed only in a pair of unzipped jeans. Currier's body was later discovered in the brush near the van, stuffed in a sleeping bag.

III. PROCEDURAL HISTORY

Paradis was convicted of the first-degree murder of Palmer in Idaho state court in Kootenai County and sentenced to death. ¹ His conviction and death sentence were affirmed on automatic appeal by the Idaho Supreme Court. Paradis I, 106 Idaho 117, 676 P.2d 31.

Paradis' first petition for state post-conviction relief was denied. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). He then brought a federal habeas petition, pursuant 28 U.S.C. § 2254, in which relief was denied. Paradis II, 667 F.Supp. 1361. The claims in his first federal petition, except for those rendered moot by the commutation of his death sentence, were: (1) failure to preserve and disclose exculpatory evidence by permitting the cremation of Palmer's body and losing items from Paradis' Spokane residence; (2) insufficiency of the medical evidence to support the theory of Palmer's death in Idaho, which gave jurisdiction to Idaho; (3) insufficient circumstantial, non-medical evidence to find Paradis guilty beyond a reasonable doubt of Palmer's murder; (4) double jeopardy and violation of due process for permitting evidence of Currier's death; (5) ineffective assistance of counsel; (6) prosecutorial misconduct; and (7) improper venue. All claims were denied on their merits, except for the last two which were procedurally defaulted.

On June 27, 1989, Paradis filed a second petition for state post-conviction relief, alleging that: (1) counsel assisted him ineffectively due to a conflict of interest; and (2) newly-discovered evidence establishes that Palmer was not killed in Idaho. On August 25, 1994, the state district court dismissed the second petition as meritless and Paradis appealed. After he received the previously-undisclosed documents generated by the Kootenai County prosecutor, Paradis moved, on January 17, 1996, to augment the record and for leave to amend the briefs, pursuant to Idaho Appellate Rule 44. The motion was denied. The dismissal of Paradis' second state petition was affirmed on February 27, 1996, for want of timeliness under Idaho Code § 19-2719. ² Paradis v. State, 128 Idaho 223, 912 P.2d 110 (1996).

On May 17, 1996, the Clemency Commission of the State of Idaho recommended that Paradis be granted clemency and the Governor of Idaho commuted Paradis' death sentence to life imprisonment without the possibility of parole.

Meanwhile, on November 14, 1995, Paradis had filed his second federal petition for habeas relief. On January 16, 1996, he filed a motion to conduct discovery with respect to the previously-undisclosed documents, which was subsequently renewed with a motion for leave to amend the petition. On April 1, 1996, the motion to conduct discovery was denied and the motion for leave to amend the second petition was granted. As amended, the second petition alleged that: (1) counsel suffered from a conflict of interest; (2) the medical evidence shows that Palmer was not murdered in Idaho; (3) newly-available witnesses contradict the theory that Palmer was murdered in Idaho; and (4) the prosecution failed to disclose to the defense exculpatory evidence in its possession (the "Brady claims").

The district court dismissed the second petition as successive or abusive. Paradis timely appeals and the district court issued a certificate of probable cause authorizing this appeal.

IV. DISCUSSION

A.

1.

We have jurisdiction to review a dismissal of a petition for a writ of habeas corpus pursuant 28 U.S.C. § 2253 (1951). ³

We review the district court's dismissal of a habeas petition as abusive or successive for abuse of discretion. Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996). "The district court abuses its discretion if the court's decision is based on 'an erroneous legal conclusion or on a clearly erroneous finding of fact.' " Id. (quoting Campbell v. Blodgett, 997 F.2d 512, 516 (9th Cir.1992)). Pursuant to 28 U.S.C. § 2254(d), the factual findings of the state court are presumed correct. Poland v. Stewart, 117 F.3d 1094, 1103 (9th Cir.1997). We may affirm the district court on any ground fairly supported by the record. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996).

2.

Under Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, the answer to a habeas petition "shall state whether the petitioner has exhausted his state remedies." A petition containing any claims not exhausted in state court must be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). But failure to exhaust state remedies does not deprive appellate courts of jurisdiction. Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 1673-74, 95 L.Ed.2d 119 (1987). When the state remains silent, the courts of appeals "exercise discretion in each case to decide whether the administration of justice would be better served by insisting on exhaustion or by reaching the merits of the petition forthwith." Id. In that circumstance, the court may "consider it [the exhaustion requirement] waived if the interests of comity, federalism and justice would be served." Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir.1990). See also Paradis III, 954 F.2d at 1488.

The respondent Warden ("State") has informed neither the district court nor this court whether Paradis has exhausted his state remedies. Paradis brought his unsuccessful motion to augment his petition and conduct discovery in the light of new evidence before the Idaho Supreme Court under Idaho Appellate Rule 44, a discretionary rule requiring extraordinary circumstances. The new evidence gave rise to new claims which Paradis included in his second petition. The second petition therefore does not comport with the total exhaustion requirement of Rose v. Lundy.

However, we consider it waived because a resulting third petition for state post-conviction relief would not serve the interests of comity, federalism and justice for several reasons. First, to reject Paradis' claims for want of total exhaustion would strain judicial resources of the state and the federal courts even further in a criminal case that has occupied the courts since 1980. Second, it is in the interest of justice to expedite the case at hand for the sake of finality. Finally and most importantly, Paradis, were he not granted relief by the State, would be effectively barred from ever bringing his petition for habeas relief based on the newly-discovered evidence in federal courts pursuant 28 U.S.C. § 2244(d)(1)(D) (1996), as added by the AEDPA. As further discussion will reveal, such a development would be inequitable and not in the interest of...