Paradis v. Arave, 00-35464

• Decision Date: 05 March 2001
• Docket Number: No. 00-35464,00-35464
• Citation: 240 F.3d 1169
• Parties: (9th Cir. 2001) DONALD M. PARADIS, Petitioner-Appellee, v. A.J. ARAVE, Respondent-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1169

240 F.3d 1169 (9th Cir. 2001)

DONALD M. PARADIS, Petitioner-Appellee, v. A.J. ARAVE, Respondent-Appellant.

No. 00-35464

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 1, 2000

Filed March 5, 2001

[Copyrighted Material Omitted]

COUNSEL: L. Lamont Anderson, Deputy Attorney General, Boise, Idaho, for the respondent-appellant.

Edwin S. Matthews, Jr., Coudert Brothers, New York, New York, for the petitioner-appellee.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding. D.C. No.CV-95-0446-S-EJL

Before: William C. Canby, Jr. and A. Wallace Tashima, Circuit Judges, and Roslyn O. Silver, District Judge.^*

OPINION

TASHIMA, Circuit Judge:

Petitioner-Appellee Donald Paradis was convicted in Idaho state court of the murder of Kimberly Palmer and sentenced to death, but the State later commuted his sentence to life without parole. In November 1997, this court reversed in part the district court's dismissal of Paradis' second federal petition for writ of habeas corpus, and remanded the case for an evidentiary hearing on his claims that the prosecution breached its duties under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose several sets of notes taken by prosecutor Marc Haws. See Paradis v. Arave, 130 F.3d 385 (9th Cir. 1997). On remand, the district court held a three-day evidentiary hearing and subsequently conditionally granted the writ, unless the State retries Paradis within 120 days. See Paradis v. Arave, No. CV 95-446-S-EJL, 2000 WL 307458 (D. Idaho Mar. 14, 2000). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. S 1291, and we affirm.

I. BACKGROUND

A. Factual background

On the morning of June 22, 1980, Palmer's body was discovered lying face down in a shallow creek at the bottom of a steep ravine. The body was found 70 to 80 feet below an overturned blue and white Volkswagen van near Mellick Road, a steep mountain road near Post Falls in Kootenai County, Idaho. She was dressed in jeans, but no underpants, and was naked from the waist up, with her shirt underneath her. There was a cut in the front of the jeans and, through it, a corresponding cut in her skin near the labia. The body of Scott Currier, a friend of Palmer's, was found stuffed into a sleeping bag 20 or 30 feet from the same Volkswagen van.

At approximately 6:30 a.m. on the previous morning, a blue and white Volkswagen van carrying two or three men was seen ascending Mellick Road. Thirty minutes later three men, later identified as Paradis, Thomas Gibson, and Larry Evans, were seen descending the same road on foot, and they were repeatedly observed at various locations in Post Falls during the next 30 minutes.

In the evening of June 22, 1980, Detective George Elliott and Deputy Wesley Krueger of the Kootenai County Sheriff's Office transported the bodies of Palmer and Currier to Portland, Oregon, for an autopsy by Dr. William Brady, the Oregon State Medical Examiner. Elliott and Krueger arrived in Portland at approximately 9:00 a.m. on June 23. Except for stepping outside a few times for some fresh air and possibly once for a phone call, Elliott and Krueger were present throughout the autopsies of both Palmer and Currier. They brought the bodies back to Idaho on the same day, arriving in Idaho late that night.

In the morning of June 24, 1980, law enforcement personnel from Kootenai County, Idaho, and Spokane County, Washington, met at the Spokane County Sherriff's Office regarding Palmer's and Currier's deaths. Kootenai County Deputy Prosecutor Marc Haws attended the meeting, as did Elliott, but Krueger did not. Elliott was the only person at the meeting who had also been present at the autopsies.

Authorities investigating the deaths concluded that Currier was killed at Paradis' home in Spokane, Washington, and that his body was moved, but they concluded that Palmer was killed in Idaho at or near the site where her body was found.

B. Prior proceedings

Paradis and Gibson were tried jointly in Washington for Currier's murder and were acquitted in September 1980. They were tried separately in Idaho for Palmer's murder. Gibson was convicted of first-degree murder and sentenced to death. His federal petition for writ of habeas corpus was later granted by the district court and, while the appeal of that decision was pending, the parties reached a plea agreement under which Gibson pled guilty to second-degree murder.

Following Gibson's trial, Paradis was also tried and convicted in Idaho of the first-degree murder of Palmer and was also sentenced to death. His conviction and sentence were affirmed by the Idaho Supreme Court, see State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), which also affirmed the denial of state postconviction relief, see Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). Paradis then brought his first petition for writ of habeas corpus in federal court, which was denied after a six-day evidentiary hearing. See Paradis v. Arave, 667 F. Supp. 1361 (D. Idaho 1987), aff'd in part and rev'd in part, 954 F.2d 1483 (9th Cir. 1992), vacated and remanded, 507 U.S. 1026 (1993), aff'd on remand, 20 F.3d950 (9th Cir. 1994). The State subsequently commuted his sentence to life imprisonment without the possibility of parole.

C. Current proceedings

In 1995, Paradis brought a second petition for writ of habeas corpus in federal district court. The court dismissed the petition as successive or abusive, Paradis appealed, and this court reversed in part and remanded. See Paradis, 130 F.3d 385. We held that the district court had erred by treating Paradis' Brady claim as a sufficiency of the evidence claim. Id. at 392-93. We further held that his Brady claim was not barred as successive or abusive because (1) Paradis had shown cause and prejudice, see id. at 393-95, and, in the alternative, (2) Paradis had made a sufficient showing of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). See Paradis, 130 F.3d at 396-99. We remanded the case for an evidentiary hearing on the Brady claim. After holding a three day evidentiary hearing, the district court granted the writ, and this timely appeal followed.

Paradis' Brady claim is based on three sets of handwritten notes (Notes I, II, and III) taken by Haws, each apparently recording the medical opinions of Dr. Brady regarding Palmer's death; opinions that Dr. Brady held shortly after he performed the autopsy. See Paradis, 130 F.3d at 392. Notes I contain the following phrases, among others: "no time of death either"; "spoonful water in lungs -siphon prob dead when went in water"; "not sexually assaulted." Notes III contain the following phrases, among others: "may have been alive when went"; "no gross evid. sex. molest."; "wound outside genitalia -tear enlarged after death -cut under tear on jeans right before death"; "cut -1" long evid no bleeding"; "blood ear nose could -have immediately followed strangulation." On remand, Paradis conceded that Notes II were taken by Haws at Paradis' own trial and, therefore, are not Brady material.

We found that Paradis was prejudiced by the failure of the prosecution to disclose the notes, and that he had made a sufficient showing of actual innocence, for the following reasons.¹ First, the location of Palmer's death was important in at least two ways: (1) If Palmer did not die in Idaho, then the State of Idaho did not have jurisdiction to prosecute anyone for her murder; (2) Paradis claimed that both Palmer and Currier were murdered at Paradis' home in Spokane, Washington, at a time when Paradis was not there. Paradis, 130 F.3d at 392.

Second, Dr. Brady's assertion at Paradis' trial that Currier died before Palmer is undermined by his apparent inability to form such an opinion at the time of

the autopsy, as reflected by "no time of death either" in Notes I. Paradis, 130 F.3d at 396-97.

Third, Dr. Brady expressed the opinion at Paradis' trial that, although the cause of Palmer's death was manual strangulation, Palmer aspirated some water from the creek with her final agonal breaths. This claim supported the prosecution's theory that she was strangled at the site where her body was found, because she would have to have been alive and still gasping for air when she was placed in the water. See id. at 394. Dr. Brady's opinion was based on his observation at the autopsy that Palmer's lungs were heavy and filled with fluid. Id. However, we noted testimony from other experts to the effect that heavy, fluid-filled lungs are common after manual strangulation and do not allow an inference that water was aspirated. Id. at 397. In addition, the statements of Dr. Brady that are reflected in Haws' notes, namely, "spoonful water in lungs" and "dead when went in water," contradict his trial testimony that she aspirated water and that he had observed that her lungs were filled with fluid. Id.

Fourth, there was the complex issue of the labial tear. Had the tear been inflicted before Palmer died or shortly thereafter, it would have bled profusely (because the area is highly vascularized); if it did not bleed, it is overwhelmingly likely that it was inflicted at least one-half hour after Palmer died. Id. at 395. Because Paradis, Gibson, and Evans were only at the Mellick Road site for approximately one-half hour, if the wound were postmortem, that would show that they could not have killed her there. A luminol test (a highly sensitive chemical test) detected no traces of blood on Palmer's jeans, strongly suggesting that the wound did not bleed. See id. at 398. Dr. Brady, however, expressed the opinion (at Evans' trial) that the blood must have been washed away by rain and by the water in the stream. Id. But the notes show that Dr. Brady found blood on Palmer's ear and nose, and that the blood "could have immediately followed strangulation." Id. Because Palmer's head was lower in the water than the remainder of her...