Poland v. Stewart
| Citation | 151 F.3d 1014 |
| Decision Date | 24 August 1998 |
| Docket Number | No. 97-99004,97-99004 |
| Parties | , 98 Cal. Daily Op. Serv. 6170 Patrick POLAND, Petitioner-Appellant, v. Terry L. STEWART, * Director, Arizona Department of Corrections, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas A. Gorman, Phoenix, AZ, and Craig W. Soland, Brown & Bain, Phoenix, AZ, for petitioner-appellant.
Kent E. Cattani, Assistant Attorney General, Phoenix, AZ, for respondent-appellee.
Appeal from the United States District Court for the District of Arizona; Robert J. Kelleher, District Judge, Presiding. D.C. No. CV-90-01823-RJK.
Before: HUG, Chief Judge, and BROWNING and T.G. NELSON, Circuit Judges.
Arizona death row inmate Patrick G. Poland appeals the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
In 1980, Patrick Poland ("Patrick" or "Poland") and his brother, Michael Poland ("Michael"), were convicted in Arizona state court of two 1977 murders and sentenced to death. The convictions arose from the May 1977 hijacking and robbery of an armored car during which the two armored car guards, Russell Dempsey and Cecil Newkirk, were murdered. 1 The convictions were overturned by the Arizona Supreme Court on the basis of jury misconduct. State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982) (in banc ) (Poland I ).
When the case returned to the Arizona Superior Court ("trial court") following the reversal in Poland I, the newly elected county prosecuting attorney moved to dismiss the charges on the basis that there was insufficient evidence on which to proceed to trial. The trial court denied the motion and a subsequent motion for reconsideration.
Following denial of the motions, counsel for the Polands moved to disqualify the trial judge for bias. The motion was referred to another judge of the Arizona Superior Court, who found no bias and denied the motion.
The Polands were again convicted and sentenced to death. The convictions and sentences were upheld on appeal by the Arizona Supreme Court, State v. Patrick Poland, 144 Ariz. 388, 698 P.2d 183 (1985) (in banc ), and State v. Michael Poland, 144 Ariz. 412, 698 P.2d 207 (1985) (in banc ), and by the Supreme Court of the United States on certiorari, Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986).
Poland's first post-conviction relief ("PCR") petition was denied by the trial court, and the Arizona Supreme Court denied review without comment. Poland then filed a petition for a writ of habeas corpus in federal district court. While that was pending, he filed a second PCR petition in the trial court. The trial court held that a number of claims were precluded under the applicable state rules governing PCR proceedings. The claims in the second PCR petition became the basis of the amended habeas petition which the district court denied. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and § 2253, and we affirm.
The Polands were tried and convicted in the same state trial, but have filed separate federal habeas petitions. We previously decided the appeal of Michael Poland in Michael Poland v. Stewart, 117 F.3d 1094 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1533, 140 L.Ed.2d 683 (1998). The following issues raised by Patrick Poland were previously raised and rejected by this court in Michael's appeal: the vagueness of the pecuniary gain aggravating factor found in A.R.S. § 13-454(E)(5) 2 and the unforeseeable judicial expansion of the statute (Claims 13 and 14); the same trial judge presided during the retrial (Claim 7); and the unconstitutionality of lethal gas as a method of execution (Claim 17).
Our rulings on these issues in the Michael Poland case are now the law of the circuit and can only be changed by an en banc court or subsequent Supreme Court authority. See LeVick v. Skaggs Cos., Inc., 701 F.2d 777, 778 (9th Cir.1983). Because neither an en banc court nor the Supreme Court has undermined our rejection of these issues in the Michael Poland case, denial of Claims 7, 13, 14 and 17 (lethal gas) is mandated.
The apprehension and first trial of the Polands attracted much attention from the media in the relatively small Arizona town where they were tried. When the second trial came, several jurors were uncertain about their ability to judge the case on the facts, rather than on their views resulting from the publicity. Poland's challenges of four of these jurors for cause were denied by the trial court. Poland then used peremptory challenges to remove these four jurors. The trial court's ruling on the denials of the challenges for cause to two of the jurors were appealed to and upheld by the Arizona Supreme Court. Poland, 698 P.2d at 193.
Poland argues in Claim 8 that the trial court's denials of his challenges for cause were "manifestly erroneous" and unconstitutionally impaired his right to exercise his peremptory challenges. Because we conclude that Poland has failed to either argue or show any prejudice arising from the alleged error, we need not determine whether the denials in fact violated his constitutional rights. 3
Poland is not entitled to habeas relief based on alleged trial error unless he can establish that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). This requires Poland to show that the trial court's denials of the challenges for cause "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 638, 113 S.Ct. 1710.
Poland does not argue that the jury as finally constituted was not impartial, or that the loss of the peremptories forced him to accept a biased juror. He fails to even contend that any prejudice resulted from the denial of the challenges or that the denial "had substantial and injurious effect or influence in determining the jury's verdict." He has therefore failed to meet his burden of showing actual prejudice, and Claim 8 must be denied.
Poland's Claims 2 through 6 (relating generally to alleged prosecutorial misconduct and the trial court's refusal to dismiss the case), a part of 8, 9 (alleging the reversal in Poland I was an implied acquittal of the death penalty), 10 (arguing that the prosecution had abandoned the pecuniary gain aggravating factor at sentencing) and 16 (claiming ineffective assistance of counsel at sentencing) were denied by the district court as procedurally defaulted. Poland acknowledges, as to all but the part of Claim 8 discussed above, and Claim 16, 4 that these claims were not raised in state court until his second PCR petition.
Poland argues, however, that Arizona's procedural rules are not consistently and regularly followed, that the "fundamental error" review of the Arizona Supreme Court constitutes a fair presentation of the issue to that court, and that the claimed ineffectiveness of his counsel on his first PCR petition can constitute cause for his failure to raise these claims earlier. As with the other claims decided in the Michael Poland case, these legal arguments were already addressed and rejected by this court in that case. Consideration of those issues is foreclosed here, for the reasons expressed above in Section II-A.
Poland further argues that the trial court improperly applied Arizona Rule of Criminal Procedure 32.2 in holding these claims defaulted, since the conditions for inferring waiver under the rule were not satisfied. Federal habeas courts lack jurisdiction, however, to review state court applications of state procedural rules. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.) ( that a petitioner may not "transform a state law issue into a federal one merely by asserting a violation of due process," and that "alleged errors in the application of state law are not cognizable in federal habeas corpus" proceedings), cert. denied, --- U.S. ----, 118 S.Ct. 208, 139 L.Ed.2d 144 (1997). Therefore, the district court did not err in rejecting Poland's claims 2 through 6, a portion of 8, and 9 and 10 as procedurally defaulted. 5
Poland filed his first PCR petition in the trial court in 1987. One of the claims raised was "(28) Appellant was denied effective assistance of counsel throughout the sentencing phase of the proceedings." After an evidentiary hearing, the trial court denied the petition:
The Court concludes and orders as follows:
1. Regarding the petition of Patrick G. Poland:
There are no issues raised in the petition or subsequently filed pleadings and memoranda or at the hearing which either were not 1) "finally adjudicated on the merits on appeal" (Arizona Rules of Criminal Procedure, Rule 32.2(a)(2)) or "knowingly, voluntarily and intelligently not raised at trial, on appeal...." (Arizona Rules of Criminal Procedure, Rule 32.2(a)(3)).
The claims raised have been waived (Rule 32.2 and 32.10). The relief requested is precluded. (Rule 32.2).
The State's Motion to Dismiss on waiver and preclusion grounds is granted.
The Petition for Post-Conviction Relief of Patrick G. Poland is dismissed.
Poland filed a second PCR petition in 1993. The trial court summarily rejected the bulk of...
To continue reading
Request your trial
-
Pirtle, Matter of
...Other jurisdictions have held that capital punishment by lethal injection is not cruel and unusual punishment. Poland v. Stewart, 151 F.3d 1014 (9th Cir.1998); Poland v. Stewart, 117 F.3d 1094 (9th Cir.1997); People v. Holt, 15 Cal.4th 619, 937 P.2d 213, 63 Cal.Rptr.2d 782 (1997); Woolls v.......
-
Poland v. Stewart
...ORDER The Opinion filed on August 6, 1998, and amended on August 24, 1998, is amended as follows: 1. On slip opinion pages 9309-10 (151 F.3d 1014, 1017), delete Section II.B in its entirety and replace with the The apprehension and first trial of the Polands attracted much attention from th......