Poland v. Stewart

• Decision Date: 24 June 1997
• Docket Number: No. 95-99022,95-99022
• Citation: 117 F.3d 1094
• Parties: 97 Cal. Daily Op. Serv. 4854, 97 Daily Journal D.A.R. 7958 Michael K. POLAND, Petitioner-Appellant, v. Terry STEWART, * Director, Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1094

117 F.3d 1094

97 Cal. Daily Op. Serv. 4854, 97 Daily Journal

D.A.R. 7958

Michael K. POLAND, Petitioner-Appellant, v. Terry STEWART, ^* Director, Arizona Department

of Corrections, Respondent-Appellee.

No. 95-99022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 23, 1996.

Decided June 24, 1997.

Patrick E. McGillicuddy, 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; Samuel P. King, District Judge, Presiding. D.C. No. CV-90-08122-SPK.

Before: HUG, Chief Judge, BROWNING and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Arizona death row inmate Michael K. Poland appeals the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

I FACTS AND PROCEDURAL HISTORY

Michael Poland (Poland) and his brother Patrick (Patrick) Poland were convicted in Arizona state court in 1980 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 drivers were murdered. 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 ). ¹

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.

After 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.

At the time of the second state prosecution, the Polands were in federal penitentiaries serving their sentences. They were transferred to the custody of the State of Arizona where they have remained. After the second state prosecution, the Polands were again convicted of murder 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, as amended, 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 all but three 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.

II EFFECT OF NEW LEGISLATION

The parties have briefed and argued issues related to the applicability of certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 to this case. However, the Act does not apply to this case. See Jeffries v. Wood, 114 F.3d 1484 (9th Cir.1997) (holding the Act does not apply to cases filed prior to the Act's effective date).

III ISSUES RESOLVED ON THE MERITS

A. State Jurisdiction to Carry out the Sentence

Relying on the Supremacy Clause, separation of powers, and Amendments V, VIII and XIV to the Constitution, Poland contends that he cannot be executed by Arizona until his federal sentence has "expired." ² He cites Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), for its general holding that the court which takes control of the subject matter of the litigation is to be "permitted to exhaust its remedy to attain which it assumed control." Id. at 260, 42 S.Ct. at 310.

However, Ponzi does not support Poland's premise. Ponzi addressed the question of transfer of a prisoner from one sovereign to another for purposes of trial. The Supreme Court held that the Attorney General could yield custody of a federal prisoner for purposes of trial in a state court. It by no means implied that the Attorney General's authority was limited to a short release for trial. The Court's decision rested on each sovereign's interest in vindicating its laws and the fact that the question was committed to the discretion of the sovereigns:

[A defendant] may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against Id. (citation omitted).

it. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it, and of its representatives with power to grant it.

Thus, the Attorney General retains broad powers over prisons and prisoners. Id. at 261-263, 42 S.Ct. at 311-12. The Attorney General may, at her discretion, waive the federal sovereign's strict right to exclusive custody of a prisoner and transfer a federal prisoner to a state sovereignty to enable the state to subject the prisoner to conviction for a crime against it. Id. at 260-61, 42 S.Ct. at 310-11. See also United States v. Warren, 610 F.2d 680, 685 (9th Cir.1980) (citing Ponzi, 258 U.S. at 261-62, 42 S.Ct. at 311) ("[T]he sovereign with priority of jurisdiction, here the United States, may elect under the doctrine of comity to relinquish it to another sovereign. This discretionary election is an executive, and not a judicial, function." The power and discretion to practice comity in the federal system is vested in the Attorney General.).

The State suggests that Poland lacks standing to challenge the Attorney General's decision to leave him in state custody. This contention has some merit. In Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.1943), we said: "[A]s pointed out by the Supreme Court in [Ponzi ] the arrangement made between the two sovereigns, the state and federal governments, does not concern the defendant who has violated the laws of each sovereignty and he cannot in his own right demand priority for the judgment of either." See also Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) ("It is well recognized rule of law that a person who has violated the criminal statutes of both the Federal and State Government may not complain of the order in which he is tried or punished for such offenses.").

Whether or not the issue is analyzed as one of standing, it is clear that Poland's contention has no merit. It is the Attorney General's job to exercise the authority of the United States over federal prisoners. If she chooses to leave Poland in the custody of the State of Arizona, neither Poland nor this court is in a position to say she lacks the authority under the Constitution to do so. "The penitentiary is not a place of sanctuary." Ponzi, 258 U.S. at 264, 42 S.Ct. at 312.

B. The Pecuniary Gain Aggravating Circumstance

Poland argues that Arizona's pecuniary gain aggravating factor was too vague to give him notice that it would apply to his conduct in committing murder in the course of a robbery. The State responds that the purpose of aggravating circumstances is to guide and limit the discretion of the sentencer, not to inform the defendant of the reach of the aggravating factor prior to his commission of the crime. The due process notice function is fulfilled by the provisions of the homicide statute itself, the argument goes.

However, we need not decide this issue, as Poland is entitled to no relief on the basis of his vagueness challenge to the pecuniary gain aggravating factor. Since this claim involves no First Amendment interests, the statute "is judged on an as-applied basis," Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988), and should be interpreted in light of its plain language. United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980). ³

At the time of the murders in 1977, the two aggravating factors relating to pecuniary gain provided:

4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

A.R.S. § 13-454(E)(4),(5) (1977). ⁴

In 1977, the Arizona Supreme Court had not yet construed the meaning of the pecuniary gain factors. The trial court refused to find the existence of the pecuniary gain factor in Poland's case at the time of the first sentencing, saying that it applied only to murders for hire. Shortly thereafter, the Arizona Supreme Court rejected this reading of the statute, implicitly in State v. Madsen, 125 Ariz. 346, 609 P.2d 1046, 1053 (1980), and explicitly four months later in State v. Clark, 126 Ariz. 428, 616 P.2d 888, 896 (1980).

In Madsen, the defendant had been sentenced to death for the murder of his wife. The trial court found the pecuniary gain circumstance to exist based on the defendant's expectation of the receipt of money from insurance policies on his wife's life. The Arizona Supreme Court set aside the death penalty on the basis of insufficient evidence that the insurance proceeds led Madsen to kill: "To comply with the statute, the receipt of the money must be a cause of the murder, not a result of the murder." 609 P.2d at 1053.

In Clark, the court rejected the appellant's contention that the circumstance applied "only to the 'hired gun' situation." 616 P.2d at 896. It held that the expectation of financial gain as...