Poland v. Stewart
| Citation | 169 F.3d 573 |
| Decision Date | 01 March 1999 |
| Docket Number | No. 97-99004,97-99004 |
| Parties | 1999 Daily Journal D.A.R. 1951 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, Arizona, and Craig W. Soland, Brown & Bain, Phoenix, Arizona, for the petitioner-appellant.
Kent E. Cattani, Assistant Attorney General, Phoenix, Arizona, for the 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, BROWNING and T.G. NELSON, Circuit Judges.
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 following:
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 rulings on the denials of the challenges for cause as 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 3 were "manifestly erroneous" and unconstitutionally impaired his right to exercise his peremptory challenges in violation of the Sixth Amendment. 4 We disagree.
The loss of peremptory challenges does not constitute Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (citations omitted). "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id.
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. We conclude that no violation of Poland's Sixth Amendment right to an impartial jury occurred. See id. The district court correctly denied Claim 8.
2. On slip opinion page 9310 , renumber footnote 4 as footnote 5.
3. On slip opinion page 9311 (151 F.3d at 1019), renumber footnote 5 as footnote 6.
4. On slip opinion pages 9312-17 , delete Section IV.A in its entirety and replace with the following:
Poland filed his first PCR petition in the state 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:
It appears to the Court that the State's waiver/preclusion analysis is sound. The position of the State regarding waiver and preclusion as set forth in the "Reply (Motion to Dismiss)" at pages 2-5, in State of Arizona v. Patrick Gene Poland, filed September 28, 1988, ... is adopted by the Court.
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 the claims as precluded. As to present Claim 16, it said:
Claim 16: The petitioner once again raises the issue of ineffective assistance of counsel-trial counsel, appellate counsel and counsel on the first petition for post-conviction relief. With respect to the attorneys that handled this case at trial and sentencing and on appeal, these issues have already been presented to the court and are thereby precluded. Rule 32.2(a), (c) and Rule 32.10 ARCrim.P. Petitioner's Memorandum of Points and Authorities is replete with allegations that every lawyer that ever touched this case is ineffective for failing to raise each and every issue that could ever come to the mind of a lawyer during the course of fifteen years of litigation without respect to the professional judgment of the attorneys involved, effective advocacy or the viability of any of the issues. This claim is frivolous in the extreme, is unsupported by the record and flies in the face of any concept of judicial economy or the finality of judgments. The claim is without merit.
The State argues, and the district court found, that Poland's ineffective assistance of counsel claim was procedurally barred by the trial court's rulings. We agree.
"When a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice." Wood v. Hall, 130 F.3d 373, 376 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1818, 140 L.Ed.2d 955 (1998). See also Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A state procedural rule constitutes an adequate bar to federal court review if it was "firmly established and regularly followed" at the time it was applied by the state court, Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), and is considered independent if it is not interwoven with federal law or dependent upon a federal constitutional ruling. See Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The mere fact that a federal claimant failed to abide by a state procedural rule does not, however, in and of itself, prevent review of the federal habeas claim: "The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).
In the present case, the trial court found Poland's ineffective assistance of counsel claim to be barred under Arizona Rule of Criminal Procedure 32.2. 7 As discussed The version of Rule 32.2 in effect in 1988, which applied to both Poland's first and second PCR petitions, provided in relevant part:
above in Section III, Arizona's procedural rules are consistently and regularly followed and are adequate to bar federal review. The only question, then, is whether the trial court "actually ... relied on the procedural [rule] as an independent basis for its disposition of the case." Id. To answer this question, we must closely examine the rule relied on by the state trial court, Ariz. R.Crim. P. 32.2.
(a) Preclusion. A petitioner will not be given relief under this rule based upon a ground:
....
(2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding.
(3) Knowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding.
....
(c) Inference of Waiver. The court may infer from the petitioner's failure ... to raise any ground then available to him in a previous Rule 32 proceeding ... that he knowingly, voluntarily and intentionally relinquished the right to do so.
Thus, under Rule 32.2, a claim is barred in two different situations. First, under subsection (a)(2), a claim is barred if it was previously presented to the Arizona Supreme Court, or to the trial court in a prior PCR proceeding. We will refer to subsection (a)(2)'s bar to consideration as "preclusion."
Second, under subsection (a)(3), a claim is barred if it was "knowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding." We will refer to subsection (a)(3)'s bar to consideration as "waiver."
The distinction between a claim that is "precluded" under subsection (a)(2) and one that has been "waived" under subsection (a)(3) becomes important in federal habeas. A claim that has been found to be "precluded" under subsection (a)(2) appears to be a classic exhausted claim and may therefore be subject to consideration in federal habeas. See Ceja v. Stewart, 97 F.3d 1246, 1252-53 (9th Cir.1996) ().
In contrast, a claim that has been "waived" under subsection (a)(3) is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.
With the distinction between "waiver" and "preclusion" in mind, we turn to an analysis of the effect of the two PCR orders in the present case.
The trial court's 1994 ruling on the ineffective assistance of counsel claim raised in Poland's second PCR petition can be separated into two parts. In the first part, the court mentions ineffective assistance of co...
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