Saiz v. Ortiz

• Decision Date: 21 December 2004
• Docket Number: No. 03-1292.,03-1292.
• Citation: 392 F.3d 1166
• Parties: Peggy Sue SAIZ, Petitioner-Appellant, v. Joe ORTIZ, Executive Director of the Colorado Department of Corrections, and Ken Salazar, Attorney General of the State of Colorado, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

392 F.3d 1166

Peggy Sue SAIZ, Petitioner-Appellant, v. Joe ORTIZ, Executive Director of the Colorado Department of Corrections, and Ken Salazar, Attorney General of the State of Colorado, Respondents-Appellees.

No. 03-1292.

United States Court of Appeals, Tenth Circuit.

December 21, 2004.

COPYRIGHT MATERIAL OMITTED

Walter L. Gerash, Law Office of Walter L. Gerash, Denver, CO, for Petitioner-Appellant.

Michael J. Milne, Senior Deputy District Attorney (Robert S. Grant, District Attorney, and Steven L. Bernard, Assistant District Attorney, with him on the brief), Adams County District Attorney's Office, Brighton, CO, for Respondents-Appellees.

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

STEPHEN H. ANDERSON, Senior Circuit Judge.

Peggy Sue Saiz was convicted of first-degree murder and sentenced to life imprisonment. Her conviction was affirmed on appeal. She then filed a federal habeas petition under 28 U.S.C. § 2254, which the federal district court granted. On appeal from that grant, we reversed and remanded the case to the district court to apply the correct standard of review under the Antiterrorism and Effective Death Penalty Act. On remand, applying the correct standard of review, the district court denied her relief. This appeal followed. For the following reasons, we affirm the district court's denial of this second habeas petition.

BACKGROUND

We take the following undisputed facts from our previous decision in this case:

On November, 9, 1990, [Saiz] shot her husband, George Saiz, four times in the back of the head while he slept. Afterwards, to simulate a burglary, she collected valuable items from their home and stored them at her mother's home and at the home of a man with whom she was having an affair. [Saiz] initially told police she had returned home to find her husband dead and the home burglarized. After repeated police interviews, [Saiz] admitted she shot and killed her husband but claimed she acted in self defense. [Saiz] asserted George Saiz had physically abused her over the course of their four-year marriage and, on the day of the homicide, had threatened to kill her.

A Colorado grand jury indicted [Saiz] on one count of first-degree murder. [Saiz] initially pled not guilty by reason of insanity and asserted a defense of impaired mental condition. The court ordered a pretrial examination pursuant to Colorado statute, and appointed Dr. Kathy Morall to examine [Saiz]. Dr. Morall issued two psychiatric reports, concluding in both that [Saiz] was legally sane when she shot and killed her husband. After a sanity trial, at which Dr. Morall and several defense experts testified, a jury determined [Saiz] was legally sane at the time of the shooting.

At her trial on the substantive charges, [Saiz] withdrew the impaired mental condition defense and argued she acted in self defense. The defense presented several medical and psychological expert witnesses, each of whom testified [Saiz] was a battered woman and had killed her husband in self defense. In rebuttal, the prosecution called Dr. William Hansen, who reviewed the test results relied upon by the defense's experts and testified that the psychological tests given were insufficient to support a conclusion that [Saiz] suffered from battered women's syndrome. The prosecution also called five physical therapists and three doctors who had treated or evaluated [Saiz] for job-related injuries in the year preceding the shooting. Each testified [Saiz] did not have unexplained bruises or other injuries, and did not appear to exhibit symptoms normally associated with battered women's syndrome. Over [Saiz's] objection, the trial court also allowed Dr. Morall to testify in rebuttal. Dr. Morall testified that, in her expert opinion as a psychiatrist, [Saiz] did not suffer from battered women's syndrome.

After admitting Dr. Morall as an expert, the court restricted [Saiz's] attempts to impeach Dr. Morall. Although permitting defense counsel to cross-examine the psychiatrist on her role in other trials and her possible bias in favor of the prosecution, the court did not allow [Saiz] to call in surrebuttal two criminal defense attorneys who had previously worked with the psychiatrist and would offer impeachment evidence in the form of opinion testimony concerning Dr. Morall's poor character and reputation for truthfulness.

Saiz v. Burnett, 296 F.3d 1008, 1010-11 (10th Cir.2002) (footnote omitted).

The jury found Saiz guilty of first-degree murder and the court sentenced her to life imprisonment without the possibility of parole. The Colorado Court of Appeals affirmed her conviction and sentence on direct appeal, People v. Saiz, 923 P.2d 197 (Colo.Ct.App.1996), cert. denied (Sept. 3, 1996), cert. denied, 519 U.S. 1069, 117 S.Ct. 715, 136 L.Ed.2d 634 (1997), addressing and rejecting the four claims she raised. The Colorado and United States Supreme Courts denied certiorari.

Saiz then filed a petition for a writ of habeas corpus raising the same four claims she had raised in her direct appeal. The federal district court granted her relief on one issue — whether the Colorado Court of Appeals properly addressed her argument that her Sixth Amendment right to confront witnesses had been violated when the trial court refused to permit Saiz to call in surrebuttal two criminal defense attorneys to impeach Dr. Morall's credibility. The Colorado court concluded it was error not to permit her to call those witnesses, but the error was harmless under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in part because Dr. Morall's testimony was "not crucial to the prosecution's case because other expert witnesses also testified that the results of [Saiz's] psychiatric tests suggested that she did not suffer from battered women's syndrome or post traumatic-stress disorder." Saiz, 923 P.2d at 204.

The federal district court found the state court's harmless error analysis to be "incorrect," Saiz v. McGoff, No. CIV. A. 98-D-68, 2001 WL 629663, at *4 (D.Colo. May 23, 2001), rev'd, 296 F.3d 1008 (10th Cir.2002), because it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" under 28 U.S.C. § 2254(d)(2). Having granted Saiz conditional release on the basis of that single issue, the district court did not address her other three arguments.

On appeal, we reversed the district court and remanded the case. We explained that "the AEDPA bars a federal habeas court from granting relief unless the state court decision involves either 1) application of an incorrect legal standard or principle; or 2) an objectively unreasonable application of the correct legal standard or principle." Saiz, 296 F.3d at 1012. We reversed the district court's grant of a writ in Saiz's favor, holding that the district court failed to apply the "objectively unreasonable" standard to the Colorado Court of Appeals' Chapman harmless error review.¹ On remand, the district court, applying the proper standard of review under the AEDPA, denied her application for a writ, holding that she was not entitled to relief on any of the four claims she asserted. That denial is before us.

Saiz raises three issues on appeal: (1) Saiz's rights under the Equal Protection Clause of the Fourteenth Amendment were violated because, during voir dire, the trial court permitted the prosecution to strike by peremptory challenges eight female and Hispanic potential jurors, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); (2) her Fifth Amendment privilege against self-incrimination was violated when the trial court erroneously allowed Dr. Morall to testify at Saiz's trial on the substantive charges as to opinions Dr. Morall derived from examining Saiz in connection with her sanity trial, in violation of Colo.Rev.Stat. § 16-8-107(1);² (3) her Sixth Amendment right to confrontation was violated when the trial court erroneously restricted her cross-examination and impeachment of Dr. Morall by (a) prohibiting cross-examination relating to Dr. Morall's involvement as a prosecution advisor in a highly publicized unrelated murder trial, (b) prohibiting cross-examination relating to a case where Dr. Morall was found in contempt of court and derelict in her duties as a forensic expert, and (c) prohibiting surrebuttal opinion testimony as to Dr. Morall's character and reputation for truthfulness.³

I. Batson Claim

The Supreme Court in Batson held that the Fourteenth Amendment's Equal Protection Clause prohibits the prosecution's use of peremptory challenges to exclude potential jurors on the basis of their race. Batson, 476 U.S. at 86, 106 S.Ct. 1712. The Court extended that same prohibition to peremptory challenges used to exclude potential jurors because of their gender. J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419. The Court articulated a three-part procedure to evaluate claims that the prosecution impermissibly used its peremptory jury challenges:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Batson, 476 U.S. at 96-100, 106 S.Ct. 1712); see also Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). The party objecting to the use of peremptory strikes, Saiz in this case, "carries the ultimate burden of persuasion." United States v. Castorena-Jaime, 285 F.3d 916, 928 (10th Cir.2002); see also Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

In this case, Saiz alleges that ...