Carriger v. Lewis

971 F.2d 329, 1992 WL 174385

Opinions

FARRIS, Circuit Judge:

In 1978, Paris Hoyt Carriger was convicted of robbery and first-degree murder. After exhausting his state appeals, he sought a federal writ of habeas corpus. A panel of the Ninth Circuit denied the writ, see Carriger v. Lewis, 948 F.2d 588 (9th Cir. 1991). We voted to re-hear the case en banc. We now vacate the panel’s decision, but affirm the district court’s denial of the writ.

FACTS

On March 13, 1978, Robert Shaw’s jewelry store was robbed. The robber tied Shaw’s hands behind his back, and repeatedly struck his skull with an iron skillet. Shaw suffered a crushed skull, but was still alive when he was strangled with his own necktie. The robber departed the store with stolen jewelry.

Two days later, Arizona indicted Carri-ger for the robbery and first-degree murder of Shaw. On July 28, 1978, Carriger was found guilty on both counts and sentenced to 99-100 years imprisonment for the robbery, and death for the murder.

Carriger dismissed his trial counsel, obtained new counsel, and appealed his conviction and sentence. The Arizona Supreme Court affirmed. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Pursuant to Az. R.Crim.P. 32, Carriger then filed a petition for post-conviction relief. On appeal, the Arizona Supreme Court held that Carriger was entitled to a new sentencing hearing because Carriger’s counsel had rendered inadequate assistance at sentencing. State v. Carriger, 132 Ariz. 301, 645 P.2d 816, 820 (1982). The Arizona Supreme Court also remanded for consideration of all other claims properly raised by Carriger’s Rule 32 petition. Id.

On remand, the trial court reimposed the original sentence. It also denied Carriger relief for his remaining claims. The Arizona Supreme Court affirmed, and dismissed Carriger’s Rule 32 petition. State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985).

In 1985, Carriger filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona, raising eight different claims. In late 1986, the district court granted Arizona’s summary judgment motion on all issues. Upon rehearing, the district court denied Carriger’s motion to vacate the summary judgment. Carriger timely appealed.

At Carriger’s request, we stayed our consideration of his appeal pending the outcome of his second Rule 32 motion in the Arizona state courts. Carriger asserted that he had discovered new exculpatory evidence. The Arizona state courts denied his petition. Carriger then asked this court to remand his appeal to the district court so that he could file a Federal Rule of Civil Procedure 60(b) motion regarding the newly discovered evidence. We denied his request and informed Carriger that he must first “show that the district court has indicated a willingness to consider the new evidence.” Order of October 2, 1989, Carriger v. Lewis, No. 87-1549. We granted leave to renew the motion for remand upon satisfaction of this requirement.

Carriger then filed a motion for relief from judgment pursuant to Rule 60(b)(2) and (6), which was denied on the merits on June 5, 1990. Carriger appealed the denial of relief, and the state of Arizona appealed because it believed Carriger’s motion was untimely and should have been procedurally barred. Both parties also filed motions for reconsideration with the district court. We consolidated the appeals with Carri-ger’s earlier appeal concerning the grant of summary judgment. On July 25, 1991, the district court agreed with Arizona and denied Carriger’s Rule 60(b) claim because it was untimely and without merit. Carriger appealed this order and asked for consolidation of his appeals. He also filed a second writ of habeas corpus directly with the Ninth Circuit, raising claims identical to those denied in his first writ.

JURISDICTION

The district court had jurisdiction over the first of Carriger’s writs, and we therefore have jurisdiction to consider his timely appeal. (No. 87-1549). Once Carriger filed his notice of appeal, however, the district court lost jurisdiction over Carriger’s habeas petition. Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir.1979). We review de novo the district court’s assertion of jurisdiction for Rule 60(b) motions. United States v. Kersting, 891 F.2d 1407, 1410 (9th Cir.1989), cert. denied, — U.S.-, 111 S.Ct. 49, 112 L.Ed.2d 25 (1990).

Carriger was informed of his jurisdictional problem, but declined to follow the procedure we outlined to revest the district court with jurisdiction. Carriger should have filed a motion asking the district court to indicate its willingness to entertain a Rule 60(b) motion. Following a ruling on this request, Carriger could have renewed his motion for remand to revest the district court with jurisdiction to consider his Rule 60(b) motion. Carriger failed to follow this procedure. The district court lacked jurisdiction to hear Carriger’s Rule 60(b) motion. We therefore vacate the district court's June 5, 1990, and July 25, 1991 orders. (Nos. 90-16013, 90-16016, and 91-16334).

We next consider Carriger’s second habeas corpus petition, which was addressed directly to the original panel of Ninth Circuit judges. (No. 91-70614). A habeas petition may only be made to the Supreme Court, the district court, a single circuit judge, or a Supreme Court justice. 28 U.S.C. § 2254(a). The panel did not have jurisdiction to consider the second writ. We dismiss it without prejudice.

DISCUSSION

We now consider the merits of Carriger’s appeal. A grant of summary judgment denying a writ of habeas corpus is reviewed de novo. Richmond v. Lewis, 948 F.2d 1473, 1479 (9th Cir.1990) (amended opinion), cert. granted, — U.S.-, 112 S.Ct. 1557, 118 L.Ed.2d 206 (1992). In his first writ, Carriger alleges that eight constitutional defects caused his conviction and death sentence.

Carriger first argues that he was denied his compulsory process rights because the state trial court limited his attorney’s cross-examination of the prosecution’s key witness, Robert Dunbar. Dunbar testified that Carriger robbed and murdered Shaw. During direct examination, Dunbar admitted that he had six prior felony convictions and that he had been granted immunity in exchange for his testimony. Carriger’s counsel conducted an extensive cross-examination, attempting to discredit Dunbar’s testimony and to prove that Dunbar, not Carriger, had robbed and killed Shaw. Cross-examination was not limited in any way.

The defense later recalled Dunbar. After several questions concerning the scope of Dunbar’s relationship with Carriger, the prosecutor objected to further questions about Dunbar’s job history. At sidebar, Carriger’s counsel admitted that his questions had been asked or could have been asked during the prior cross-examination. When the trial court ruled that counsel was barred from questions in this area, Carri-ger’s counsel stated that he had no further questions.

A trial judge retains “wide latitude” to limit defense counsel’s questioning of a witness without violating a defendant's Sixth Amendment rights. Michigan v. Lucas, — U.S. -, -, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991); Dela ware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). The defendant’s right to present evidence is not absolute; he must comply with established rules of evidence and procedure. Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). The court has “considerable discretion to limit cross-examination in order to prevent delay or avoid cumulative evidence.” United States v. Gomez, 846 F.2d 557, 559 (9th Cir.1988). This standard, like other procedural and evidentiary standards, applies equally in capital and non-capital cases.

The trial judge ruled that Dunbar could not be questioned on matters covered during the previous cross-examination. The trial court had the discretion to limit these additional questions. Carriger had a full and fair opportunity for exhaustive cross-examination. We find no Sixth Amendment violation. See id.

Carriger also claims that he was denied effective assistance of counsel because his attorney failed to: 1) conduct a proper pretrial investigation; 2) spend sufficient time with Carriger to prepare a defense; 3) obtain damaging Arizona Department of Corrections files on Dunbar; 4) make several evidentiary objections; 5) submit voir dire questions; 6) offer jury instructions; 7) properly treat the case as a death penalty case; 8) advise Carriger of his right to testify; and 9) determine when felony convictions be used for impeachment.

On direct appeal, Carriger’s counsel only claimed that trial counsel had been ineffective because of a failure vigorously to cross-examine Dunbar. On collateral review, the Arizona Supreme Court concluded that Carriger had waived all other claims of ineffective assistance of counsel by failing to raise them in his earlier direct appeal. Carriger, 692 P.2d at 994-96. Carriger argues that because the Arizona Supreme Court considered the merits of his ineffective assistance claim, we should consider his various reasons for claiming ineffective assistance. A state supreme court may, however, alternatively deny relief on the merits of a federal constitutional claim even after dismissing the claim on procedural grounds. Coleman v. Thompson, — U.S.-,-, 111 S.Ct. 2546, 2556-66, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 263 n. 10, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989).

The Arizona Supreme Court stated that Carriger’s failure to appeal his other ineffective assistance claims was grounds for procedural default. See Carriger, 692 P.2d at 996 (“Because Carriger has not complied with Rule 32.2(c), he would not be entitled to obtain relief under state law”); see also id. at 997 (“we find Carriger’s claims would be barred under state law”). The Arizona Supreme Court made a “clear and express” statement that it relied upon procedural grounds as an alternative holding. See Thomas v. Lewis, 945 F.2d 1119, 1122-23 (9th Cir.1991). We also reject Carriger’s argument that Arizona’s reliance on his procedural default was so unpredictable and irregular that it does not provide an adequate ground for disposal of his claims. Carriger has failed to show cause and actual prejudice stemming from the procedural default. Carriger has also failed to establish that the actual innocence exception justifies relief. He is barred from raising all but the ineffective assistance claim previously raised in the state proceedings. See Wainright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977).

The dissent argues that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires that we consider the merits of Carriger’s other ineffective assistance of counsel claims. Dissent at 339. In Coleman, the Court stated that:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman, — U.S. at -, 111 S.Ct. at 2565. The dissent implies that our decision is creating a “special standard” for ineffectiveness claims. Not at all. We are merely requiring defendants to properly raise ineffectiveness claims, as they are required to raise all other claims to avoid procedural default. We do not ignore the suggestion in Strickland that courts should be more hesitant to apply the cause and prejudice standard to ineffectiveness claims, see Strickland, 466 U.S. at 697-98, 104 S.Ct. at 2069-70, but the implicit holding of the Court in Harris is that Wainright is equally applicable to ineffectiveness claims. See Harris, 489 U.S. 255, 109 S.Ct. 1038.

We are creating no new hurdle for habeas claims of ineffectiveness. A defendant’s state procedural default for ineffectiveness claims requires a demonstration of actual prejudice to avoid waiver. Hall v. Whitley, 935 F.2d 164, 166 (9th Cir.1991). Carriger’s failure to properly raise his other alleged attorney defects constitutes default for all but the Dunbar cross-examination claim.

Dunbar’s prior convictions were disclosed during direct examination; “[t]he only effect of counsel’s omission was that the jury was not told of the convictions twice.” Carriger, 599 P.2d at 791. The failure to raise Dunbar’s felony convictions a second time does not amount to ineffective assistance. See Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986) (reviewing court must assess counsel’s overall performance throughout the case to determine if a particular act or omission caused prejudice).

Carriger argues that Arizona’s death penalty statute is unconstitutional for two reasons: 1) it deprives him of his Sixth Amendment right to a jury determination of statutory aggravating circumstances; and 2) it fails to require the state to prove both the appropriateness of a death sentence and the absence of mitigating circumstances beyond a reasonable doubt. The Supreme Court has explicitly rejected these arguments. Walton v. Arizona, 497 U.S. 639,---, 110 S.Ct. 3047, 3054-56, 111 L.Ed.2d 511 (1990); see also Richmond, 948 F.2d at 1481-83.

Carriger also attacks the Arizona death penalty because it allegedly imposes the death penalty in a racially discriminatory manner. He offered statistical support at his sentencing hearing, but offered no evidence that a decision maker in his case had acted with discriminatory intent. General statistical information showing an increased likelihood of death penalty application for crimes involving white victims is insufficient to establish an equal protection violation. See Richmond, 948 F.2d at 1490-91. Carriger has failed to “prove that the decisionmakers in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987).

Carriger also claims that he was subject to double jeopardy during resentencing because the trial court found an aggravating circumstance not identified during the first sentencing hearing. The Supreme Court rejected this argument in Poland v. Arizona, 476 U.S. 147, 152-57, 106 S.Ct. 1749, 1753-56, 90 L.Ed.2d 123 (1986).

Carriger contends that he was denied due process of law when the trial court instructed the jury on the elements of second degree murder, but failed to provide the jury with a second degree murder form. He argues that instructing the jury on second degree murder without providing a second degree murder form raised an unacceptable risk of juror confusion.

Our review is limited to determining whether an allegedly defective jury instruction “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). It is not sufficient that the instruction is erroneous; rather the petitioner must establish that there was a reasonable likelihood that the jury applied the instruction in a way that violated a constitutional right. Estelle v. McGuire, — U.S.-, -, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991).

The trial court explained the elements of first degree murder, which included any murder committed during the course of a robbery. See A.R.S. §§ 13-451 and 13-452 (repealed Oct. 1, 1978). The trial court stated that:

Once you have determined that there is malice, you must determine whether the murder was in the first or second degree. First degree murder is murder which is the result of premeditation....

Murder by means of poison, lying in wait, or torture, or which is committed in the attempt to commit arson, rape, robbery, burglary, mayhem, kidnapping, or molestation of a child under the age of 14, is also first degree murder.

All other kinds of murder are second degree murder.

If you have a reasonable doubt about which of the two degrees of murder was committed, you must decide it was second degree murder.

The jury instructions expressly required that the jury find either: 1) premeditation; or 2) that a killing occurred during the commission of a listed felony. See Naughten, 414 U.S. at 146-47, 94 S.Ct. at 400 (jury instructions must be viewed in their entirety).

The evidence established beyond a reasonable doubt that the robber tied, beat, and strangled Shaw. Because the killing occurred during the robbery, the predicates for felony murder were met. Further, the murder method compelled a finding of premeditation, satisfying the alternate grounds for first degree murder. Since the evidence established that the robber killed Shaw, the trial court properly could refuse to give an instruction for second degree murder. See Miller v. Stagner, 757 F.2d 988, 993 (9th Cir.), as amended, 768 F.2d 1090 (9th Cir.1985), cert. denied, 475 U.S. 1048, 1049, 106 S.Ct. 1269, 1271, 89 L.Ed.2d 577, 579 (1986). There was no reversible constitutional error.

It is argued that Carriger was entitled to a lesser included offense jury instruction for second degree murder as required by Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).¹ If Beck applies, we must consider whether the retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1989), as applied to capital sentencing in Penry v. Lynaugh, 492 U.S. 302, 313-14, 109 S.Ct. 2934, 2943-44, 106 L.Ed.2d 256 (1989), precludes a Beck instruction.²

In Beck, the Supreme Court invalidated an Alabama death penalty statute that prohibited the trial judge from giving the jury the option of convicting a defendant on a lesser included offense. Beck, 447 U.S. at 633-38, 100 S.Ct. at 2387-90. This prohibition in the Alabama statute was unique among state death penalty statutes, and even Alabama permitted a lesser included instruction for non-capital crimes. Id. at 636-37, 100 S.Ct. at 2389. Beck did not hold that a trial judge must give a lesser offense jury instruction sua sponte.

The Court later emphasized that due process requires a lesser included instruction only when supported by the evidence. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.... The federal rule is that a lesser included offense instruction should be given “if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”

Id. at 611-12, 102 S.Ct. at 2053 (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)). In Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159, 82 L.Ed.2d 340 (1984), the Court stated that: “Beck made clear that in a capital trial, a lesser included offense instruction is a necessary element of a constitutionally fair trial.” However, “[w]here no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process.” Id.

In Greenawalt v. Ricketts, 943 F.2d 1020, 1029 (9th Cir.1991), we affirmed the conviction although the trial judge had not given a lesser included offense instruction. The defendant was tried and convicted of felony murder, “a crime for which Arizona law recognizes no lesser included offense.” Id. Relying upon Spaziano, we held that Beck was inapplicable for defendants convicted of felony murder under Arizona law. Id. In Stagner, 757 F.2d at 993, we affirmed the trial judge’s denial of Miller’s proposed lesser included offense instruction because the evidence did not support it.

The murder of Shaw occurred during the course of the robbery. The jury was instructed that first degree murder involved a killing during the course of a robbery. Carriger was convicted of the jewelry store robbery. The dissent argues that Greena-walt is not controlling because Greenawalt “was tried and convicted only of felony murder.” Dissent at 338. Arizona has argued consistently that the robber committed the Shaw killing. In Arizona, felony murder is subsumed into first degree murder. Greenawalt is applicable. Since the jury could only rationally conclude that the killing occurred during the robbery, and because the jury found Carriger guilty of that robbery, a Beck instruction was unnecessary. Greenawalt, 943 F.2d at 1029.

Further, the record does not support such an instruction. The killer bound Shaw, beat him over the head with a cast iron skillet and a ring sizer, and then strangled him with á necktie. These acts were premeditated and designed to cause death. Carriger has failed to establish the possibility of a lesser intent. Cf. Vickers v. Ricketts, 798 F.2d 369, 372-73 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987) (lesser included offense required because court found considerable evidence that defendant may have only committed second degree murder).

The dissent argues that Beck is applicable because “the jury could have reached a different conclusion,” Dissent at 338-339, and (presumably) convicted Carriger of second degree murder. The record established that the robber tied, beat, and strangled Shaw. Counsel for Carriger never argued (nor was there any basis in the record to argue) that Carriger committed a lesser killing. Carriger’s defense is that Dunbar committed the killing of Shaw and framed Carriger.

Carriger argues (almost tongue in cheek) that the murder may have followed or preceded the robbery. This argument is mer-itless. We have reviewed the record. On these facts, if the jury believed Carriger committed the robbery, the evidence could only support a first degree murder conviction.

Beck does not require that Carriger receive a lesser included offense instruction. Because Beck is inapplicable, we need not determine whether Beck promulgated a “new rule” under Teague.

AFFIRMED.

Footnotes

1

. The Arizona Supreme Court rejected this argument on the merits. Carriger, 692 P.2d at 996-97. Carriger has therefore exhausted his state remedies and is entitled to raise this claim on federal habeas.

2

. On January 21, 1980, the United States Supreme Court denied certiorari on Carriger’s direct appeal. Beck was decided on June 20, 1980.