Mata v. Ricketts

981 F.2d 397, 1991 WL 432062

Opinions

PER CURIAM.

The opinion filed July 1, 1991, slip op. 8025, and appearing at 937 F.2d 467 (9th Cir.1991) is amended as follows:

At slip op. page 8030, paragraph [6]; 937 F.2d 469, last full paragraph of left column, delete and replace with the following:

Luis argues that the Arizona courts committed various errors with regard to sentencing. He argues that in determining whether the “heinous, cruel, and depraved” aggravating circumstance existed in his case, the Arizona courts employed an unconstitutionally vague narrowing construction. Luis’ claim has been foreclosed by Walton v. Arizona, [497 U.S. 639] 110 S.Ct. 3047 [111 L.Ed.2d 511] (1990) and Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1991).

Luis also argues that the Arizona courts failed to find the aggravating circumstances in his case beyond a reasonable doubt. Upon conducting an independent review of his sentencing, the Arizona Supreme Court concluded that “the trial court was correct in finding the presence of two aggravating circumstances.” State v. Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980). We interpret this conclusion to mean that the Arizona court found the aggravating circumstances beyond a reasonable doubt. Clark v. Ricketts, 942 F.2d 567, 575-76 (9th Cir.1991).

Luis’ final sentencing claim concerns the trial court’s treatment of the mitigating circumstances in his case. Upon reviewing the record, we conclude that the trial court considered all of Luis' mitigating evidence and found the evidence not substantial enough to warrant leniency.¹ We will not disturb that finding.²

With the opinion thus amended, the majority of panel as constituted in the above case has voted to deny the petition for rehearing and recommends rejection of the suggestion for rehearing en banc. Judge Norris would grant the petition for rehearing and accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35(b).

The petition for rehearing is DENIED and the suggestion for rehearing en bane is REJECTED.

The amicus’ motion to file brief in support of motion to stay proceedings and remand is GRANTED.

The motion to stay proceedings and remand to the district court is DENIED.

Footnotes

1

. After considering and rejecting sixteen specific mitigating factors, and finding no other mitigat ing circumstances under the "catchall” category, the sentencing judge concluded that "no mitigating circumstances exist.” Supplementary Special Verdict as to Luis Morine Mata, Dec. 8, 1978.

2

. On Luis’ petition for rehearing in this case, amicus curiae for Luis have raised a number of new sentencing claims. Amicus concedes that these claims are unexhausted and asks us to remand to the district court so that Mata can amend his original petition and then exhaust his new claims upon dismissal. Remand is appropriate, amicus argues, because otherwise Mata would have to meet the procedural hurdles of McClesky v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) in a subsequent petition even though McClesky was decided after Mata filed his original petition. This argument is without merit. We have previously held that McClesky applies retroactively, Harris v. Vasquez, 943 F.2d 930, 945-46 (9th Cir.1990), and there is no reason to treat Mata’s new claims differently.