Darick Leonard Gerlaugh v. Terry L. Stewart, Director, Arizona Dept. Of Corrections
167 F.3d 1222
9th Cir.
1999
Check Treatment

*1 1222 prosecutorial after sufficient time for further

identified misconduct within the mean- study. 419, Kyles of v. Whitley, 514 115 U.S. 1555, (1995), S.Ct. United sufficiently matter We have studied the to 97, Agurs, 2392, States v. 427 96 U.S. S.Ct. identify on which serious issues 49 342 L.Ed.2d differ, jurists may may and which the affect validity of Malone’s California conviction for issues, 4.Whether of the above alone (another Myrtle murder the Benham Califor- combination, or adequate in constitute conviction, for of nia the murder Minnie Ola grounds setting aside of Malone’s Cali- White, proceeding). in challenged is not this upon fornia conviction which the Missouri The serious issues identified so far are those Supreme ag- Court relied principal as the Judge summary to Rea as which gravating upholding factor in his sentence prejudice. or without of death. which, The in the claims limited time avail- Therefore, us, appear to be of able to serious concern are: IT that IS ORDERED this case be trans- Whether, findings 1. on the fact of based regular panel ferred to a to merits be heard the California Court and dis- the practicable. as soon as court, trict Malone’s counsel labored under previously determined, We have in another of a conflict interest that interfered with Malone, petition by that lack duty vigorously^ counsel’s to cross-examine Missouri, to Malone’s execution in Laughhn, Cuyler the informant Sul- v. Eighth Accordingly, the Circuit. livan, 446 100 S.Ct. L.Ed.2d United v. IT States IS ORDERED that the clerk advise Miskinis, (9th Cir.1992), Eighth counsel and the clerk of the also have also resulted Malone’s order, by telephone of immediately this decision to waive his to remain silent Circuit, a copy fax of it to the to be and take witness own stand his lodged in their No. case 96-1613. defense. questions We have that concluded serious Irwin, juror 2. Whether the actions of going have been validity to of psychologist, licensed and trained Ph.D. California conviction which was of the present

who was in the courtroom predicate for the Missouri death sentence. dire, panel learning thereby voir im portance expert polygraph testimony of case, thereafter, immediately and who omission, act or her disclose polygraphs, on

views which she then did jurors,

disclose to her fellow who was then selected to sit and later elected as GERLAUGH, jury foreperson ju sufficient —constituted Petitioner-Appellant, ror meaning Dyer misconduct within the Calderon, (1998), F.3d 970 McDon Greenwood, ough Equip. Power Terry STEWART, Director, L. Arizona (1984), Dept. Corrections, Respondent- States, and Clark v. United Appellee. 77 L.Ed. 993 to constitute No. 99-99003. irrespective fundamental error actu prejudice al to Malone. Appeals, United States Court of Whether prose- 3. the actions of Malone’s Ninth Circuit. failing divulge cutors di- information rectly credibility related to the infor- Decided Feb. 1999. Laughlin, including mant history his testimony, record, prior false his criminal promises

and the of the details made testimony,

him to secure constitute *2 REINHARDT, THOMPSON, and

Before: TROTT, Judges.

Order; Partial Concurrence and Partial by Judge REINHARDT. Dissent Gerlaugh, capi- an Arizona petitioner tal whose execution is scheduled 3,1999, P.S.T., today, February appeals court after district dismissed Lackey1 claim for lack of a denied certificate Appealability

A. Certificate appeal An not be taken unless applicant has amade a of the denial of constitutional appealability granted. certificate of (West 1998). 2253(c)(1),(2) Observ U.S.C. settled, law in this circuit is that the appeala court a certificate of district agree. bility. We circuit, it is settled that In this any exception within claim does not fall Effective Death Penal- the Antiterrorism and (AEDPA’s) raised, ty rule Act’s that claims § 2254 of a 28 U.S.C. after the denial first final, must first au- petition become has appeals. Ceja v. thorized the court of (9th Cir.1998). argues that a like petitioner competent not claim that was Martinez-Villareal, execution in Stewart 1618, 1621, 140 Texas, certiorari). denial 1. See (1995) (Stevens, re 131 L.Ed.2d require prior does not tive assistance counsel appeals the court of authorization phase of his trial. See become until does not an execution is (9th Cir.1997) (Rein- 129 F.3d 1045-52 subsequent imminent and therefore is not a I). hardt, J., dissenting part) (Gerlaugh already rejected claim. This court that Gerlaugh’s attorney any argu- failed make *3 argument. Ceja, 134 F.3d at 1371-72 why ment as to the death should not (B.Fletcher, J., dissenting). Accordingly, we failed, fact, imposed, be to make clos- deny Gerlaugh’s application for a certificate ing argument sentencing all appealability. . phase of his trial. Under these circum- stances, I Gerlaugh’s believe that reversal Subsequent B. Habeas Petition by death sentence is mandated the Constitu- Gerlaugh’s were we to Even consider See, Cronic, tion. e.g., United States v. appeal as a motion for leave to file a subse 80 L.Ed.2d 657 quent petition, deny habeas we would leave (9th Smith v. 140 F.3d 1263 claim, because in this circuit a not Cir.1998). issue, however, This is foreclosed petition, a first section 2254 does I, majority in Gerlaugh decision exception not fall within either AED- for this I compelled reason also am to concur against subsequent PA’s bar claims. See part reject of the order that would (9th Ortiz v. F.3d Cir. Gerlaugh’s claim even if we a certifi- 1998); 2244(b)(2)(A),(B). see also 28 U.S.C. appealability. cate of Stay C. Motion of Execution Although Gerlaugh’s claim is foreclosed Because, view, Gerlaugh in our precedent, disagree under this court’s I with grounds upon “substantial show majority’s deny decision to him a certifi might granted,” relief our Gerlaugh cate has made stay is that his of execution is to be denied. of the denial of a consti Estelle, 880, 895,103 463 U.S. Barefoot (1) jurists tutional differ (1983). 77 L.Ed.2d 1090 Howev concerning whether execution after extended er, is entitled to seek a tenure on death row violates the stay Court, of execution from the Supreme Amendment, Lackey, 514 U.S. at stay the order his execution until 6:00 (Stevens, J., 115 S.Ct. 1421 re denial of cer p.m. 3,1999. today, February P.S.T. — tiorari); Florida, -, Elledge v. CERTIFICATE OF APPEALABILITY (Breyer, 119 S.Ct. DENIED; DISTRICT COURT’S JUDG- dissenting certiorari), from the denial of AFFIRMED; MENT LEAVE FILE TO (2) Court has also not decided SUBSEQUENT DENIED; PETITION whether a claim becomes before FOR OF MOTION STAY EXECUTION an execution is imminent. GRANTED ONLY UNTIL 6:00 P.S.T. 3,1999. FEBRUARY reasons, For the same I would hold that entitled to under the REINHARDT, Judge, concurring grounds” “substantial standard Barefoot dissenting: Estelle, 880, 895, precedent I am compelled our court’s concur in the decision that the AEDPA bars claim, Gerlaugh’s Lackey consideration of al- I

though would have held otherwise Iwere say

free to do I indicating so. this without view on the merits of the

other than to note that it is also barred on the merits in this court. See McKenzie v. (9th Cir.1995) (en banc).

Day, 57

I separately express my write Gerlaugh’s

continued belief that execution is

unconstitutional because he received ineffec-