Jimmie Wayne Jeffers v. James R. Ricketts, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

CANBY, Before PREGERSON and Judges WILSON*, Circuit and District Judge.

CANBY, Judge: Circuit Wayne appeals Jimmie the dis- petition missal of his for a writ of habeas corpus, pursuant filed to 28 U.S.C. 2254. petition Jeffers’ habeas challenges his con- victions for deadly weapon assault with a degree and first murder and his sentence of We affirm in death. reverse in part, part, remand for proceedings consist- ent opinion. with our * Wilson, Stephen nia, The Honorable V. sitting by designation. States United Judge District for the Central District of Califor-

FACTS AND PROCEDURAL HISTORY into groin Cheney’s and hand. He also told Van der get Veer to top on Cheney of Jeffers’ murdering convicted Pe- choke her. He took photographs both nelope Cheney assaulting and of Doris Van these acts. got then top der deadly weapon. Veer with a Penelope Cheney began beating her Cheney with his girlfriend had been Jeffers’ hands. this, As he did had been he arrested called her May with Jeffers “bitch” and “dirty 1976 on charges said, state snitch” receiving and stolen “This property. one is posted [naming Jeffers had bail for Che- several Jef- names].” ney, but had been post finally to fers dragged unable bond for Cheney’s body into the himself and in custody remained at the bathroom put and it in the shower. County Pima jail Jail. While in Jeffers The body remained in the shower for reports received Cheney had been co- days. three body When the began smell, to operating police, with the providing infor- Jeffers Van der and Veer wrapped it in mation to them about Jeffers and certain garbage bags put and it in a sleeping bag. heroin transactions. Jeffers wrote a note night That they put body in the trunk to jail another inmate offering him money of Van der Veer’s car. Jeffers and Van if he kill Cheney. would The detention der Veer Cheney’s took body to place a officer who was supposed to deliver the Sedona, near Arizona, and buried it in a note read it and seized it. Jeffers was grave. shallow finally released on in early bail October. On February jury a found Jef- Later month, that same Jeffers was liv- fers guilty of first-degree murder and as- ing with Doris Van der Veer in the Linda sault with deadly weapon. The trial Tucson, Vista Motel in Arizona. Jeffers judge sentenced Jeffers to death on the sent a note to Cheney requesting that she degree first murder conviction. meet He also with Jeffers. On October 20th Jef- sentenced Jeffers to not fers told less Van der than 5 nor Veer Cheney was more years than coming in prison over and asked her to the assault leave while Cheney conviction. Cheney appealed was there. Jeffers arrived at from judgments motel room when Jeffers and Van and the imposed. der sentences Veer were there. two women briefly met As a result of the appeal, Jeffers was and Van der outside, Veer then went leav- resentenced on the murder conviction. On ing Cheney Jeffers and in the Ap- room. July 1980, the trial court found two proximately two hours later Van der Veer aggravating circumstances and no mitigat returned to motel room and knocked on ing circumstances, again and imposed the the door. opened Jeffers the door. Jeffers death penalty. The gun had hand; in his Cheney lying was Court affirmed both the convictions and the on the appeared bed cyanotic. sentences. State v. Jeffers, While watched, Van der Veer Jeffers in- (1983). P.2d 1105 The sole aggravat jected a liquid Cheney’s into said, hand and ing upheld circumstance by the Arizona “I given have enough her shit to kill a Supreme Court was that Jeffers had com horse and this bitch won’t die.” Jeffers mitted the murder “in especially heinous Veer, told Van der a former prac- licensed ... or manner.” Ariz.Rev.Stat. nurse, tical to check Cheney. Cheney’s Ann. 13-703(F)(6). faint, heartbeat was her breathing was la- United States denied certiorari. bored, Jef and a foamy fluid coming was out of Arizona, 865, 104 fers her mouth. Van der Veer asked if appel- lant going was help Cheney. He re- sponded, “No, going I’m to kill On her.” Jef- December Jeffers filed a fers straddled Cheney’s body began petition for writ of corpus habeas in the choking her, first with his belt and then district court. He subsequently filed an with his hands. After appeared it petition she amended requested an eviden- died, had prepared Jeffers syringe another tiary hearing. On Feb. the district Van forced der inject Veer heroin court denied Jeffers’ evidentiary motion for hearing petition. and dismissed Denial of immunity for a defense Jeffers Ricketts, (D.Ariz.1986). F.Supp. process. witness can violate due United Lord, States v. (9th Cir.1983). appealed to this court on Feb. The defendant is entitled to an evidentiary

hearing if he makes prima “an unrebutted facie showing prosecutorial misconduct DISCUSSION prevented that could have a defense wit giving ness from relevant testimony.” Issues A. at 891. In order to make prima facie questions raises some 13 for our showing prosecutorial misconduct, a de consideration. Because we find that Jef- fendant has the first, burden of showing, unconstitutionally fers sentenced to that the and, second, evidence was relevant death, we need not reach some of the is- prosecution that the deliberately intended presents. questions sues he we ad- judicial to distort the factfinding process by dress are: denying immunity to the defense witness. prosecutor’s 1. Did the refusal to Id. (citing approval Government of grant immunity witness, to a defense Virgin Smith, Islands v. 615 F.2d granting immunity (3d Cir.1980)). while to four state Jeffers has not met his witnesses, violate Jeffers’ sixth amend- burden. right compulsory process, to there-

ment Jeffers testified day that on the that by denying process? due died, Cheney he making was out a heroin 2. Did evidentiary rulings certain at purchase. Earlier in that week Van der deprive his trial process? Jeffers due Veer and Jeffers had purchase made a from Louis Rosso. Van der Veer testified 3. Did the introduction of evidence of that on that occasion Rosso had sold Jef- deny other “bad acts” Jeffers a fair tri- enough fers satisfy heroin to Jeffers’ needs al? days. for several Her testimony therefore 4. process Was Jeffers denied due made Jeffers’ buying alibi that he was out single appearance law when he made a heroin somewhat According less credible. jury jail clothing? before the Jeffers, to Rosso would have testified that 5. Jeffers impartial Was denied an only he had sold Jeffers a quantity small sentencing tribunal? Although heroin. clearly exculpa- neither 6. aggra- Was Arizona’s standard of tory defense, nor essential to the Rosso’s vation for murder “espe- committed in an testimony relevant, would have been satis- cially heinous ... manner” fying one element of the Lord test. constitutionally applied to Jeffers? is, however, There no evidence whatsoev prosecutorial er of misconduct. The de Concerning B. Matters the Trial fense did not make known until the middle of the trial that it intended to call Rosso. grant immunity to to Refusal witness defense suggestion There is no prosecutor that the any made threat to Rosso that induced him grant contends that refusal to amendment, to pri- invoke the fifth as was immunity witness, to a defense when the Lord, ma facie shown to have occurred in state had previously granted offered and showing 711 F.2d at any 891. Nor is there witnesses, immunity to four state violated prosecution presented that the a distorted right Jeffers’ sixth compul- amendment picture by immunizing factual its witnesses sory process process and denied him due testify story to one side of while granted law. The state immunity to Doris denying immunity to defense witnesses Veer, Eppling, Van der Ramona Sharon present who would the other side. See Galarza, and Rich Honton. The Alessio, state re- United States v. 528 F.2d grant Rosso, fused to immunity (9th to Louis Cir.), 1080-82 who was called help to the stand to (1976); Paris, establish his alibi defense. United States v. 812 F.2d (9th Cir.1987). challenge death, ney’s Jeffers’ therefore more than 14 prior months prong of the fails the second Lord test. testimony, was that he was told “there Disla, States United a cute blonde in room 7.” The trial [was] (9th Cir.1986). prima He has made no statement, that excluded and Jeffers showing grant facie that the decision not to contends that the court erred. The Arizo- immunity to him Rosso denied fair trial. na Court held that the evidence We affirm district court’s decision was improperly excluded hearsay, as but this issue. that the error was harmless. We find no constitutional error. The evidence was cu- 2. Evidentiary rulings testimony mulative of other offered evidentiary rulings Jeffers contends that McRoberts. Its support exclusion will not capital cases must meet a standard of granting corpus of habeas relief. reliability.” “extra He draws support from plurality opinion in Ford v. Wain- b. Prior “bad acts” involving Cheney wright, Jeffers also contends that trial stated “[i]n court committed constitutional error when capital proceedings generally, this Court it admitted statements of Cheney through factfinding has procedures demanded testimony Meek, of Edith the manager aspire heightened ato standard of reliabili- apartment complex where Jeffers -, ty.” at living time, at the and of Ra Nurse L.Ed.2d at 347. Insofar argu- as Jeffers’ mirez, a nurse at Tucson Medical Center suggests ment evidentiary rulings Cheney where went to be treated in No their subject totally are to a review differ- vember of 1975. Meek testified that Che methodology capital ent in cases from that ney said that drugged Jeffers had her and cases, in all other criminal we do accept not had through thrown her the bedroom win however, it. readily agree, We that we dow. Ramirez testified Cheney that said capital must cases heightened review boyfriend that her drugged had her and concern reliability for the of the state jumped that she through had the bedroom procedures, Spaziano court’s see v. Flor window because she feared further vio ida, 447, 456, 104 3154, 3160, lence from Jeffers. The Arizona because “the Court held that the statement to made is qualitatively different from a Meek properly was admitted under the ex imprisonment, sentence of long.” however exception cited utterance hearsay to the Carolina, Woodson v. North U.S. rule. It that held most of the statement 2978, L.Ed.2d made to Ramirez was properly admitted (1976) (plurality opinion Stewart, J.). under the medical exception. treatment standard, by however, Even we find boyfriend comment that her had challenged none of the state court drugged her was held improperly admitted, evidentiary rulings amount to constitution harmless, but because it was cumulative of al error. the properly admitted statements made Meek. a. Myron Exclusion McRoberts’ Tes- timony inability to cross-examine the declar- ant Cheney deprive In order to did not show that only Van der Jeffers Veer, Jeffers, fundamentally and not fair trial. Cheney was with See Barker v. Morris, drug (9th the time of death, Cir.1985), her 761 F.2d 1396 overdose and Myron McRoberts, defense called U.S. guest (1986). at the motel. He testified L.Ed.2d that he The confrontation saw Van der Veer permits and a clause blonde woman the introduction of out-of- (presumably Cheney) leave the motel to if they statements are both necessary gether day question. on the in Among Barker, and reliable. 761 F.2d at 1399. reasons offered McRoberts why he re The statement was sufficiently reliable as membered events on the day of Che- See, an excited e.g. utterance. v. State Peeler, (Arix. (1986). P.2d 335 complaint Jeffers’ real is that the Moreover, evidence App.1980). Cheney’s statements was admitted under theory by court, the trial jury and the by independent was so in- partially were corroborated structed, while evidence. held the evidence admissible on a different Cheney’s statements were also neces- theory. sary. At trial Jeffers contended that he An erroneous instruction by justi- itself Cheney and that he loved would be unable fies only habeas relief if it “so infected the challenged testimony to hurt her. The entire trial resulting conviction necessary to this rebut contention. We Cupp Naughten, process.” violates due Cheney’s conclude that the admission of statements to Meek and Ramirez did not The trial in- court’s deprive Jeffers of a fair trial. struction had no such effect. Nor did it lead 404(b) to the evil that Rule is intended testimony Other “bad acts” prevent. Under the trial court’s.instruc- contends that the admission tions, jury permitted was not to consid- of evidence of other “bad acts” him denied er the evidence of prove bad acts to Jef- a fair trial. prior The evidence of bad acts fers’ character in order to show that he through was elicited the testimony of the acted in conformity with that character. immunized witness Sharon Galarza. Galar The district court did not err in denying testified za that Jeffers had committed oth habeas relief. violence, including er acts of assaults with drugs, Galarza, guns, upon knives and Che 4. Appearance jury jail before clothing ney, and others. willingness For Galarza’s testify prosecution, the state Jeffers contends that his trial was dropped drug prostitution charges rendered unfair his involuntary appear against her. Her testimony reported jury ance before readily identifiable Jeffers, State 416-17, 135 Ariz. at 661 jail clothing. The surrounding facts P.2d at 1117-18. issue are not in dispute. On one occasion appeared jury jail before the in his 404(b) Rule of the Arizona Rules of Evi- clothing telling jailor after his that he dence, rule, like the federal forbids admis- didn’t want to clothing wear his civilian sion of prior evidence of a defendant’s In prevail issue, court. order to on this crimes, wrongs, prove or acts “to the char- Jeffers must appearance establish that the person acter of a in order to show that he jail clothing in was involuntary, Bentley v. acted in conformity therewith.” The trial Crist, (9th Cir.1972); 469 F.2d that court jury instructed the that it could con- juror a recognize would clothing the as sider the evidence of bad acts to a show United v. Rogers, by jail, issued a States plan, common scheme identity, or or other 1418, 1422(9th Cir.1985); 769 F.2d and that purposes. similar appeal, On the Arizona the error not was harmless. Jeffers can Supreme Court held that the evidence of not meet his burden. The apparel choice of admissible, bad acts was not to show a his, clothing readily was the was not identi plan identity, common or explana- but as an fiable, jury already and the knew that Jef why tion the murder reported was not fers had During been incarcerated. voir by sooner those who were threatened. jurors dire the were informed of Jeffers’ escape efforts to from Pima County the argues ought that the evidence Jail. We affirm the district court’s denial admitted, not to have been but he offers no ground. of habeas relief on this why Supreme reason the Arizona Court’s ruling was erroneous. Our review of the Sentencing Matters C. ground record discloses concluding no for impartial sentencing Denial an 1. that the admission of the evidence denied tribunal Sumner, Jeffers a Colley fair trial. denied, (9th Cir.), 784 F.2d cert. Jeffers contends that his constitu — U.S. -, rights L.Ed.2d 84 tional were violated when he was Birdsall, Judge judge Lewis, resentenced the our decision in Chaney v. originally who had sentenced him. After (9th Cir.1986), 1194-96 — sentencing, Judge the initial Birdsall be- -, 95 L.Ed.2d recipient of a “mail order came blitz.” (1987). There, rejected we a similar Judge complaint postal filed challenge statute, to the same pointing out provided authorities and Jeffers’ name was “[although statutory language is investigators likely as the source of the broad, any as murder could be considered mailings. unwanted admitted to cruel, heinous, depraved, part mailings; the mail blitz Supreme Court need not construe the stat ceased; charges and no brought were open-endedly.” ute Id. at 1195. so stat- against resentencing, Jeffers. At his later ing, echoing plurality opinion we were judge. Jeffers filed a motion An for new in Gregg Georgia, evidentiary hearing was held before a dif- judge ferent and his motion was denied. upheld where the Georgia Court statute upheld The Arizona Court providing a death if a murder was findings court’s lower that Jeffers had “ ‘outrageously vile, wantonly horrible failed to establish bias. It also observed torture, or inhuman in that it involved de- voluntary bias caused a defendant’s pravity mind, aggravated or an battery ought disqual- conduct not to be ground ” to the victim.’ (quoting Ga.Code Ann. ification. 27-2534.1(b)(7);see also v. Flor- Proffitt district court found that Jeffers had ida, 242, 255-56, received a full evidentiary hearing and fair 49 L.Ed.2d (plurality opin- was, court state and that there there- ion). fore, no need for evidentiary hearing In Chaney, we stated also that “[t]he federal court. reviewing After the evi- Arizona appears to have dence, the district Judge court found that sufficiently sentencing channeled discretion Birdsall’s conduct fell any short of consti- prevent arbitrary capricious capital agree. reject tutional bias. We We Jef- sentencing decisions.” Chaney, 801 F.2d contention appear- fers’ that there was an at 1195.1 Finally, held we that the ance impropriety required dis- imposed upon Chaney sentence trict court to was consist- evidentiary hearing. hold an ent with the Jeffers was not Arizona law as unfairly treated in the established by cir- brought being. cumstances he into Court: murder ruling. district did not err in its was cruel because the victim suffered greatly, and because Cha- Application the “especially hei- ney’s helpless (a victim deputy) sheriff's nous, cruel or aggravating was shot in the Chaney back when could circumstance escape again have made his without shoot- ing

Jeffers contends that Arizona's victim. stat prescribing ute penalty when the While Chaney establishes that the

murder was committed in an “especially Arizona heinous, cruel, statute is not void on its face and depraved or manner” is un constitutionally capable is vague application, on its face constitutional it and as applied. naturally does not question Ariz.Rev.Stat.Ann. 13- answer 703(F)(6) (1982). argument His the whether the Arizona statute was constitu statute is void on its face is foreclosed tionally applied in this case. In — Arizona, -, 1. held, In Tison v. banc, U.S. recently The Tenth Circuit has en 1676, (1987), petitioners argued 95 L.Ed.2d 127 give adequate Oklahoma had failed to an given unconstitutionally that Arizona had an narrowing aggravating construction to its factor broad construction to its factors in heinous, atrocious, “especially of murder that is Supreme § 13-703. The Court held that the Cartwright Maynard, cruel." v. certiorari, grant was not issue expressed within the (10th Cir.1987) (en banc). 1477 2, opinion no on it. Id. at-n. 107 S.Ct. at 1682 n. 2.

483 908, any application, 1458, the statute must individual U.S. 55 L.Ed.2d 500 broadly not be so construed that is (1978). “go “[t]here Both terms to the mental state case, principled way distinguish this no perpetrator and attitude of the as reflected imposed, in which the death in his words and actions.” State v. Gretz many from the cases which it was not.” ler, 51, 135 Ariz. at 659 P.2d at Georgia, Godfrey v. 420, 433, 100 Gretzler, Supreme Court set 1767, 1759, (1980) (plu- S.Ct. 64 L.Ed.2d 398 forth factors which lead to a rality opinion). reviewing After the Arizo- heinousness or depravity, with examples of defining “espe- na Court cases all They but one. were: cially depraved,” heinous ... or con- we (1) relishing of the murder by the clude that Jeffers’ death sentence violated Clark, See State v. killer. 428, 126 Ariz. Eighth and Fourteenth Amendment. denied, 888, cert. 1067, 616 P.2d See id. 423, S.Ct. at 1762. 796, (1980) (de 66 L.Ed.2d 612 “depraved” “Heinous” and are inherent fendant murdered four people “kept ly more difficult terms to define than is spent bullet as grisly souvenir of his “cruel.”2 The Arizona Court has Bishop, State v. crime”); 531, 127 Ariz. cruelty defined to include the infliction of (1980) (defendant 622 P.2d 478 killed vic physical pain and mental on the victim. by repeated tim hammer, blows with tied Gretzler, State v. 42, 51, 135 Ariz. 659 P.2d him up, caused him to fall denied, 1, cert. down mine 10, 971, shaft, 2444, threw (1983). rocks on victim lay as he Especially twitching, cruel murders involve the senseless or away saying sa drove “Good-by State Lu great pain. distic infliction of I hope Norman. you we never see jan, 124 Ariz. 604 P.2d again”). (1979). In order to establish that a murder (2) gratuitous against violence the vic- cruel, especially the court must find be Ceja, tim. See State v. 126 Ariz. yond a reasonable doubt the victim (1980) (defendant P.2d 491 shot female was conscious and physical able to suffer twice, dragged victim her into another Id. The Arizona pain anguish. and mental room and shot her four more times in Supreme Court held that such evidence was apparent reason; head for no shot male Jeffers, State lacking in Jeffers’ case. and, victim three times after he had fall- 135 Ariz. 661 P.2d en, shot him once more back and then (1983). Jeffers’ death accordingly sentence repeatedly kicked him when victim was application rests on the of the more elusive dead). unconscious or standard of murder “espe committed cially heinous needless ... or manner.” mutilation of the victim. Vickers, See State v. 129 Ariz. Court of Arizona has (1981) (defendant strangled P.2d 315 cell- adopted dictionary definitions of “heinous” mate, then carved words “Bonzai” into evil; “hatefully as or shockingly grossly Smith,3 State v. J.C. back); victim’s “depraved” bad” and of as “marked (1981) (defendant debasement, Ariz. 638 P.2d 696 corruption, perversion or dete Knapp, State v. rioration.” mutilated female murder victims’ breasts 562 P.2d genitalia). difficulty major Standard, impor 2. This of definition is of Cases—The Standardless No.Car.L. Arizona, tance using because unlike some other states Rev. 980-82 Problems of definition standards, "heinous, cruel, applies similar considerably are reduced under Richmond, depraved” disjunctively. State v. suggest standard when the facts of a case both 312, 319, 57, 64, denied, 136 Ariz. 666 P.2d cert. See, e.g., cruelty depravity. Chaney, 801 986, 435, 464 U.S. 78 L.Ed.2d 367 1195; Ricketts, F.2d at v. F.2d 820 Woratzek (1983); Cartwright Maynard, see v. 1450, (9th Cir.1987) (amended opinion). 1458 (10th Cir.1987) (en banc) (disjunctive ap 1477 heinous, atrocious, plication "especially of penal- 3. Because there are several Arizona death adequate cruel" struck down for lack of narrow Smith, ty cases entitled State v. we have added Rosen, construction); ing “Especially Hei initials to the Smith surnames. Aggravating nous" Capital Circumstance in 484 senselessness of the crime. See components of heinousness depravity Tison, had not been 526,

State v. 129 Ariz. 633 P.2d shown. denied, (1981), cert. 882, 103 335 459 U.S. Court of Arizona held that 180, (1982)(unneces 147 74 L.Ed.2d Jeffers had “relished” his crime: victims, sary including murder of two- Jeffers was beating the [W]hile [dead] year-old child, position in no to thwart victim he called her “a dirty bitch and a Ortiz, State v. escape); murderer’s 131 snitch” striking said, and with each blow 195, (1981), Ariz. cert. de 639 P.2d 1020 “This one is for so [naming and so. nied, 984, 2259, several This evidences the rel- names]. (1982) (defendant stabbed ish appellant with which committed the woman to death and then indiscriminate murder.... find that the remarks [W]e children, ly attempting attacked her by made appellant, while at the same death). stab and burn them to beating victim, time establish that the offense was committed in especially (5) helplessness of the victim. heinous and depraved manner.4 Gretzler, 52-53, 135 Ariz. at 659 P.2d at Jeffers, 135 Ariz. at 430, 661 P.2d at 1131. factors, 11-12. last two senselessness Smith, State v. R.D. Yet in 79, 138 Ariz. of helplessness victim, the crime and of the (1983), 673 P.2d 17 always need not lead to a that a Court held that a defendant had not been murder depraved, is heinous or however. shown to have exhibited a heinous and de- Id. at 53, 12; 659 P.2d at See also State praved attitude when he repeatedly had Smith, B. 491, 503, 289, 146 Ariz. 707 P.2d raped the requested murder victim and had (1985). playing tape Champi- “We are the as the by Illumined above is standard Id. at ons.” 673 P.2d at 24. And in case examples by furnished the Arizona Graham, State 135 Ariz. 660 P.2d Supreme Court, it seems to call for conduct a defendant who shot his victim shocking more attitudes than ex- those was not shown have demonstrated a by hibited Jeffers. We do not minimize heinous or depraved attitude when he conduct; Jeffers’ is grisly murder affair smiled and companion told his that the vic- and this certainly qualifies. one Neverthe- tim “squealed had like a rabbit” when shot. less, the Arizona Court on more than one Brookover, See also State v. 124 Ariz. occasion emphasized that, has “because (1979) (murder P.2d not commit- degree most first cruel, murders are hei- ted in depraved heinous or manner when a nous and the statutorily required back, defendant shot victim once in told * * * inquiry respect to imposition of groaning worry victim “Don’t it will death penalty is whether the conduct was be over soon” and shot him again, placed especially cruel, heinous or depraved.” body victim’s in victim's van and aban- Johnson, State v. 395, 401, 147 Ariz. doned van at airport). (1985); See State v. B. Of all of components of heinousness

Smith, 146 Ariz. 301; 707 P.2d at depravity set forth State v. Lujan, Ariz. 604 P.2d Supreme Gretzler, is more none (1979). That Jeffers’ crime cannot subjective relishing than the of the crime rigorous meet this standard becomes even by the defendant. When remarks made apparent more when his compared case the defendant at the time of the crime are with those in which the Supreme Court of used to especial establish heinousness Arizona found that one or more of the depravity, ordinary distinction between 4. The facts regarding Jeffers’ conduct are immunity), drawn under entirely testimony Veer, from the Van der who grant under immunity. testified Smith, State v. R.D. 673 P.2d 5. The especially murder was found to have been (1983) (Feldman, J., concurring however, and dis- cruel and the death was ac- sentence senting) (questioning penalty imposed cordingly 85, Smith, affirmed. Id. R.D. 138 Ariz. at strength testimony accomplice testifying 673 P.2d at 23.

485 especial depravity placed must in in weighted be clear sacks submerged in arbitrary application of the order to avoid lake not sufficient to show heinousness or conclude that the line is not standard. We Nor, depravity). at level of violence case, that clear this Jeffers’ remarks Jeffers, displayed by are we able to attach way provide principled distinguish “no controlling significance to the fact that the case, in death penalty this which the was passed victim had from unconsciousness to imposed, many from the cases in which it by death the time Jeffers inflicted the Godfrey Georgia, was not.” v. 446 U.S. displayed blows.7 He no state of mind that 1759, 1767, 100 64 S.Ct. L.Ed.2d signifies depravity a level of greater than (1980) (plurality opinion).6 398 those found not to meet the definition of The other factor that the Arizona Su “especially heinous ... or in the preme upon support Court relied a find cases last cited.8 ing of depravity heinousness or was the Because we conclude that the standard gratuitous infliction of upon violence depravity heinousness and top victim after death. Jeffers climbed on delineated in prior of the dead victim and hit her several times Arizona cases applied cannot be face, making while the remarks re principled Jeffers, manner to his death sen again, ferred to above. Here the level of tence must be struck down arbitrary. as objectionable conduct was far below that in 432-33, Godfrey, 446 U.S. 100 S.Ct. at on, principally the case the Court relied ruling, 1767. In so we are mindful of the 35, Ceja, v. 126 Ariz. State 612 P.2d 491 recent decision of the United States Su (1980), wholly unaccompanied and was — preme Court in McCleskey Kemp, any mutilation in meaningful sense of that U.S. -, 1756, 107 S.Ct. term. are principled We unable to find a (1987). There the Court stated that “ab distinguishing means of depravity showing sent a Georgia capital Jeffers’ conduct from that in State v. Wat punishment system operates in an arbi son, 441, (1978), 120 Ariz. 586 P.2d 1253 trary capricious manner, McCleskey denied, 924, 1254, cert. 440 U.S. 59 prove cannot constitutional violation (robber L.Ed.2d 478 in shootout demonstrating that other defendants who times, shoots victim in back four the last may similarly be situated did not receive floor; time while victim is face down on penalty.” Id. 107 S.Ct. at 1774. depraved), held not heinous or or State v. In explanation, further quoted the Court Poland, 388, (1985), Ariz. 698 P.2d 183 199, Gregg Georgia, 428 U.S. at 147, S.Ct. aff'd, 1749, 2937, (1986) (evidence victims, “[njothing L.Ed.2d 123 to the effect that in any may unconscious, who have suggests been were of our cases that the decision to rejecting petition, (two In majority 6. Jeffers’ concurring the district court of the Court and one referred to the fact that Jeffers Justices) had forced Van dissenting held the view that twice der Veer to choke the dead victim while he took driving over a victim would not demonstrate pictures. upon This fact was not relied as evi- depravity perpetrator way if the had no depravity by sentencing dence of either the knowing that the first run was sufficient to kill. court or the Arizona Court. Van der 68, Id. at 666 P.2d at 69. Veer testified that Jeffers told her the reason he taking pictures proof was to have 8.The Arizona Court found it unneces accomplice. Van der Veer had been an sary disposing to rule on whether Jeffers’ of the body grave days in a shallow three after the It is not clear that the Arizona depravi murder constituted further evidence df placed importance on the fact that the victim ty. We fail to see how this action of Jeffers can was dead rather than unconscious at the time of placing from differentiated a victim alive in discussing greater the blows. the much level weighted sinking sack and the sack into a gratuitous Ceja, violence in State v. the Court lake, Poland, see 144 Ariz. repeated "although referred to violence the vic (1985), aff'd, already Jeffers, tim was unconscious or dead.” (1986), abandoning L.Ed.2d 123 the victim’s (emphasis 135 Ariz. at 661 P.2d at 1131 van, Brookover, added). Richmond, body But see State v. in the victim’s own see (1979), 666 P.2d Ariz. 601 P.2d both depravity. in which a were held not to demonstrate 486 mercy 13-703(E) (1982). defendant vio- Ariz.Rev.Stat.Ann.

afford an individual To apply especial lates the the Constitution.” standard of heinousness depravity to Jeffers case when the ruling contrary princi is not to these Our permit arbitrary capri- facts do not it is or or ples. prosecutorial No acts of discretion cious, and is therefore an unconstitutional in our judicial clemency are involved com application of Godfrey, the standard. See upon parisons. The Arizona cases 1764-65; 446 U.S. at 100 S.Ct. at establishing minimum relywe are those the Gretzler, 135 Ariz. at 659 P.2d at 9 requirements aggravating factor of (constitutional may error occur court especial depravity. heinousness While straying in an individual case from an oth- Supreme the Arizona Court is entitled to erwise constitutionally narrow construc- reweigh aggravating mitigating tion).10 case, reviewing capital e.g., a factors Johnson, 395, 400, Ariz. State v. therefore, emphasize, We the nature of that de novo assess our decision. saying We are not that Jef- rulings purport ment is not the of its hold fers’ conduct not punished by could be ing particular conduct falls outside the death under some system different of se- depravity. standard of heinousness or lecting penalties. ruling simply Our is qualifies Whether conduct as heinous existing Arizona’s aggravation standard of issue, depraved is a threshold and the for murder committed in an “especially hei- Supreme rulings Arizona Court’s on that manner,” nous depraved ... or as that process part defining issue are of the of standard has applied by been defined and Arizona, the standard.9 See Poland v. Arizona, Court of cannot be 1749, 1755, U.S. 90 L.Ed.2d extended to Jeffers’ case losing without its (1986)(“aggravating circumstances are ability distinguish principled in a manner separate penalties not or offenses but are between those it condemns to death and guide making ‘standards to of [the] those it does not. choice’ between the alternative verdicts of The writ must therefore imprisonment.”) (quoting death and life issue to Missouri, 430, 438, vacate Jeffers’ sentence on Bullington v. his murder con viction, (1981)). subject resentencing 68 L.Ed.2d 270 to the state’s If the him consistently conduct is not heinous or with the Constitution with (and any period does not meet of the other ruling stan reasonable of time. Our aggravation), dards of there opportu unnecessary is no makes it for us to reach addi nity discretionary for a mercy; questions act of tional state concerning raises precludes law then penalty. death his penalty.11 9. If the rulings Gretzler, meaning Arizona Court’s Godfrey the writ aggravation simple applications 2254(d)(7) may were de novo against issue under 28 U.S.C. § phrases "depraved," attack, the bare "heinous" and Jeffers’ death sentence. Jeffers’ and our being part process rather construction, narrowing analysis, than of a is on the structure of the standard as sentencing system prob- applied would Chaney, to Jeffers. See 801 F.2d at 1194 ably offering (“since issues, be invalid for lack of Chaney’s standards claim raises no factual guidance determining challenge sufficient constitutionality who should to the of the Ari- Gregg, be sentenced to death. See applied purely 428 U.S. at zona death statute as is a 198, 200-03, 2937, Chaney, legal question”). 96 S.Ct. at dealing 801 F.2d We are not here with consequently Court, reviewing simple at 1195. We are of fact of the Arizona applica- fairly supported Court’s definition and which binds us if in the record. reason, id,, 2254(d)(8); Ricketts, tion disagree standard. For that we at § Woratzeck dissenting opinion (9th Cir.1987) (amended with the views of the that an comparable opinion). examination of Arizona cases necessary, should not and that our review is determining issues, confined to 11.Among whether a rational fact- other Jeffers contends that he finder jury could have determined Jeffers’ crime to is entitled determinations of depraved. have been heinous or mitigating Spazi factors. He is not. See Florida, ano v. 10. Because we (1984) (trial application judge may conclude that the jury’s impris standard to Jeffers would violate override recommendation of life Amendments, Eighth death). and Fourteenth within onment and sentence defendant to —

CONCLUSION U.S. -, (1987); Fendler, 728 F.2d at judgment of the district (federal n. 21 courts are “obligated to upholds affirmed insofar as it Jeffers’ con- conduct a complete and independent victions of murder assault, and review aggravated of all purely legal or and his mixed sentence on fact the assault conviction. law questions by raised judgment is reversed state prisoner’s] insofar up- [a as it ha- corpus holds beas petition”). Jeffers’ death sentence. The case is remanded to the district court with instruc- Some federal courts in proceed habeas to tions issue a regard writ with to Jeffers’ ings have applied the presumption of cor death sentence, subject to State’s re- 2254(d) rectness under to state § court sentencing him within a reasonable period findings of aggravating circumstances. of time. Ricketts, Woratzeck v. 1450, 820 F.2d PART, AFFIRMED IN REVERSED IN (9th Cir.1987) 1459 (finding “cruel, of hei PART, AND REMANDED. nous, depraved” aggravating circum by stances Arizona Supreme pre WILSON, District Judge (dissenting sumed 2254(d)); correct under Magwood § part and concurring in part): Smith, v. 1438, 791 F.2d (11th 1449 Cir. majority concludes that the Arizona 1986) (existence of aggravating or mitigat Supreme Court, in affirming petitioner’s ing question circumstance a of fact subject sentence, adopted such a con- broad to review under 2254(d)). courts, These § struction of Arizona Revised Statute 13- § however, appear to applied have pre 703(F)(6)as to Eighth violate the and Four- sumption without considering whether the teenth Amendments to the United States finding of an aggravating circumstance is a Constitution. Because I believe the majori- question of fact or a question mixed of fact ty doing little more than second-guessing and law. the Arizona Supreme Court’s interpretation A state court conclusion that the defend- of quite facts that reasonably fit within the killed in “heinous, ant cruel, or depraved” statutory definition of aggravating circum- appears manner to be question a mixed of stances, I dissent.1 fact and law. Chaney, 801 F.2d at 1194. The court must first determine that STANDARD OF REVIEW defendant engaged in certain (e.g., conduct Generally, a federal court in a habeas beat victim after dead), she was corpus proceeding must accord a presump- then, by reference to the decisions of tion of correctness to a state court’s factu- supreme court, state conclude that such findings. al 2254(d). 28 U.S.C. This § conduct meaningfully distinguishes the de- statutory presumption, however, not does fendant from the “usual or norm of first apply questions to of law ques- or to mixed degree murders.” As a question mixed of tions of law and fact. Mata, Sumner v. law, fact and the state finding court is not 591, 455 597, U.S. 102 S.Ct. to entitled a presumption of correctness.2 (1982); L.Ed.2d 480 Goldsmith, Fendler v. 1181, 728 F.2d (9th 1191 n. Cir.1983). hand, theOn other the state court’s con- Rather, the federal court reviews non- such clusion that the defendant killed in “hei- questions factual de Chaney nous, novo. v. cruel manner should Lewis, 1191, (9th F.2d Cir.1986), subject not be to de novo review. The 1. I concur majority opinion with the subject of "issue fact” to the presumption petitioner’s extent it affirms conviction. 2254(d). correctness under presumption "basic, only applies primary or historical if Even the state court aggravating (in facts: ‘facts the sense of recital of external “essentially circumstances is factual" so it credibility narrators).’" events their would be reviewed "clearly under the errone Fendler, 728 F.2d at 1191 (quoting n. 21 Town ous" standard appeal, if on direct see United Sain, 293, 6, v. send 372 U.S. n. McConney, States v. (9th 1199-1202 (1963)). n. Cir.) (en banc), 83 L.Ed.2d 46 it is not penalty phase, of the stat has stated elude bifurcation Supreme Court United States aggravating mitigating findings utorily-defined of state that its review proved be is “limited to circumstances which must be circumstances aggravating doubt, findings unprinci written they yond are so a reasonable question whether sentencing body, violate the and automatic re arbitrary as to somehow pled or Barclay supreme Constitution.” the state court. See United States view Florida, Florida, Proffitt (1983) (plurality). review, 77 L.Ed.2d On interpreted this lan has Supreme compares The Ninth Circuit “each death corpus habeas guage support deferential imposed sentences sentence with the circumstances. similarly review ensure situated defendants to 441, Ricketts, 450 758 F.2d v. particular Adamson that the sentence of death in a (9th withdrawn, 1343 (9th Cir.), 764 F.2d disproportionate.” v. Gregg case is not (9th banc, Cir.1985), 789 F.2d 722 reh’g en 2909, 153, 198, 96 S.Ct. Georgia, 428 U.S. — U.S. -, Cir.), 107 S.Ct. granted, cert. 2937, (1976); v. 49 L.Ed.2d 859 State Rich (1986). 62, 21 93 L.Ed.2d mond, 186, 196, 41, 51, 114 Ariz. 560 P.2d denied, 915, 2988, 433 53 cert. U.S. 97 S.Ct. justified by the Deferential review (1977). Moreover, 1101 the Arizo L.Ed.2d protections intend- presence “procedural of Supreme na Court has demonstrated an penalty ensure that the death will ed to ability rationally apply statutory ag the to consistent, imposed in a rational manner.” mitigating gravating and circumstances. 960, 3430 103 S.Ct. at Barclay, 463 U.S. Gretzler, 42, 52-53, Ariz. See State v. 135 (Stevens, concurring). the state’s Where 1, 11-12, denied, 659 P.2d cert. 461 U.S. discretion on sentencing procedures “focus 971, 2444, (1983) 103 77 L.Ed.2d 1327 S.Ct. of and particularized nature the crime ‘the cited and cases therein. particularized character of the defend- the ant,’ presume that lawfully may we [de- capital sentencing pro Where a state’s sentence was not ‘wanton- fendant’s] procedurally responsibly cess is sound and freakishly’ imposed, thus that ly and managed, I believe the correct standard of disproportionate within the sentence is not ‘any review is “whether rational factfinder’ Eighth any recognized meaning under the aggra could have found the existence of — Kemp, McClesky Amendment.” v. vating Godfrey v. Geor circumstance[s].” -, -, 95 U.S. S.Ct. 420, 1759, gia, U.S. (1987) added).3 (emphasis L.Ed.2d (White, (plurality) dis J. capital sentencing process senting) (quoting Virginia,

The Arizona Jackson v. 2786, 2781, appropriate the checks on arbi- contains (1979)).4 protections procedural trariness. The in- L.Ed.2d 560 denied, 1548, recently Circuit until held that rt. Eleventh ce only omitted). procedural protections (1979)) (citations these not raised a 59 L.Ed.2d 796 presumption imposed the sentence was since abandoned its The Eleventh Circuit has Constitution, consistent with the but foreclosed position find- of total deference to state court federal review: ings aggravating mitigating circumstanc- capital punishment in a case the state [w]here Magwood, es. In 791 F.2d at the court through properly courts have acted drawn corpus held that a federal habeas court is not appropriate guide to dis- statute with cretion, standards precluded reviewing fact-findings from state not undertake a case- federal courts will particular ag- of a that determine existence by-case comparison given facts in a case gravating mitigating circumstance. The supreme with the decisions of the state court. additionally findings are held that such though retry This rule stands even were we to fact, presumed to be correct issues of and are mitigating circumstances in 2254(d). under § cases, may dif- these ‘we at times reach results ferent from those reached in the Florida state majority identify the standard of 4. The does not courts.’ proceed- applies corpus habeas review it in this Strickland, (11th Cir.) Ford v. 696 F.2d "complete ing, appears it be the but (en banc) provided independent" for in standard of review (1983) (quoting Spinkellink Fendler, 1191 n. 21. 728 F.2d at Cir.1978), (5th Wainwright, 604-05 QUESTION CONSTITUTIONAL is a rational petitioner’s based on words and actions. Despite open-ended language con 13-703(F)(6), Supreme tained Ariz.Rev.Stat. pro Court of Arizona addition- viding ally death for found those who that Jeffers “gratu- had inflicted “heinous, cruel, commit murder itous violence.” Id. The record shows manner, pen the Arizona death that Jeffers top “climbed on of the dead alty passes statute constitutional muster victim and hit her in the face several times by virtue of narrowing constructions eventually resulted in additional through available Supreme Arizona wounds and bleeding.” Id. Based on Lewis, Court. Chaney facts, 801 F.2d at 1195. these however, The majority, Ari holds that the could rationally petitioner find that the in- zona application Court’s gratuitous of the flicted short, violence: “In it death penalty petitioner statute violates was this violence, additional over and above the constitution. that which was necessary carry out the defendant’s intent, criminal that in effect A. Analysis Under the “Rational Fact- distinguishes the [defendant’s murder] Standard Review finder” from the ‘usual or the degree norm’ of first murders.” State v. Ceja, Court of Arizona has set light forth in considerable detail those factors grounds factual finding for support which that finding the that a murder was petitioner “relished” the act killing committed in “especially heinous, an cruel, “gratuitous violence,” inflicted or depraved” the Gretzler, manner. Arizona Supreme Court could 51-53, rationally Ariz. at 659 P.2d at conclude par- 10-12. In that ticular, Jeffers’ committed murder in the Supreme Arizona “es- Court has heinous, cruel, pecially depraved or identified the defendant’s man- relishing of the ner.” killing and the gratuitous infliction of vio-

lence as two finding bases for a heinous or

depraved parame- attitude. Id. Given B. the Analysis Under the De Novo or “In- by ters identified the Supreme Arizona dependent” Standard Review Court, I believe “rational factfinder” The majority acknowledges that the Ari- could have found the aggra- existence of Supreme zona Court adopted has standards vating 13-703(F)(6). circumstance § which narrow the degree class of first mur- The Supreme Arizona Court found derers may put death, that who be to but con- Jeffers had killing: relished the cludes finding that a cir- 13-703(F)(6) under cumstances beating Jeffers was “seems to

[W]hile § the [dead] call victim he for conduct her or shocking called “a bitch attitudes more dirty and a than by snitch” and those exhibited striking with each said, Jeffers.” Ante at blow holding “This one is for that so and Jeffers’ [naming so.” conduct is not objectionable, several sufficiently This this the rel- Court names]. evidences simply ish appellant substitutes its judgment committed the the judgment of the Supreme murder.... find that Arizona the Court. remarks [W]e by Nothing in appellant, Eighth made while at Fourteenth the same permits beating victim, time Amendments result. this establish that the offense was committed in an especially The majority’s reliance on Godfrey v. heinous and manner.5 Georgia, State v. Jeffers, (plurality) L.Ed.2d is misplaced. 1131, cert. There Georgia Supreme Court affirmed This a death sentence articulating without how Supreme 5. The Arizona findings Court’s ty questions strength his- of Van der Veer’stesti- facts, torical the time correct as what such Jeffers said mony, did at way see ante at 488 n. but in no shows killing, presumed of are findings "fairly sup- the state court not are 2254(d). majori- under 18 ported § U.S.C. by 2254(d). the record.” 18 U.S.C. § dead, actions differed from the ter she defendant’s “gratui- inflicted degree violence,” murders. The norm of first United tous the remarks he Supreme death inflicting States Court reversed the made while this additional vio- sentence, lence, finding imposed that it had been he showed “relished” the kill- ing. a “standardless and unchanneled” fash- Id. ion. 100 S.Ct. at 1765. As majority attacks this not on wrote, ques- Justice Marshall it was not a the basis that it is “standardless and un- supported tion of whether the facts channeled” under Godfrey, it but that does jury’s finding: comport not with other decisions of the any raising vague- “As in case issues of Court. majority’s ness, question is whether the court 13-703(F)(6) conclusion requires that § adopted ambiguous below has so a con- “conduct or shocking attitudes more than provision struction of the relevant Jeffers,” those exhibited ante at comprehends it universe cases is represents possible reading one of the Ari- impermissibly large, leaving thus undue zona penalty statute and Arizona discretion to the decisionmaker and cre- precedent, majority but the fails to show ating dangers intolerable of arbitrariness reading this constitutionally re- caprice.” quired. The Arizona may 446 U.S. at 420 n. 100 S.Ct. at 1762 n. 1 constitutionally impose the death sentence (concurring opinion). petitioner provided the court consistent- ly applies the death statute to oth- Court, The Arizona unlike its er position. defendants in Jeffers’ The fact counterpart Godfrey, gone great “has that Jeffers’ may conduct lie close to the lengths precisely correctly define and separating line ordinary degree first mur- apply 13-703(F)(6).” Ariz.Rev.Stat. “heinous, cruel, ders from Ricketts, Adamson v. 758 F.2d at 451. In killings interpreted could be to fall finding that Jeffers committed his crime in —and imposing below threshold for the death depraved manner, a heinous or penalty under current Arizona case law— Supreme specific Court identified the con give does not rise to a constitutional viola- which, duct in judgment, its set this mur tion absent inconsistent determinations apart der degree from other first murder: Supreme the Arizona Court.6 (1) victim; He climbed to his dead repeatedly struck her in the face so as to In an effort to show that the Arizona blood; (3) draw called her a “bitch and a Supreme Court’s decision in was so Jeffers snitch,” and, (4) dirty blow, said, with each unprincipled that it violated the constitu- “This one is for so and so.” See State v. tion, the majority undertakes a selective Jeffers, 1105, 135 Ariz. 661 P.2d review of other penalty Arizona death 1131, denied, 865, cert. 464 U.S. cases. The majority emphasizes those 199, The Arizona in cases which the defendant’s conduct Supreme explained Court further peti how seemingly objectionable was more than Jef- tioner’s conduct 13-703(F)(6) satisfied un fers’ Supreme but the Arizona Court did existing der precedent. Arizona By re not find “heinous, the defendant in killed peatedly striking his victim in cruel, the face depraved” af- or manner.7 None of the — majority challenges The in effect imposed].” the constitu- McClesky Kemp, not be tionality recognizes any capital sentencing system -, which added). (emphasis 107 S.Ct. at 1774 aggravating circumstance as 7. These cases are relevant benchmarks to the open-ended 13-703(F)(6). as Inevitably, A.R.S. extent that similar or worse conduct did not courts must draw difficult lines between ordi- finding aggravating result in a nary degree circumstances. first murder and those murders They help question: heinous, to answer a threshold which cruel, What "especially are committed in an objectionable is the minimum level of or conduct manner. But the constitu- required finding tion is satisfied for a where state courts circum- draw lines 703(F)(6)? based on "rational criteria that stances under A.R.S. § narrow the The deci- deci- 13— judgment sionmaker’s as to sion in whether the is not circum- undermined those cases Jeffers particular stances of a Supreme defendant’s ag- case meet the in which the Arizona Court found threshold which the gravating [below can- circumstances based on conduct more cases, however, cited involved conduct sim- found that the defendant’s words and ac- Jeffers’, ilar to tions, little can be distilled inall furtherance of a plan deliberate comparisons. from broad “rip-off” drug and, dealer in pro- the cess, impress other traffickers, narcotics Smith, 79, In State v. R.D. 138 Ariz. failed adequately distinguish the crime (1983), P.2d 17 Supreme from degree other first murders. Id. at only that found the evidence of a heinous 40-41, 601 P.2d at Again, 1324-25. noth- depraved mind was the uncorroborated ing in Brookover the shows Arizona Su- testimony Smith, of a codefendant preme Court inconsistently applied the defendant, tape had requested the “We Are death penalty petitioner. statute to Champions” played stage at some did not commit “cold and deliberate homi- during kidnap-rape-murder. The court cide” Brookover; rather, as his words found this to be insufficient evidence of and actions show that he taking “relished” heinousness or depravity, particularly in of a “dirty life snitch.” light of the defendant’s attempt, suicide part by which motivated remorse. The majority cites two additional cases to Id. at 673 P.2d at 24. finding in show the Arizona Court inconsist- R.D. Smith not inconsistent ently with the found Jeffers to gratui- have inflicted Arizona Court’s that Jef tous violence. Both are readily cases dis- fers killing. “relished” the Unlike tinguishable. the de Smith, fendant R.D. state made In Watson, State v. 120 Ariz. ments that directly captured gusto (1978), P.2d killed, he at the time he killed.8 (1979), L.Ed.2d Graham, State v. 135 Ariz. victim robbery engaged the defendants in a (1983), shoot-out, P.2d 460 the court found insufficient and was shot four times in the back, evidence of a heinous or the last attitude time while face down on the defendant, where In finding who was floor. organically killing was not brain-damaged and highly impressionable, in an especially “heinous, committed cruel, depraved” manner, while recounting smiled victim “squealed like a Court looked rabbit” when to the victim’s role in shot. bring ing about his concluded that own 447-48, death. Id. at state- “[w]hatever 586 P.2d at may ments Graham 1260. No have made such about consideration is present killings here. are more likely attributable immaturity, nervousness and need to im- Likewise, Poland, State v. peers press his than to a hardened attitude (1985), aff'd towards the death of another.” Id. at 90 L.Ed.2d fails to be 660 P.2d at 463. No such charitable inter- instructive. There the court’s inability to pretation given can be to the statements ascertain the exact circumstances of the Jeffers, made while repeatedly striking his precluded victims’ deaths any finding that dead victim in face. the murders were depraved. or heinous Nothing 698 P.2d at 200. Brookover, State v. Poland 124 Ariz. suggests that actions, Jeffers’ words and record, firmly established on the fail found the defendant had not depravity show committed heinousness. murder an especially “hei- nous, cruel, manner where he CONCLUSION shot the back, victim in the told groan- ing victim worry “Don’t ... it will over foregoing be case-by-case analysis soon” and shot again. victim The court should unnecessary. be As a federal habe- objectionable than say very Jeffers’. Such cases 8. It is not clear that the defendant in R.D. Smith little requested about tape whether Jeffers’ played killing conduct be meets while victim, opposed raping threshold below as her. Under Arizo- cannot law, na imposed. case

be defendant must "relish the 13-703(F)(6) for § murder” to be satisfied. See Gretzler, P.2d at 10. court, a limited forum we offer corpus as attack on his collateral petitioner’s sentence. Our

state court conviction petitioner is not that the

duty is to ensure the constitution.

being held violation re-writing the not extend to

Our role does comport our own Arizona to

law of precedent.

interpretation of Arizona responsibly and state courts are

Where interpreting penal- state death

consistently held to be

ty statutes which have been

constitutional, should limited our review factfinder” could “any rational whether existence of

have found the

circumstances. THERON, Plaintiff-Appellant,

Frans MARSHAL,

UNITED STATES

Defendant-Appellee.

No. 86-5741. Appeals,

United States Court of

Ninth Circuit.

Argued Aug. 7, and Submitted 1987.

Decided Nov.

Case Details

Case Name: Jimmie Wayne Jeffers v. James R. Ricketts, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 9, 1987

Citation: 832 F.2d 476

Docket Number: 86-1840

Court Abbreviation: 9th Cir.