State v. Mata

916 P.2d 1035 Arizona, Appellee,

STATE MATA, Appellant.

Luis Morine [4101].

No. CR-77-4104-AP/PC Arizona,

Supreme Court

En Banc.

9,May McMurdie, Chief Paul J.

Grant Woods Section, Counsel, Crane Appeals Criminal MeClennen, Attorney General Assistant General, Roberts, Attorney Assistant Jack Phoenix, Appellee. for Glieksman, Stroud, Giddings & Stompoly, Glieksman, L. Hor- by Elliot A. David P.C. Representa- Capital ley, Tucson and Arizona for Project by Young, Tempe, tion Denise I. Appellant. Bain Patten and

Brown & Michael W. Phoenix, Cott, Amicus C. Van Charles Ceja. Jesus Curiae Jose MOELLER, Justice.

THE PRESENT PROCEEDINGS convict- defendant Luis Mata was degree Lopez of the first murder of Debra ed protracted After and sentenced death. courts, litigation in state and federal scheduling Mata’s issued a warrant July execution for 1995. On June stay moved Mata this court Although presented execution. the motion arguments, the court concluded numerous only legal questions two of the warrant- stay provide temporary in order to ed brief, fully argue, adequate opportunity to them. two issues are: and decide Those principles or state of federal Whether require that defen constitutional law were to death dants who sentenced opinion in v. Gret to this court’s State Ariz, zler, cert. de nied, [77 if resentenced 1327] L.Ed.2d be statutory used aggravating “especially circumstance (now ap depraved” cruel or 13-703(F)(6)), pearing at A.R.S. part, death-qualify whole See, spine. The defendant through to the e.g., v. Lew- ered Richmond defendant. arrested is, Alonzo Mata were and his brother 528 [121 Richmond, charged degree murder. (1992); with first 411] 886 P.2d 1329 following Testimony at trial revealed 268, King, Ariz. 180 up leading to the of the events account (1994); Jeffers, 497 v. U.S. 1024 Lewis out, evening the After an victim’s death. 764, 606] L.Ed.2d [111 110 S.Ct. 3092 joined by the victim brothers were Mata Gretzler, 42, Ariz. 659 and 135 ac- Harrahge, both George Castro and finding is a 1. A whether P.2d sub-issue a four left All quaintances of the Matas. differently cruelty treated should be bar, Mata’s walked to the neighborhood findings of heinous- respect in this than began watching nearby apartment, and depravity. or ness Castro, According the victim to television. minutes, any re- entitled got up 2. Whether defendant after about ten leave claim, by by as- hair point grabbed lief reason of her the Luis petition they going in his Rule 32 for serted fourth were and announced relief, Thereafter, did not post-conviction that he rape the Mata brothers her. victim, receive effective assistance counsel the Luis with his fists beat sentencing rifle, successively raped his second 1978. Alonzo with a point, fell At one Luis and the victim her. issue, respect to first conclude the With bed, up whereupon Luis her picked off the need not be resentenced. We that defendant against the by the hair and beat her head precluded. that the issue is conclude second regained cement The victim soon floor. defendant is entitled no relief Because away attempted to run consciousness and tempo- us that led to issue the two issues going they announced that were after Luis stay rary stay, quash temporary we now river. A to kill her and throw her state, will, upon issue motion neighbor that he heard terrified testified of execution. another warrant screams, a rifle that he saw Alonzo throw car, inside a and that another man carried AND PROCEDURAL HISTORY FACTS person to the car and either box degreе murder Mata was convicted first car deposited it the front seat. The appeal, and sentenced to death 1977. On According departed. confessions requirements of Lockett v. pursuant to the brothers, beatings rapes, after Ohio, 2954, 586, 57 L.Ed.2d 98 S.Ct. the men the then victim drove unconscious Watson, (1978), v. 120 Ariz. and State away apartment, from the and Luis killed (1978), denied, 440 586 P.2d 1253 cert. by cutting the road her her at the side of 99 S.Ct. 59 L.Ed.2d U.S. throat a knife. with (1979), resentencing for this court remanded Mata, 233,236, v. tainted to assure that his was not (1980). States United mitigating limitations on evidence. denied certiorari. U.S. again again He sentenced death and (1980) (footnote 338, 66 L.Ed.2d 161 appeal pending, appealed. While his omitted). petition post-convic Mata filed his first for (PCR). al tion relief That PCR related to challenge Ari After class action errors, leged transcript stayed and this court penalty zona death statute failed the feder appeal the second while the trial court made Cardwell, courts, Knapp F.Supp. 4 al findings affirming of fact. the conviction (9th Cir.), (D.Ariz.1980), aff'd, 667 F.2d 1253 sentence, the facts we summarized denied, 473, cert. case follows: this court an execu set early morning of March tion date in 1983. New counsel Mata hours stay body of Lee filed a second PCR and obtained police found the Debra Lopez judge Phoe- execution from the trial court. A who at the side of a road West twenty-one year judge and denied the nix. The old woman had was not trial heard being died the result of her throat sev- second PCR. Because it should have aggravator was that available, gravating factors. One judge, who was heard especial in an murder PCR to the trial he had committed we remanded the second heinous, cruel, within ly depraved manner judge pursuant ex rel. to State Corbin 13-703(F)(6). (Evans), This meaning 675 the of AR.S. Superior Court (1984). years five hearing, finding After a the trial was made in P.2d 1319 factual in State opinion denied on the second PCR and issued relief this court its before rehearing. cert. denied a motion for de nied, court denied review of In late (1983). L.Ed.2d 1327 set a second execution the second PCR and early New counsel then filed date for statutory contends that Defendant corpus in preliminary petition for habeas 13-703(F)(6) were not terms contained stay federal district court and obtained the pass constitu sufficiently narrowed so as to resolution, to de- execution. Its adverse of opinion Gret until our 1983 tional muster fendant, final until the did not United become upon primarily relies the zler. Defendant Supreme denied Court certiorari States of Supreme case Lewis United States — Ricketts, v. later 1994. Mata decade 3092, 111 110 S.Ct. Jeffers, v. 497 U.S. -, S.Ct. L.Ed.2d U.S. (1990), in this and a footnote L.Ed.2d (1994). The Ninth thereafter denied Circuit Richmond, opinion in v. recent State court’s stay motion to the mandate. Mata’s (1994). The 886 P.2d 1329 Meanwhile, 1992, Mata, September Godfrey footnote, referring to v. Jeffers counsel, through filed a again third PCR new Georgia, 446 U.S. 100 S.Ct. court, contending primarily that he in state (F)(6) (1980), that stated L.Ed.2d receive assistance of counsel did not effective yet adequately factor not nar “had original counsel at the resen- from his trial time Godfrey ... at the pursuant rowed tencing. The court held the claim to be trial This sentencing. did [Richmond’s] second alternatively found the claim precluded until State See Lewis occur Gretzler. review, and merit. This court denied lacked Richmond, Ariz. at Jeffers...." 1, Supreme Court denied cer- the United States 1332 n. n. P.2d at 1. 1994. Mata v. Ari- tiorari October — to determine upon now called -, We are zona, U.S. whether, light Richmond footnote (1994). contends, are, required to we Mata re- as February defense counsel In current sentencing. case for a third We mand his court, a fourth which filed PCR are conclude that we not. Shortly before the third pending. remains July 12, execution date scheduled stay court

defendant moved this (F)(6) History of Factor in A. The with the results outlined above. execution This Case of Debra court found the murder The trial DISCUSSION especial- in an Lopez have been committed principles of federal or state consti- I. Do cruel, heinous, at ly depraved manner require that defendants tutional law again sentencing. The trial court found first death to this court’s sentenced to (F)(6) sentencing. at factor the second opinion in v. Gretzler be resen- (F)(6) factor This also found the statutory aggravating if cir- tenced cited Mata appeal. we direct “especially cru- cumstance of factor. 135 proper application depraved” used was to death- el 659 P.2d at 10. defendant’s qualify the defendant? PCR, he post-GreizZer, was ar- second unconstitutionally vague gued was that The trial at Mata’s second sentenc- The trial court “death-qualified” apрlied arbitrarily. Mata under was ing found to be argument, by of that of denied relief on merits penalty death statute reason Arizona’s ag- court denied review of order. separate statutory this the existence of two Id. PCE, S.Ct. discretion. argued In his senteneer’s third Lewis, 40, 47-49, Richmond v. 528, 535, 121 L.Ed.2d 411 (F)(6) aggravating fac Although the holding circumstance new law that the face, court has con vague is on its this tor unconstitutionally vague prior to Gret give adequate so sentencer strued it argument zler. trial court held that making decision whether guidance trial court had re precluded because the Walton sentence of death. See inflict a the merits in solved the same issue on Arizona, 655, 110 S.Ct. after Gretzler. We denied review of Jeffers, ruling. (“Walton 777-78,110 at 3100-01 argument squarely forecloses therefore argues that defendant’s state (F)(6) aggravating Arizona’s subsection argument, being for the third now advanced circumstance, Arizona as construed time, precluded. Notwithstanding the tor- Court, sentenc to channel the fails case, history granted a tem-

tured objective stan er’s discretion ‘clear and on the merits porary stay to resolve the issue ‘specific ‍​​‌​​‌​‌​‌‌​​‌‌​​​‌‌‌‌​‌‌‌​​​‌‌​‌‌​‌‌‌​​‌​‌‌‌‌​​‍and detailed provide dards’ resolution, only in requires because it rationally that ‘make renewa guidance,’ and case, likely in cases to come this but other imposing a of process for sentence ble the court. before this omitted). (internal death.’”) quotation in this is whether such a con question case (F)(6) aggravating circum- B. Was the prior to provided this court struction adequately prior stance narrowed our decision Gretzler. in Gretzler? language first points Mata to the Richmond, 576, 886 footnote in The United States Constitution de 1332, support argument in of his that P.2d at imposition mands that of a death sentence be 13-703(F)(6) constitutionally not nar- distinction. See upon principled based some Gretzler. until Because he was sen- rowed Jeffers, 774, 497 U.S. at 110 S.Ct. 3099 Gretzler, Mata (“The tenced maintains Eighth and Fourteenth Amendments reject argu- this his sentence is invalid. We infliction of a sentence of cannot tolerate the ment, Rich- and instead find our footnote systems permit legal this death under mond to be relies on an errone- dicta which wantonly penalty ... and ... unique to be interpretation Arizona and ous of United (citing Gregg v. Geor freakishly imposed.”) precedent. Supreme Court States gia, 153, 188, 2909, 2932, 49 96 S.Ct. (1976) Stewart, (joint opinion of L.Ed.2d 859 concerning 1. Arizona law JJ.)).

Powell, Stevens, and In order for a new, narrowing Gretzler did capital provide not sentencing pass scheme constitu Instead, scrutiny, suitably interpretation of tional “discretion must be factor. rejected in Gretzler we claim that directed and limited so as to minimize the wholly arbitrary capricious already noted risk of ac had not been narrowed. We Gregg, 189, “already an identical tion.” 428 U.S. at 96 S.Ct. that we considered aggrava its 2932. “A state’s definitions claim another case have held ting aggravating circumstances—those circumstances circumstance was not defined vague ‘eligible’ unconstitutionally a criminal broad or man- that make ner,” play signifi pointed that we had “also twice out penalty—thеrefore the death Court, channeling dis the United States cant role sentencer’s Florida, 774, 242, Jeffers, U.S. 96 S.Ct. [428 cretion.” 497 U.S. at 110 S.Ct. Proffitt aggrava approved has of ‘strik- language 913] If the of an 49 L.Ed.2d bare capital ingly similar terms’ another state’s ting provide circumstance does sen direction, 659 135 Ariz. at sufficient the use statute.” tencer with (“We statutory scruti P.2d at 9 believe that may factor still survive constitutional heinous, ‘especially ny phrase depraved’ has cruel or appellate if the state construed constitutionally nar- adequately has been construed in the term so as to channel 324 fashion, Cruelty a. properly applied

row has been cases.”) Ortiz, (citing 131 individual of the three we held that each 195, 206, (1981), Ariz. P.2d 1031 could, (heinous, cruel, depraved) or elements denied, cert. U.S. alone, aggravating cir- constitute an standing (1982); Knapp, L.Ed.2d 863 State v. cumstance, noted that: (1977), cert. P.2d specifícally defined Cruelty denied, 98 S.Ct. the victims pain infliction of involve the Richmond, L.Ed.2d ____We have also stated concept our cert. only physical pain, cruelty involves denied, 433 upon the but mental distress visited also (1976)). victims____Where, however, there no actually the victims suffered evidence that new, did not narrower Gretzler death, physical pain prior mental or (F)(6) factor, simply but interpretation presented is inconclu- where the evidence previously legitimate applica- digest held sive, cruelty we have is not of the factor. When we discussed the tions shown. meaning “especially cruel or de- Knapp praved,” first noted that State v. we (citations 135 Ariz. at 659 P.2d at 10 following in the had defined those terms added). omitted) (emphasis we listed When manner: cruelty concepts ele- which narrowed ment, reference exclusively did so with evil; hatefully shockingly heinous: previous not announce a opinions. We did grossly bad. Gretzler, nor formula in have mathematical disposed pain esp. inflict in a cruel: because, since, Su- we as the United States wanton, insensate or vindictive manner: recognized, “definition of preme an sadistic. aggravating factor of nature is sus- this ceptible precision----” of mathematical debasement, corrup- depraved: marked Walton, 655, at 497 U.S. 110 S.Ct. tion, perversion or deterioration. impossible craft it is an task to Because judge might insert facts Gretzler, 51, formula into which 659 10 135 Ariz. at P.2d at death-eligible, if a 543, to determine defendant is Knapp, 562 (citing 114 Ariz. at P.2d at identifying we content ourselves with must (quoting Third New Interna 716 Webster’s types of murders meet the definition of Dictionary)). decision in tional Our Gretzler heinous, cruel, especially depraved. or explained points out that have on nu “[w]e cruelty merous occasions that involves the approval example, For we cited State with victims, upon pain and distress visited sentencing judge Knapp, v. in which the go depraved and that heinous and espe- that the properly held murder was of the perpetrator mental state attitude Gretzler, cially See 135 Ariz. at cruel one. reflected his and actions.” Id. words 51, at 10. The trial found 659 P.2d Poland, 269, 285, (citing v. 132 Ariz. State murdering Knapp’s act infant 784, 147, aff'd, P.2d 800 476 645 burning met daughters by them alive (1986); 90 L.Ed.2d 123 State 106 S.Ct. (disрosed pain). inflict definition of cruel Tison, 526, 543, 129 Ariz. 633 P.2d Knapp, at 716. In 114 Ariz. 562 P.2d denied, (1981), cert. finding, appellate court upholding the (1982); Bishop, State v. hardly noted can think of more “[w]e (1980); 622 P.2d anyone.” ghastly death than this for Id. Clark, 428, 436, Ariz. Gretzler, sentencing judges Prior to could 888, 896, denied, cert. 101 rely Knapp's application of the definition (1980); especial- State cruelty (“disposed pain to inflict 35, 39, wanton, Ariz. Ceja, ly] or vindictive man- insensate sadistic”) case; in that Lujan, ner: facts (1979)). “ghastly death[s].” cases killer’s actions. Our by the our denced Knapp, prior but Since suggested specific factors narrowing have decisions demonstrate finding or de- consistently. of heinousness applied to a has been lead definition ap- factor is cruelty pravity. had not been The first such Ceja, held that we being by the kill- upon relishing the murder parent the victims died shown where er____ 493-95. found to 612 P.2d at we have 126 Ariz. at Another factor shot. Clark, Likewise, depraved that there was state we held a heinous demonstrate suffered gratuitous of the victims vio- “no evidence infliction of of mind is the victim____ 436, 616 P.2d at 896. any pain.” Closely 126 Ariz. at related lence on the insuffi- Bishop, factors, held that there was we also demon- the above two cruelty “the to establish where cient evidence state of depraved strating a heinous opinion that the of the expert medical mind, mutilation of needless is the victim____ pain.” not conscious victim was considered factors Other Tison, However, in P.2d at 481. this court are the senselessness although the evidence did held that crime, helplessness of the vic- and the tim____ (excеpt evidence suffering pain and show circumstances, such as no Where bled to showing that one of the victims above, sep- specific factors discussed death), sentencing judge acted reason- the “norm” of first the crime from arate concluding that the murder was cruel ably in murders, finding degree we will reverse experienced a “the victims must have where “espe- committed in an that the crime was by being moved great degree pain of mental depraved manner.” cially cruel or apprehen- highway gunpoint from the (cita- 51-53, 659 P.2d at 10-12 135 Ariz. at eventually being possibility sion of added). omitted) most, (emphasis At tions witnessing com- through murdered and already ex- supplied names for the Gretzler family on the other mission of the murders or de- categories especially heinous isting P.2d at 352. 129 Ariz. at members.” praved murders. that Arizona courts These cases demonstrate narrowing consistently applied a defini- have categories the five we labeled Each of prior to our decision Gret- tion of “cruel” adopted wholesale from Gretzler were 51, 659 P.2d at 10.1 135 Ariz. at zler. See “The first such factor of this court. decisions Thus, argument on heinous- if Mata’s even relishing murder apparent of the is the merit, con- depravity had which we ness and 52, at 11. 135 Ariz. at 659 P.2d the killer.” not, he would not be entitled clude it does understanding “relishing of of our We based inde- because his murder was be resentenced prior deci- in on our the murder” Gretzler correctly, espe- to be pendently, and found 52, Ariz. at Bishop. in and sions Clark cruel, cially adequately and that factor was Clark, upheld a find- at 11. In we 659 P.2d pr defined e-Gretzler. the defendant told ing depravity of where else, Charley seen “You should have someone Depraved or b. Heinous cutters,” and the I hit him with those when element, cruelty Gretzler kept As with as a souvenir of his a bullet meaning “heinous court discussed the of at 126 Ariz. at 616 P.2d 894- crime. prior decisions: depraved” in terms of our trial Bishop, or we affirmed the 95. In State depravity finding heinousness and judge’s of statutory concepts of heinous and [T]he in the the defendant beat the victim state of because depraved involve a killer’s vile hammer, watch, wallet murder, stole his as evi- head with at the time of the mind man, (F)(6) analysis solely upon we based our in its cases to which referred 1. The other Gretzler 19, 26-27, 612 P.2d meaning heinousness. See Ariz. of "cruel” are State v. discussion of the denied, 913, 475, 482-83, Steelman, case), (this 101 S.Ct cert. and State v. Mata Ortiz, (1980). 287, we held support L.Ed.2d 141 similarly our conclu Those cases Ortiz. Mata, cruelty been demonstrated because cruelty finding appropriate ‍​​‌​​‌​‌​‌‌​​‌‌​​​‌‌‌‌​‌‌‌​​​‌‌​‌‌​‌‌‌​​‌​‌‌‌‌​​‍had not was sion. beyond prove a reasonable raped did not "[t]he victim state defendant beat and where the 233, during commission the victim suffered killing doubt that her. See 125 Ariz. before 210, denied, 938, 48, 51, 57, at 639 P.2d at of the murder.” 131 Ariz. cert. 609 P.2d 338, (1980). In Steel- (1981), of shoes, mutilation stih-living legs proof as that needless tied the victim’s and shaft, together, a mine of heinousness took the victim to the victim is evidence in, him, use Although causing depravity). him to fall rocks we did threw said, and, in ei- away, he mutilation” drove waved of “needless Gretzler label Smith, exhaustively hope I “Good-bye, Norman. we never see we did ther Vickers or 534, which, coincidentally, at 481. you again.” 127 Ariz. at 622 P.2d describe the facts instances of “needless very involved obvious suggest did not some new calculus Gretzler mutilation,” to be those facts and then held “relishing” presence of used to divine the depravity. indicative heinousness and simply presented Bishop We or Clark. cases, the facts indi- facts those held that Finally, two oth- we mentioned Gretzler murders, had his cated the killer “relished” determining er factors to be considered “relishing” indicative that this and held depraved: a murder or whether was heinous depravity. or See 135 at of heinousness crime, help- of the “the senselessness Gretzler, 52, 11. Prior 659 P.2d at at of the victim.” 135 Ariz. lessness just judges guidance as much had However, of these fac- at 11. neither “relishing” kinds murders which indicate Gretzler, they were introduced were tors case; simply they did after that Gretzler Tison, at spelled 129 Ariz. both out judges provided with the label “relish.” 352, upon relied: 633 P.2d which Gretzler at provided Another factor which we murders, given of the The senselessness gratu- label in was the infliction of Gretzler [their inability of the victims thwart itous on the victim. See violence especially in an iso- captors’] escape, such (citing at 11 135 Ariz. at 659 P.2d child, area, a young fact that lated infliction of Ceja proposition for the old, no posed who years less than two is a factor gratuitous violence on the victim indiscriminately captors, threat to demonstrate heinous or “we have found mother, his com- shot while in the arms of However, mind____”). depraved state slayers pels the conclusion that thе actual announced already Ceja that “defen- possessed shockingly state of mind. evil barrage his continuing conduct in dant’s violence, abusing inflicting his wounds pointed 135 Ariz. P.2d at 11. We necessary victims, beyond point to fulfill Lujan, out in 124 Ariz. Gretzler that steal, beyond point plan even the nec- Blazak, 604 P.2d at and State essary kill, circum- is such an additional denied, 643 P.2d cert. depraved ... nature so as to set stance of a 74 L.Ed.2d ” apart norm’ Gret- from the ‘usual mere “[t]he indicated that existence zler, (citing at 11 victim, in helplessness senselessness 496). Ceja, Ceja, Ariz. at isolation, always holding not lead to a need Gretzler, gratuitous like held that violence depraved—” the crime is heinous or that simply de- depravity; indicative of was 52-53, 659 P.2d at 11-12. How at marginally in terms differ- scribed the factor Gretzler, ever, judge, deciding after a trial If a “gratuitous.” the ent from label helpless murders of victims which senseless holding judge adequately guided the is depraved, has to especially are heinous is of de- “gratuitous violence” indicative that the which the rely on same information Gretzler), judge’s (e.g., then the dis- pravity Gretzler; prior the factual differences had to equally by cases which is channelled cretion Tison, Ortiz, on the one between and Clark “unnecessary probative violence” indicate hand, Lujan on the other. and Blazak depravity Ceja). (e.g., of distinction, not elaborate on this Gretzler did nor do we it should have. Unit supplied we a believe

The next factor for which Supreme made clear of ed States Court Wal was “needless mutilation label Grеtzler Gretzler, justice a reduced to theo Ariz. at ton that cannot be the victim.” See Vickers, rem; presumed judge will to the trial be (citing v. at 11 659 P.2d (1981), narrowing facts. 497 apply case law to the at 3058. 638 P.2d 696 S.Ct. 131 Ariz. U.S. State v. Smith. 29. (F)(6), it decision, would finely all. If had narrowed however Gretzler The Gretzler Georgia, Gregg v. pursuant language, provides no have done so to narrowing for combed (F)(6) L.Ed.2d 859 the that not of factor construction Gregg involved Godfrey, because not plucked directly prior decisions of from factor, Godfrey did vague while court, the use of a respect in this the decision was explicitly However, opinion not. the Gretzler find the purely appellative. untenable We (applica- Gretzler, Gregg problem by listing ap- held that neither decisions notion factor) Godfrey prob- of nor the attaching vague tion factor and new plying properly nar- (wrongful application lem of a previous holdings, somehow created labels factor) (F)(6). new, If rowed were issue Gretzler: constitutional version case, could have had been the we not First, may fail to highest tribunal a state’s affirmed Had Gretzler’s sentence. Gretzler adopt its statute suffi- a construction of new, narrowing interpretation announced discre- ciently narrow make prior our decision in that that did not exist limited.” “suitably tion directed here, case, then argues Gretzler tri- Georgia. Secondly, the state Gregg v. resentenced. himself would have had be may stray in an case from bunal individual not the Because case. Gretzler Such constitutionally con- an narrow otherwise law, catalogued case it does merely extant (revers- Godfrey Georgia struction. See v. to the watershed status defendant not rise application Georgia’s ing individual one now attributes it. statute). penalty death Neither these problems are here. We believe The Richmond footnote 2. statutory phrase “especially that the hei- first footnote in Richmond stated that Our nous, depraved” has been con- cruel yet adequate- factor not “had fashion, constitutionally in a narrow strued pursuant Godfrey Georgia, ly narrowed properly applied in individual has been cases. (1980), at of defendant’s second time (cita- Gretzler, at 9 sentencing. until This did not occur omitted). tions 576 n. 886 P.2d at Gretzler.” Ariz. at (citation omitted). 1332 n. We now con- Applicable federal law clude this statement is incorrect two rea- First, nothing Godfrey to with sons. do interpreta- adopt Even if wholesale unconstitutionally vague narrowing aggra- Jeffers, provided tion in Lewis Gretzler Godfrey, vating circumstance. Court cited in the lone case Richmond footnote analyzed constitutionally narrowed factor. proof that the factor was nar- 446 U.S. at 1766-67. rowed case does in Godfrey The issue was whether the Geor- support proposition it is for which cited. gia improperly applied court had the factor. Jeffers, Supreme United States 775,110 Jeffers, 497 S.Ct. at 3099 See U.S. at panel reversed the decision a divided (“In however, Godfrey Georgia, plurality Appeals the Ninth Circuit Court of although Georgia held of the Court ground had vacated Jeffers’ “sentence on narrowing adopted a Court had depraved’ ‘especially ... or heinous (b)(7) of Georgia’s construction subsection unconstitutionally vague was as circumstance circumstance, aggravating the death sen- 772-73, applied him.” 497 at at issue could not stand because no tence added). (emphasis Jeffers, like S.Ct. at 3098 state had evidence existed that the courts involve Godfrey, did not the issue whether narrowing construction to the applied the (F)(6) Instead, adequately narrowed. was case.”) Thus, Godfrey imposed of that facts the the involved issue whether Jeffers (F)(6) duty upon this to correct no the vacating acted in properly Ninth had Circuit factor, suggests. as the Richmond footnote grounds Jeffers’ on the the sentence (F)(6) Second, stating adequately in narrowed had not been the footnote is incorrect properly applied narrowing at in that case. accomplished that Gretzler (1988)), Moreover, 100 L.Ed.2d 372 in the United Lewis v. Jeffers vile, wantonly “outrageously or Georgia’s Supreme did not decide when States Court (held to or inhuman” circumstance (F)(6) narrowed, horrible the but factor had applied Godfrey in improperly have been prior to simply that it had been narrowed the 420, 432, 100 Georgia, 446 U.S. imposition in of sentence that ease. See (F)(6) (1980)), from our 64 L.Ed.2d 398 777-78, 110 at 3100-01.2 The U.S. at constitutionally aggravator significant “in two Arizona, 497 U.S. Court relied on Walton respects.” S.Ct. at 3057. 497 U.S. at 110 S.Ct. of those considerations to We find the first (F)(6) in proof that Arizona has construed in dispositive be this case: No- constitutionally sufficient manner. Maynard Godfrey the defen- both [I]n Supreme an- in did Court where the Jeffers by jury---- was When dant sentenced narrowing in had occurred nounce that this senteneer, it essential jury is the final is fact, only In Gretzler. cites Gretzler Jeffers jurors re- properly the be instructed once: pro- sentencing garding of the all facets light Supreme Arizona Court’s the jury enough It to instruct the cess. is narrowing “especially construction aggravating cir- the bare terms of an depraved” aggravating ... or cir- heinous vague unconstitutionally cumstance that is Gretzler, cumstance, see State v. import of is the our on its face. That 52-53, P.2d, (listing fac- at 11-12 holdings Godfrey---- Maynard tors), Supreme could the Arizona Court logic place [T]he of those cases no reasonably respondent have concluded that by sentencing a trial the context of “especially committed murder in an judges presumed judge. Trial are depraved ... heinous or manner.” making apply the law and to it know at 3104. Con- 110 S.Ct. Supreme If the Arizona their decisions. with spicuously, Gretzler was cited of the Court has narrowed definition Jeffers (F)(6) ap- regard adequately to whether was depraved” “especially cruel or adequately nar- plied, not whether it was circumstance, aggravating presume we reference to Gretzler is rowed. judges applying are that Arizona trial Jeffers’ interpretation; our Gretzler consistent with the narrower definition. simply “listed factors.”3 added). sentencing judge, (emphasis Id. jury, has access unlike support Nor the conclu does Walton prоvided reasoning prior decisions of the (F)(6) not narrowed sion that factor was court. If those decisions have nar- state Supreme until Court in Wal Gretzler. factor, presumed rowed distinguished “especially hei ton Oklahoma’s narrowing applied the have definitions. nous, atrocious, aggravating cir cruel” (found sentencing judges Maynard did not cumstance to be invalid Gretzler 356, 363-64, simply easy guidance. It was Cartwright, S.Ct. with “new” prop- narrowed we the issue of whether 2. The issue in was whether Jeffers erly applied prior properly factor in that case. See Court in before the Gretzler 497 U.S. at 110 S.Ct. 3098. The having majority opinion We read the Jeffers Jeffers. decided to address the issue of whether dissent (F)(6) rejected the conclusion. dissent's had been narrowed Gretzler. (Blackmun, U.S. at 3106-12 persuasive do we find the dissent’s reli- Nor J., dissenting). position The dissent’s was that upon dissent as an accurate state- ance the Jeffers only vague prior was not but ment of the issue in that case. Had Jeffers by not been that the factor had narrowed Gretzler day, rely on it. As carried the would dissent rejected subsequent position, This cases. Id. is, majority opinion we are bound Walton, majority in is not Jeffers fact, language therein. we be- contained binding majority law. A support today’s provides lieve that dissent further constitutionally nar- has held the factor to be position. majority, The confronted for our by interpretations the this court. Jeffers rowed of Jef- by unduly that it relied the dissent's contention fers, U.S. at 110 S.Ct. at 3104. Just as (F)(6) upon point as the at which by Gretzler we not the of the are bound cоnclusion Jeffers narrowed, narrowed, (F)(6) even to mention that conten- failed to been dissent as whether has by we are not bound the dissent's conclusion tion. also judge, by made the trial ing aggravation of is point; digest previous of reference the (F)(6) jury. Although guidance than application requires of the factor. who less Arizona, (citing prior attach deci- Walton F.Supp. Gretzler did labels some at 1087 3057). relish), (e.g., (e.g., sions reiterate others at 110 S.Ct. at We senselessness), Woratzeck, arrange in discrete them the in cited approach concur with Lewis, categories, requires presume F.Supp. Walton that we favorably Gerlaugh in (D.Ariz.1995). of judges capable trial been inter- have is not Defendant prior of to our preting opinions this court merely he resentencing because entitled to synopsis. Gretzler before Gretzler. was sentenced directly At one court address least federal II. entitled to defendant Whether ing this same conclu issue reached the claim, present of relief reason Lewis, In the federal sion. Woratzeck petition asserted in his fourth Rule district held that of Gretzler “[a] court review relief, post-conviction did that he for Supreme that the Arizona Court did discloses effective assistance not receive little more than review and summarize its sentencing in his second counsel at previous penalty death decisions.” 863 (D.Ariz.1994). F.Supp. That court rejected argument that Richmond v. History Challenges A. Defendant’s

Lewis, his Sentence proposi stands for the pre- arguments Some of are dеfendant’s tion that the factor was not narrowed inadequate development of the sented with “Rather, Supreme prior to Gretzler. history In of this convoluted case. order only proper appel Court decided whether a explain rulings, the court’s first reweighing light late in of the was done fact present an historical record. majority Supreme of the Arizona aggravating invalidated one circum represented by Defendant has applied stance Richmond’s Id. case.” lawyers nearly least nine over two decades challenging course his 1977 conviction We concur with the conclusion Worat- degree subsequent first murder and his zeck that Richmond v. Lewis did ad- ag- At sentence death. defendant’s 1977 dress the issue whether was nar- gravation mitigation hearing, defendant’s Richmond, prior rowed Gretzler. counsel, Gary Wollsehlager, presented address, appeal, state did consti- mitigation all of the evidence in contained in tutionality application of the trial court’s Wollsehlager the presentence report. also but, instead, aggravating circumstance testimony jurors introduced of one of the constitutionality of the Court’s prove jurors that at least some ‍​​‌​​‌​‌​‌‌​​‌‌​​​‌‌‌‌​‌‌‌​​​‌‌​‌‌​‌‌‌​​‌​‌‌‌‌​​‍believed application. prove The state did not need to actually Alonzo Luis’ brother com- easily prove the former when could more sentencing, At mitted the murder. the trial the latter. We fail to see how Richmond judge psychiatric three reports considered interpreted having can be resolved the neurolоgical report.4 judge and a then given clearly issue the Court stated: Luis sentenced Mata to death. argue “Respondents do not factor adequately prior peti- had been narrowed appeal peti- filed both an and a Defendant resentencing.” tioner’s post-conviction through tion for relief Wolls- case, S.Ct. at 534. The issue this con- chager (although he was subse- dissent, trary (infra to the assertion (James represented by quently new counsel 2), not before the court in Richmond appeal). form Kemper) PCR v. Lewis. warning, top of the form included Woratzeck, large print, informing the federal held that provided RAISE the decisions to Gretzler ade- “FAILURE TO ANY KNOWN quate narrowing ... BAR because Arizona find- GROUND WILL ITS BEING hearing clear 4. The trial made in 1977 that he tence ... included reference presented "all the matters at the sen- all evidence at the trial.” considered submitted to check next including boxes to The included barred and RAISED LATER.” form issues, Though six he checked potential arguments. of with which defendant list boxes issues, again if he to the issue. to could check wished raise chose not the defendant of to not boxes next right Defendant did check the denial of the constitutional “[t]he raise right to ...,” denial of the constitutional “[t]he lawyer or “the competent ... to ...,” competent lawyer ... a or “the exis- newly-discovered material----” existence of material____” newly-discovered of tence of the claims raised defendant One appeal Neither the nor the PCR raised of his was the voluntariness his second PCR mitigating or ineffective issue as evidence responded that this The state confession. of counsel. assistance replied that precluded. claim was Defendant resentencing At in No defendant’s to the failure precluded, if it was it was due 1978, Wollschlager again represented vember represent him effec- appellate counsel to of presented no new Wollschlager defendant. Thus, the claim tively. first raised defendant evidence, argu the court to the but did refer almost five assistance of counsel of ineffective concerning previously he made defen ments sentencing reply years after his second age, background, mental abili dant’s lesser response voluntari- state’s to defendant’s the ties, impairment to intoxication at the due claim in his second PCR. ness crime, passion, heat lack time felonies, cooperation prior with violent sup filed his defendant June police, testimony of Luis’ and the sisters fif petition, raised plemental Rule (including Castrejon).5 Grace in these sentencing issues. Included teen considering mitigating After all evidence court issues were claims that defendant, presented including supple- intoxication, lack of edu failed consider mentary presentence report, giving and after cation, to kill as specific lack of intent and opportunity to address Luis Mata judge, in de mitigating evidence. The trial (which declined), he the trial court court PCR, rejected nying relief on the 1983 defen trial Mata to death. The again sentenced arguments as to ineffective assis bоth dant’s specifically on defendant’s remarked judge trial mitigation. tance as age, mitigating factors of lack claimed noted that: intellect, intoxication, passion, provo- heat of cation, crimes, coopera- no violent presented court finds no evidence [T]he police, mitigating no and found that tion with represented that Luis Mata was factors existed. any way appellate level in which failed v. Watson requirement. ... meet the petition for Defendant filed his second fact, quite appears to the the evidence repre- post-conviction relief in 1988. He was contrary. This not court would second petition by attorneys Elliot on this sented strategy of rais- guess appellate counsel’s and William Walker. At Glicksman ing only he had a rea- time, signed a the issues believed again counsel defendant success, rather than chance of warning that claims raised would be sonable form testimony stay, ly his to which argument mentioned in order oral on the motion to 5. At judge’s complains of the trial state- We fail to see defendant’s trial counsel referred. ruling while third ment made defendant's prejudice. how this invited error constitutes testimony considered from PCR he judge if trial was confused to the Even sentencing in sisters at defendant’s hearings, made one of the he clear contents of resentencing mo- in 1978. Neither defendant’s sentencings entry he 1993 minute both his supplemental stay itself defendant’s tion to nor relating "the material mental considered Defendant for brief referred this statement. health, histоry family background Luis contends, argument, first time at oral believe, infra, that the Mata.” We also noted judge up mixed that the trial statement shows objec- appropriate time for defendant to raise an pres- less than brothers. record shows two Wollschlager’s reference to the tion to erroneous At the time of the sentenc- ent counsel contends. PCR, testimony appeal or first was on sister's specifically ing, asked the defendant’s counsel now, argument certainly on a oral testimony judge sis- to consider the trial ters, stay support of defendant’s fourth motion to including Castrejon. Though it Grace PCR. mitigation, dutiful- lacked value as

331 son) habeas petition a for a writ of every filed gunning” possible issue which “shot The corpus district court. in the federal urge. counsel seems to court, denying in its 1987 decision district although pointed trial that The court out action, arguments four addressed defendant’s mitigation claimed evidence was defendant time at the mitigation: intoxication regarding sentencing, there was no not considered at disorder, history murder, psychological of the showing to effect.6 that addiction, edu- and lack formal drug motion for re Defendant filed a cation, and stated that hearing 1984, again he in October in which that show was on Mata to [t]he burden incompetence appellate coun asserted the preponder- existed a mitigating factors Lee, The trial court held that sel. trial upwas to the the evidence. It ance of Barnes, Washing v. v. and Strickland Jones the evidence to detеrmine whether court ton supported deny the decision mitigating circumstance. constituted cases and others indicate relief. These Here, the factors judge trial found four the scope of judge a trial acts within the discre mitigat- constitute a offered did not Mata claim deciding whether a defendant’s tion capital punish- ing precluding circumstance counsel has merit. of ineffective assistance of only the requires The Constitution ment. Appellate counsel’s review defendant’s miti- consider all the sentencer to hear and highly “be deferential.” performance will defendant offers. gating evidence 689, Washington, 466 668, Strickland v. U.S. agree the court requirement is no There (1984).7 2065, 2052, 674 104 S.Ct. mitigating. with the discretion, “Absent an abuse we will court post-convic The Circuit affirmed district a trial court’s denial of Ninth disturb 1, Amaya-Ruiz, v. opinion July in a issued 1991. State per relief.” 166 Ariz. curiam tion Ricketts, 467, opinion cert. Mata v. 152, 180, 1260, F.2d (9th denied, superseded, 981 F.2d 397 amended and 111 S.Ct. — denied, Adamson, Cir.1991), -, cert. (1991) State (citing U.S. L.Ed.2d 129 (1994). denied, cert. L.Ed.2d 348 464 S.Ct. 204, 78 L.Ed.2d 178 Septem- filed his third PCR in Defendant (1983)). will reverse a conviction due We trial petition appeared ber at the 1992. exacting ineffective under assistance bearing “Ari- envelope in an the name court only performance standard where counsel’s Project,” Representation be- Capital zona but the circum unreasonable under all petition, named in cause no counsel was probability is a stances and there reasonable appointed court the Public Defender trial errors, unprofessional that but for counsel’s Mata’s After the Public act on behalf. proceeding result have been would conflict, of a withdrew because Defender Amaya-Ruiz, different. Rood, eventually appointed John who court P.2d at 1288. Finally, appointed also withdrew. Antieau, supplemental peti- John who filed a After this court set an execution date for (Daniel January in March new Patter- tion in and another defendant’s counsel sentence, easy all for a explicitly special and it is too court had stated adverse 6. court, examining verdicts in 1977 and 1978 that it had considered it has counsel’s defense after mitigating none unsuccessful, all evidence and found of it to be particu- proved to conclude that mitigating. Defendant seems to believe that lar of counsel was unreasonable. act or omission only mitigating evidence trial court “considers" attorney performance re- A fair assessment of imposes mitigated The law is to if it sentence. every quires made to eliminate the effort be long contrary. So the trial court consid distorting hindsight, to reconstruct effects of evidence, ers the is not bound to con conduct, challenged circumstances counsel’s leniency. clude the evidence calls for per- from and to evaluate the conduct counsel’s Zaragoza, spective Because of difficulties at the time. Wainwright, 732 F.2d Raulerson evaluation, making must a court inherent denied, (11th Cir.1984), cert. strong indulge presumption that con- counsel’s (1984). range within the wide of reasonable duct falls Strickland, professional 466 U.S. at assistance.” tempting “It is too for a defendant to sec- 7. all omitted). (citation ond-guess S.Ct. at 2065 counsel’s assistance after conviction or right as- of effective (refusing to extend the April requested Antieau pro- Project to state collateral Capital of counsel Representation the Arizona sistance corpus proceed- ceedings be to as co-counsel and or federal habeas authorized associate requested supplement ings). an extension of time supplement the filed PCR. He another on now before this court Defendant comes July Cap- In August the Arizona stay arising his execution from a motion to Project Representation

ital filed own re- its in his motion fourth Defendant claims PCR. added, amended, ply supplement- and which stay mitigating evidence was preceding ed claims. the by the trial court. properly considered The trial court decided November assis-

that defendant’s claim of ineffective B. Preclusion Wollschlager pre- tance of counsel as to was claiming precluded from Defendant is cluded, alternatively and without merit. sentencing was ineffective his counsel Specifically, judge noted that: mitigation for two presenting evidence motions, years pretrial after the Sixteen First, “newly presented this he has reasons. trial, hearings, the voluntariness pre thus and discovered evidence” before for trial and the two sentenc- motion new Second, again. presenting from cluded Project ings, counsel for the with the bene- he has not ineffective assis the extent raised of hindsight of alone and the affidavits fit presented to which tance claims or evidence psychologists never or who two who saw post-conviction pro previous he had access probably petitioners for the never heard of intelligently, knowingly, has and ceedings, he case, of claim years first sixteen this now right so. voluntarily waived the to do as- Wollschlager provided ineffective Mr. sistance____ §§ 13-4240 and Rule 13-4231 to A.R.S. Legally ... finds court Ariz.R.Crim.P., right to govern a defendant’s conclusively precluded. to be these claims 13—4231(1)— § post-conviction relief. A.R.S. here importantly, more the record Even (7) 32.1(a)-(g) types of Rule list the Wollschlag- and clearly shows that counsel also jurisdiction in which a court has claims over every of evi- presented er available item proceedings. Both the stat- post-conviction regard to defendant’s com- dence with allow, alia, tried, condition, rule inter claims that ute and the petence mental to be his or violation the conviction sentence was of mind. and his state constitution, newly- the federal or state that defendant’s The trial court also held exist, may material facts discovered claim of ineffective assistance Glieksman require or sentence be conviction PCR and on his second was without Walker significant vacated, and there merit: 13^4231(1), (5), § change A.R.S. in the law. record Since the court knows and the 32.1(a), (e), (g), Ariz. Rule provid- shows that all of material was R.Crim.P. M[ata relating to Luis ed and considered sentencings, not once but twiсe for both However, and the rule both the statute validity the claim has same raising preclude “[fli- from claims defendants Wollschlager. Glieksman as to NONE. appeal nally adjudicated on the merits Wollschlager provided all Because any proceeding,” or previous collateral Luis there was and record indicates voluntarily intelligently not “[kjnowingly, refused to even fill out MMPI Mata trial, previous appeal, or in raised at psychiatric psycho- the two additional § 13- proceeding.” collateral A.R.S. provided who this court logical witnesses 32.2(a)(2)-(3) 4232(A)(2)-(3) (pre-1992); Rule sentencing, court for him at the second Moreover, rule (pre-1992). both statute and clearly precluded. finds this issue from a permitted the court to infer waiver “after Moreover, failure to raise an issue held that the issue defendant’s being on a advised assistance counsel PCR effective so, he failure raise necessity that do his legally precluded given holding in Bonin (9th Cir.1993) previ- him in any ground then available to Vasquez, F.2d convulsed____ Luis was his head and proceeding in which he was ous Rule children made in school and 13- slow learner represented by counsel—” A.R.S. him____ 32.2(c) diag- 4232(C) (pre-1992). Luis has since been (pre-1992); fun Rule functionally mentally retard- nosed as ed____ stay may granted A be execution quickly He became addicted forth only if the defendant sets this court genetically drugs, as he was alcohol those stay particularity “with in motion to do. predisposed precluded under raised which are not issues if “new” facts argues that these Defendant 13-4234(F) (1995 § § 13^4232.” A.R.S. who saw psycholоgists been known what Supp.).8 Defendant failed do 1970s, he would have received him in the late with requires. He did not set forth statute a differ- diagnosis and therefore a different under precluded particularity the issues not The new evidence is also sentence. ent Instead, § defendant mere A.R.S. 13-4232. he received for claim that basis defendant’s conclusory paragraph at ly included a sentenc- assistance of counsel at ineffective stay seventeen-page of his motion to end Wollschlager ing, because defendant claims precluded are not read: “These claims uncovering pre- in not was ineffective they newly upon rest discov because either senting evidence. this facts, change in law”.9 or recent ered “newly presented dis Defendant has not preclusion Although we decide the issue facts, requires, § as A.R.S. 13-4231 covered” defendants grounds, other we also note that for he has had access but facts to which comply requirements of not with the who do throughout protracted eighteen years these 13-4234(F) from may § be barred A.R.S. proceedings. Simply because defendant obtaining post-conviction relief. first presents with evidence for the the court Defendant claims that his death sentence is mean that such evidence time not does he has “amassed be vacated because should Dogan, “newly State discovered.” See mitigation additional evidence substantial 1264, 1269 (App.1986) 724 P.2d presented resentencing aat that would be (“Newly-discovered alleged as material facts hearing.” evidence which defen- The “new” grounds post-conviction are facts for relief includes facts as: dant has “amassed” such light the trial and which which come after hydrocephalic produced have bom at home could not been discovered Defendant was children____ Mexico, If through diligence.”). at trial fifth of reasonable sixteen position provide nu throughout anyone in a He severe headaches was suffered childhood, neurological psychologists (court-appointed im- suggesting his merous otherwise) this case who have worked on pairment____ experienced Luis substan- pesticide background information to which problems from ... with the tial health him emotionally, points, now it was defendant exposure____ Luis defendant as to defendant’s physically deprived ... Luis’s fa- self. All of evidence well as history was available defendant ther was a severe alcoholic who became during sentencings, his direct extremely counsel his two violent when drunk---- When truck, six, previous three PCRs. appeal, he fell off a landed on and his Luis was amendments, petitioners right have the to effective assis- subsection to the 1992 this 8. Prior petition post-conviction proceedings. required the reasons that the "set forth tance of counsel However, year raising argument the claim within one fails because the for not defendant’s affirming conviction. If appeals’ date the mandate overruled decision Krum was court of Krum, why petition does not state the reason in State v. 183 Ariz. one-year brought petitiоn within the was not in which 599-600 petition things state these or the does limitation prior "ineffective on a we held that assistance veracity lacking finds them valid, but the court petition claim PCR substantive petition credibility, shall be dismissed with- Krum, because, petitioners like Rule under 13-4234(F). requiring response.” A.R.S. out right to effective is no federal constitutional there Thus, proceeding. even if counsel in PCR existed, right statutory assistance effective "change in to which refers law” defendant Krum, remedy provide for its Rule 32 would 893 P.2d 759 is State v. (footnote omitted). Krum, appeals (App.1995). the court of held violation.” chose to presume prejudice where defendant ignoring Even defendant’s own role in fail hearing, in- ing provide court-appointed mitigation mental health represent himself at (see evidence, supra at tentionally mitigating witnesses with information withheld 1048), none of the so-called “new” counsel in argued assistance of ineffective has, varying evidence is new. Defendant approach This post-conviction proceeding). degrees, argument he now makes made the rejected by Arizona courts: has been regarding mitigation on at least four hearing only difference at the Rule 32 resentencing, defen occasions. At his 1978 presented of detail the amount mitigation his back presented dant both trial court ruled that its the disorder. The (See supra ground and his mental abilities. have the same even sentences would 1045). P.2d at On his second presented earlier. if the evidence had been PCR, claimed as error the sen something is not wе can That assessment tencing court’s failure to consider his lack overturn on review. argument of and raised the education Morales, (See supra ineffective assistance of counsel. 756, (App.1991). 1046). 330, his federal at 916 P.2d at On all, preclusion If sets boundaries at arguments petition, made habeas defendant endlessly raising prevents a defendant from disorder, concerning psychological drug his before, claiming each claims he has raised (See addiction, and lack of formal education. im- an issue of first new incarnation be 1047). supra 916 P.2d at On his third Otherwise, criminal defendants pression. PCR, argu defendant raised the identical coun- endlessly litigate effectiveness of could petition.10 that he raises on this ments (com- claiming their latest version by sel execution, stay in Finally, his motion to case, which, in this plete with evidence points presen- out that the defendant himself presented many years be- could have been report, by the trial in de- tence used fore) presented petitions earlier was not on (see sentencing supra at fendant’s 1977 inadequate representation. to counsel’s due 1047), mitigation “contained evi- 916 P.2d approach would lead to a never- Such an history drug that Mr. Mata had a dence ending tunnel of PCRs. heroin, addiction, including and severe alco- holism, injury a severe head suffered C. Waiver recurring, per- in small child which resulted headaches and had ‘at best borderline sistent failure to Defendant asserts that the that he intelligence.’” Defendant asserts of counsel raise an ineffective assistance evidence, startling which his attor- new (based present mitigating claim on failure to introduce,

ney failing in to discover or erred evidence) (as in his second PCR in 1983 well verdict had might have led to different 1978) first, operate as a as his did not sentencing. At presented it been finding of support a “[t]o waiver because time, same defendant contends that much of (c), the under subsection [Rule 32.2] waiver rejected wrongly this same evidence was petitioner record must indicate by judge. eighteen years ago the trial necessity raising appeal of the his aware inject presents claim he now and that he know may not the record with Defendant intentionally voluntarily waived his incompletely ingly, and by arguing an issue error (citing claiming right present his claim” then inadequately on a PCR and Carriger, 143 Ariz. that the omitted subsequent PCR evidence denied, (1984), 1111, 105 cert. is now “new” evidence. See PCR (1985)). (9th Lewis, L.Ed.2d 864 Howev S.Ct. Harding 834 F.2d above, denied, er, Cir.1987), both statute and rule as stated cert. (1988) permitted (refusing effect at that time the court L.Ed.2d PCR, posure pesticides, alcoholic father who ter- defendant claimed: In his third family and abused Petitioner and other and interview rorized counsel failed to locate [T]rial background members, significant injuries, knew Petitioner’s witnesses who lack of head history testify of birth care, could about his and who learning and disabilities. medical malnutrition, poverty ex- injuries, severe and operate to PCR forms to raise dant now raises. from defendant’s failure infer waiver necessity to raise being petitioner sentenc- an “aftеr advised advise the issue so, necessity he ing judge requirement, do con- and to fulfill the all issues any ground his then available failure to raise pre-amendment versions tained in the previous proceeding Rule 32 32.2(e), to him in a 13-4232(C) Rule § A.R.S. by counsel----” represented which he was petitioner. judge so advise the citing P.2d at supra at See provide ade forms did not Even if those 32.2(e) 13-4232(0) (pre-1992); Rule A.R.S. inference knowledge quate to allow (pre-1992). every waiver, challenge may defendant finding supports a that defen- The record made trial counsel tactical decision his ineffective assistance dant waived his Lee, sentencing. In State (and mitigating as to counsel claim claim 153, 158, 159-60 evidence) voluntarily, inten- “knowingly, . court held that: tionally” in and 1983. The Petition Relief filed Post-Conviction of trial power questions [T]he decide April in June was a form strategy tactics rests with counsel capital front letters stated to call as what witnesses decision page: tactical, strategic Faretta decision---- ALREADY NO WHICH HAS ISSUE California, AND DECIDED ON BEEN RAISED (1975), and the A.B.A. PETI- APPEAL IN A PREVIOUS OR that a criminal defen- Standards indicate BE USED A FOR TION MAY AS BASIS dant, represented by agreed to having be THIS PETITION counsel, by is bound counsel’s decisions EVERY TAKE CARE TO INCLUDE a to and that matters entrusted counsel RELIEF WHICH IS GROUND FOR therefore, cannot, suc- criminal defendant NOT KNOWN AND WHICH HAS cessfully of claim ineffective assistance PRE- BEEN RAISED AND DECIDED (Citation respect to them. counsel with VIOUSLY, SINCE TO RAISE FAILURE omitted.) PETI- IN THIS ANY SUCH GROUND deduce, BAR BEING RAISED a TION ITS us from WILL Defendant would like to LATER by passage eighteen made cold of record to years, counsel at failed possible forth a list of The form then sets by investigating po- protect his interеsts relief, each, grounds with boxes next to so mitigating evidence from Mata’s tential simply a could make a mark However, background. Wollschlager has he box next to each claim wished to raise. which indicates submitted sworn affidavit “The denial of the One of these claims was: family as representation by investigated Mata’s right to he members of constitutional lawyer every stage aggravation/mit- critical of competent possible witnesses at Mata’s “The proceeding.” by family Another claim was: hearing. He informed igation newly-discovered of material which existence Luis “had a bad Mata members to requires the court vacate the conviction Alonzo, they nothing influence on sentence.” behalf, they say in Luis’s and that good to going try to save Alonzo.”11 to Wolls- were first and second PCR forms

Defendant’s chager’s strategic call these decision clearly raised be stated that issues not would family well within very members seems precluded and listed the issues defen- arguments gued use of heroin was Many that evidence of Luis’ now made on behalf Representation Capital Mata the Arizona and should not be considered irrelevant acknowledge Project simply record in fail to guess We not second trial counsel’s court. will example, Project For now takes this case. the strategy, seems to have been avoid which drug position evidence of Luis Mata’s which showed his client introduction of evidence properly addiction was not considered abuse and drugs cast in the use of hard was involved Hоwever, mitigation by at the the trial court. as aggravation/mitigation light. negative his client Wollschlager hearing, ar- exception be the likeli- competent decision-making.12 of such an would bounds litigation continuum of hood of an infinite D. Ineffective Assistance of Counsel petitioner If a many criminal cases. Defendant’s contention seems to be competent right a Sixth Amendment arguments the extent he waived post-convic- her first state counsel his or by failing the evidence on proceeding because that is the first tion PCRs, this failure was due to ineffective as of trial forum in the ineffectiveness which post-conviction sistance of counsel. Defen alleged, follows that the counsel can be it position the notion that he dant’s relies on right Amendment petitioner has a Sixth representation peti on his deserves effective post-conviction counsel the second state relief, that he can post-conviction tion for so proceeding, for that is the first forum protect right to effective counsel at trial challenge he or she can raise appeal. argument If were cor and on first performance based counsel’s rect, entitled to effective and defendant were post-conviction proceeding____ And state petition, he assistance of counsel on his first result, “ex- go____ As a so would representation effective on the would need ception” the rule. To obvi- would swallow might way petition, or he have no second absurdity, hold that ate such an right establishing that his was violated on the right Amendment protections of the Sixth petition If counsel on the second first. either state to counsel do not extend to ineffective, require petition he would a third proceedings or federal habeas collateral challenging the second. Defendant would be corpus proceedings. representation, entitled not to effective but Bonin, This same rea- 999 F.2d at 429-30. representation. perpetual appeals to hold that soning led our court of “ right to an at- is no constitutional ‘[t]here concern led the Ninth Circuit This same proceed- torney post-conviction in state Appeals protec- to hold that “the ings____ Consequently, petitioner cannot right Amendment to coun- tions the Sixth constitutionally ineffective assistance not extend to either state collateral claim sel do proceedings.’ pro- counsel in such This is true proceedings corpus habeas or federal Bonin, 430; though a state-created ceedings.” Lam- even there exists 999 F.2d at cf. Barker, 263, 264, right post-conviction.proceed- to counsel on mie v. 915 (1996) (“The ings appellate pro- pleading after exhaustion of the defendant Armstrong, Ariz. v. right appointed coun- cess.” State does not ... have a (App.1993) beyond 862 P.2d 234-35 proceedings in Rule 32 the trial sel (quoting Thompson, 501 U.S. mandatory disposi- Coleman court’s consideration 2546, 2566, Smith, 722, 751-53, PCR.”); Ariz. S.Ct. tion of the omitted). (1991)) (citations (“Our (1996) ‍​​‌​​‌​‌​‌‌​​‌‌​​​‌‌‌‌​‌‌‌​​​‌‌​‌‌​‌‌‌​​‌​‌‌‌‌​​‍456, 459, constitu- require, do not tion does not and the rules point at which we could draw a find no We extend, right appointed counsel for distinction; if defendant deserved rational indigent proceedings defendants in Rule 32 first PCR to representation effective on his beyond mandatory consider- the trial court’s litigate appeal, then it must effectiveness disposition of the PCR.” We find ation and effectively represented on follow that he be persua- reasoning the court’s in Bonin to be litigate the first. This the second order to sive: argument is based on is because defendant’s right ill-begotten notion that the to effec- practical why we will not

There is a reason empty appeal counsel on is without effec- Defender’s recommenda- tive follow the Public challenge appellate counsel to counsel’s right to counsel to tive tion extend the [to According to impact performance. defendant’s own first The actual PCR]. defendant’s however, proceedings. unnecessary prior appellate post-conviction emphasize, or that it is 12. We noted, Also, Wollschlager’s as we have to the extent defendant’s to reach the merits of the issue argument presented failure to introduce "new” competence. of counsel's Defendant before, not been made it is waived mitigating on several occasions evidence has "new” evidence above, argument pre- past. because defendant did not make the As noted defendant is appeal prior and three PCRs. making arguments made in cluded from he has paid to the Rich- view, my attention on the logic, right to effective assistance rеmarkable. Rather mond footnote quite meaningless would also be without first PCR it is stating simply the obvious—that than in which could proceeding another hold- to be dicta because and was intended petition on that was inad- argue that counsel majority ings appear footnotes—the infinitely regressive do not equate. reject We this attempts why to demonstrate painstakingly notion. It “incorrect.” particular footnote was obligated by the Arizona Constitu- We are so, moreover, despite the fact does attempt protect rights of the tion here aggravating factor is satisfied crime, right includes the victims making un- “especially finding, cruel” disposition prompt speedy “[t]o (hei- necessary to address the other elements of the case after and final conclusion upon in depraved) that were focused nous or Const, art. conviction and sentence.” West, the Richmond footnote. See State 2.1(A)(10). has, regrettably, al- This case (1993) 432, 448, long. If ready in the far too courts (“[A] finding three factors one of the accept argu- were to defendant’s ag- finding [the ] will suffice for ments, it, go like would this case and others exists.”). gravating factor indefinitely. Justice O’Connor’s We find defensive, Teague Lane to be I submit language particularly Hoping sound is, was, still compelling: the footnote correct recently as As statement law. finality, the criminal law is de- Without observed that United States The prived of much its deterrent effect. argument “no that Ari- there can be serious liberty life fact that are at stake depraved’ ‘especially zona’s cruel only that prosecutions criminal “shows aggravating facially vague.” factor is not finality’ should not ‘conventional notions Arizona, 639, 654, Walton v. have as much place in criminal as in civil 511.(1990). S.Ct. 111 L.Ed.2d should have none.” litigation, they not that majority in Walton nevertheless held The 1060, 1074-75, S.Ct. judicial of the that our recent construction (citation omitted). (1989) require- factor satisfies constitutional 693-98, 110 Id. But see id. ments. CONCLUSION (Blackmun, J., dissenting); at 3078-81 Upon stay mo- motion to is denied. 764, 784-98, Jeffers, Lewis v. state, warrant for defen- tion new (1990) 3092, 3104-12, 111 L.Ed.2d 606 will issue. dant’s execution (Blackmun, J., dissenting). pivotal ques- seems to be when this constitution- tion here MARTONE, J., FELDMAN, C.J., place. respectfully took I sub- narrowing al CORCORAN, (Retired), ROBERT J. Justice case law and common sense mit that both concur. establish Gretzler’ s five-factor definition of depraved” defining mo- “heinous or as that ZLAKET, Justice, dissenting in Vice Chief ment. part, concurring part. in Lewis, In Richmond 506 113 myself I find

I am not a fan footnotes. (1992), 411 general agreement L.Ed.2d defen- in with Honorable independent challenged re- Pennsylvania, who once dant this court’s Burton S. Laub sentence, majority “anyone who reads footnote view observed justices uphold judicial opinion knock at voted factor in a would answer a agree Rug- basis—cruelty, hei- wedding night.” but failed to his hotel door on his (1990). issue, nousness, Opinion Writing 177 Aldisert, depravity. The as framed gero J. O’Connor, however, by “whether the Su- I years, have succumbed Justice recent petition- has preme of Arizona cured enveloping increas- to the footnote culture vagueness Id. my writ- death sentence of error.” ingly relying on the crittеrs er’s little added). (emphasis at 531 persuaded me 113 S.Ct. ings. pending The matter “cured” oc- mistake that needed be urge in future. to resist such 338

curred sentencing judge gave “when the vague constitutionally into the narrowed. weight to an unconstitutionally vague aggra- Obviously, nothing there was until Gretzler’s vating factor.” particular Id. at 113 careful 537 enumeration of factors to added). Thus, (emphasis determining be we know that the considered heinousness or terms “depraved” yet depravity. language “heinous” and had not That is what the above been constitutionally clearly obviously narrowed at the time of indicates and what the state Richmond, sentencing agreed Richmond’s in March despite 1980. The its current agreed, state protestations contrary. but cited Gretzler for prop- to the osition reweigh- that this court’s more recent Moreover, it is what have said. “Gret- ing properly performed. had been zler is critical to applica- the constitutional Respondents argue do not that the factor ‘cruel, depraved’ tion of the aggra- heinous or circumstance____” adequately prior been narrowed vating King, petitioner’s resentencing. Thus it would (1994) 268, 286, 883 P.2d Judge Roylston have been error for give added). (emphasis As observed this court weight factor, to the if he indeed Vickers, in State v. 159 Ariz. 543 n. aggravating mitigating balanced the (1989), 768 P.2d n. albeit one resentencing petitioner, factors and re- again: of those dratted footnotes spondents agree now did attempted give narrowing We have engage in weighing process____ Nor interpretatiоn admittedly to these broad respondents do contend that the fac- subjective [heinous, terms cruel or de tor sentencing had no effect on the judge’s Gretzler, praved]. See State v. 135 Ariz. calculus and therefore was harmless. 42, 50-53, 1, 9-12, denied, cert.

Rather, they point to State v. 461 U.S. 103 S.Ct. 77 L.Ed.2d supra, (1983). subsequent which issued to the re- We believe we have success but fully 13-703(F)(6), [State Rich- narrowed and that we mond, (1983) 136 Ariz. 666 P.2d 57 applied ] interpretation have that narrow (Richmond II), provided and which consistently. ade- quate narrowing “espe- construction of the Milke, 118,125, In State v. heinous, cially depraved” cruel factor. we said: Jeffers, U.S., supra, See Lewis v. Court has determined that 777-778, S.Ct., (holding at 3101 “especially the term cruel or de- adequately Gretzler definitions narrowed praved” facially vague. Richmond v. (F)(6) factor); Arizona, supra, Walton v. Lewis, 40, 46, 528, 534, 113 S.Ct. U.S., S.Ct., at 3056- v. Ari- Walton (same). Respondents assert that the zona, principal opinion in properly Richmond II (1990). However, applied the Gretzler construction of the the Court has held that this court’s inter- (F)(6) factor, while the ig- concurrence pretation phrase of that meets constitu- factor, nored opinions and that both requirements. recently tional Most reweighed. argues Petitioner Lewis, Richmond v. 506 U.S. at principal opinion improperly applied Gret- 536, S.Ct. at the Court cited Gretzler as zler, that the concurrence did not re- narrowing “the construction of Arizona’s weigh. (F)(6) added.) (Emphasis factor.” Lewis, 47-48, Richmond v. at 113 S.Ct. at Barreras, Again, in State v. 181 Ariz. 534-35. 521-22, (1995), 892 P.2d 857-58 we said: Gretzler, State v. 135 Ariz. Although 659 P.2d the Gretzler factors are not If, Januаry exclusive, Milke, absolutely decided as the see State v. asserts, majority merely 118, 126, now Gretzler cata- Ariz. 865 P.2d loged prior cases but did they provide not create the now- rationally a consistent and standard, constitutional wondering one left reviewable standard for the otherwise is. (F)(6) what momentous vague event occurred between “especially or cruel facially factor, and 1983 that transformed the depraved” ensuring thus the con- Lewis, 46, 113 S.Ct. v. U.S. at Richmond pen- tinuing constitutionality of our death statutory aggravating “[A] wit: indepen- at alty facilitating our statute and if it fails to Lewis, unconstitutionally vague is factor ... Richmond dent review. See for the choice guidance 528, 536, principled 49-51, furnish 506 U.S. Thus, penalty.” and a lesser between death as “the nar- Gretzler (citing splitting when it majority engages hair (F)(6) Arizona’s fac- rowing construction of applicability. challenges Godfrey’s tor”). urge courts to trial We therefore consid- Gretzler apply the standards when that Gretzler Second, undeniable is ering aggravating circumstance. by this court relied on been the standard reviewing penalty where death cases true, implies, as Gretzler itself that It is or finding of heinous factor rests compilation five-pronged test was cursory review depraved. Even the most to constitute found cases factors that post-Gretzler reflect our decisions will 51-53, depravity. 135 Ariz. at heinousness or analyzing invariably refer to that case mean, 10-12. This does not 659 P.2d at Murray, E.g., death sentences. however, judges of trial the discretion 542, 570 Ariz. 906 P.2d guided those earlier adequately Waldеn, 595, 618-19, Georgia, required by Godfrey decisions, (1995). 997-98 (1980). best, majority the Su- judges Incredibly, ignores left to At those were Walton, Knapp criteria—dictionary plain language in preme defini- Court’s follow the Jef- Richmond, clearly fers, “depraved” indicates of “heinous” and that were tions applied than factor. Gretzler easily no understood and narrowed the more being defined. See majority opinion states: the words (1977). Alternatively, did the its decision Nowhere Jeffers attempt apply holdings from they could Supreme Court announce that this narrow- random, uncollected, conglomeration fact, ing had occurred in Gretzler. In Jef- eases that before Gret- only and often inconsistent cites to Gretzler directly once: fers juris- zler constituted capital sentencing our Supreme light of the Arizona Court’s inconceivable, howev- prudence. It is almost narrowing “especial- construction er, pre-Gretzler judge could aggravating ly depraved” ... or heinous particular would predicted which factors have circumstance, see State v. eventually singled out this court for be 52-53, (listing 11-12 Ariz. at treatment, being special or more or less factors), the Arizona example, how important than others. For reasonably could have concluded re- anyone know that senselessness could in an spondent committed the murder normally helplessness alone would not lead “especially depraved ... heinous “depraved”? finding of “heinous” or manner.” 659 P.2d at 11-12. at 3104. Con- Gretzler spicuously, cited in Jeffers majority’s respectfully I submit regard to whether was ade- with analysis of the Richmond footnote misses the applied, quately not whether it was ade- First, regard- ways in other as well. mark quately narrowed. reference Jeffers’ Godfrey an uncon- of whether narrowed less Gretzler interpreta- is with our consistent stitutionally vague aggravating circumstance tion; Gretzler simply factors.” “listed constitutionally narrowed fac- analyzed (emphasis Ante 916 P.2d at 1044 tor, underlying rationale the same—a added). view, majority my strains only applied if it facially vague factor can be unpersuasively, to reach this narrowing mightily, adequate con- but given an has been By plain language, its by Our footnote conclusion. struction the state court. Jeffers Godfrey refers to Gretzler as “the Supreme Arizona this established Richmond cited for (F)(6). narrowing nothing construction” jurisprudence Court’s capital tenet of Moreover, quoted, Supreme Indeed, previously cited Court more. v. Lewis stated again in Richmond proposition in Court Godfrey for the basic same “provided adequate Gretzler an agreement narrow- there has been from the federal ing ‘especially construction of the bench. depraved’ cruel or factor. See Lewis v. Jef- Finally, majority finds “untenable the

fers, (holding ... that Gretzler definitions notion that Gretzler ... somehow created (F)(6) adequately factor); narrowed Walton new, (F)(6)” constitutional version of because Arizona, (same).” ... 113 S.Ct. at Gretzler’s own sentence could not have been majority 535. ignore While the chooses to affirmed. Ante at 916 P.2d at 1043. unequivocal these clear and pronouncements, argument escapes The me. It is well settled parenthetical well as the Court’s descrip- appellate may a state cure a sen- holdings, tions of its own only conclusion tencing application vague aggra- court’s of a I am able to draw is that Gretzler trans- vating factor applying adequately an nar- depraved” formed the “heinous or standard Lewis, rowed construction. Richmond v. into a constitutionally aggravating sound fac- 40, 45-47, tor. 411 (citing Jeffers, supra; Lewis v. This court’s view of clearly is also Jeffers Arizona, Thus, Walton v. supra). Gretzler at odds with what the dissenters that case did not need to be resentenced because this thought had been majority decided. “The court, duty independently under its re- however, suggests, ‘narrowing that the con weigh, applied articulated and then a consti- struction’ was announced the Arizona Su tutionally narrowed standard. preme denied, cert. today’s I opin- concur the remainder of (1983).” 497 ion the final outcome. (Blackmun, J., U.S. at dissenting). disagreed The dissent with this

suggestion, arguing that Gretzler had nar nothing

rowed and that was unconsti

tutionally vague both before and after that

decision.

I surprised majori- am also rather that the ty here 916 P.2d 1056 position by rely- seeks to bolster its ing opinion on a federal district court that is Arizona, Appellee, STATE binding represents only on us and Lewis, single judge. view of a Woratzeck v. (D.Ariz.1994) (cited F.Supp. favor- GALLEGOS, Appellant. Michael Steven Lewis, ably Gerlaugh F.Supp. No. CR-94-0389-AP. (D.Ariz.1995)). importantly, ig- More significant nores number of federal Arizona, Supreme Court of judges quite who have opposite come an En Banc. conclusion. example, eleven judges “Thus, by of the Ninth Circuit stated: May offering a considering checklist for courts

(F)(6) circumstance, appeared Gretzler to ‍​​‌​​‌​‌​‌‌​​‌‌​​​‌‌‌‌​‌‌‌​​​‌‌​‌‌​‌‌‌​​‌​‌‌‌‌​​‍be attempt provide limiting construction

to the terms and their varied defini-

tions that would be able to withstand consti- Ricketts,

tutional attack.” Adamson v. (9th Cir.1988).

F.2d 1011 The circuit court proceeded attempt

then to hold that this 1032;

unsuccessful. Id. at but see Walton v.

Arizona, supra (effectively abrogating

Adamson). four-judge minority in Lew- Jeffers, supra, way.

is v. felt the same

issue, therefore, hardly one about which

Case Details

Case Name: State v. Mata

Court Name: Arizona Supreme Court

Date Published: May 9, 1996

Citation: 916 P.2d 1035

Docket Number: CR-77-4104-AP/PC [4101]

Court Abbreviation: Ariz.