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Smith v. Ryan

United States Court of Appeals, Ninth Circuit

May 26, 2016

JOE CLARENCE SMITH, Petitioner-Appellant,
CHARLES L. RYAN; RON CREDIO, Respondents-Appellees

         Argued and Submitted, San Francisco, California December 8, 2015.

          Appeal from the United States District Court for the District of Arizona. D.C. No. 2:12-cv-00318-PGR. Paul G. Rosenblatt, Senior District Judge, Presiding.


         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial of Arizona state prisoner Joseph Clarence Smith's 28 U.S.C. § 2254 habeas corpus petition challenging his death sentence, imposed at 2004 resentencing proceedings, for the murders of Sandy Spencer and Neva Lee.

         The panel held that Smith's contention that the trial court's admission of testimonial hearsay during the aggravation phase of resentencing proceedings violated his Sixth Amendment confrontation rights is foreclosed by Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), which held that the Confrontation Clause does not bar courts from considering unconfronted statements during sentencing proceedings.

         The panel held that in light of Smith's reliance on his sexual sadism diagnosis and the U.S. Supreme Court's pronouncement that the prosecution enjoys wide latitude in admitting rebuttal evidence, it was reasonable for the Arizona Supreme Court to conclude that the prosecution's introduction of substantial evidence of Smith's prior crimes during the penalty-phase hearings fell within the boundaries of due process. The panel held that introduction of this rebuttal evidence did not violate the Eighth Amendment. The panel held that any change between Arizona's 1970's and 2003 capital sentencing statutes was procedural rather than substantive, and that the state trial court's rejection of Smith's claim that admission of the rebuttal evidence during the 2004 penalty-phase hearings violated his rights under the Ex Post Facto Clause was therefore not contrary to nor an unreasonable application of Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).

         The panel held that any vagueness challenge to the application of the Arizona (E)(2) aggravator (for a previous conviction for a felony involving the use or threat of violence on another person) fails because both the trial court and the Arizona Supreme Court applied the narrowed definition of the aggravator. The panel held that application of the (E)(2) aggravator to the facts of Smith's case was not contrary to nor an unreasonable application of clearly established federal law.

         The panel held that the Arizona Supreme Court's rejection of Smith's argument that application of the Arizona (E)(6) aggravator (for offenses committed in an especially heinous, cruel, or depraved manner) violates the Eighth Amendment was not an unreasonable application of clearly established federal law.

         The panel held that because Smith cannot establish prejudice from counsel's failure to obtain brain scans, his claim of ineffective assistance at his 2004 resentencing proceedings is not substantial, and his procedural default on that claim cannot be excused under Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

         Michael L. Burke (argued) and Kelly L. Culshaw, Assistant Federal Public Defenders, Jon M. Sands, Federal Public Defender, Office of the Arizona Federal Public Defender, Phoenix, Arizona, for Petitioner-Appellant.

         Jon G. Anderson (argued), Assistant Attorney General, Thomas C. Home, Attorney General, and Jeffrey A. Zick, Chief Counsel, Office of the Arizona Attorney General, Phoenix, Arizona, for Respondent-Appellee.

         Before: Richard A. Paez, Richard R. Clifton, and John B. Owens, Circuit Judges.


         Richard A. Paez, Circuit Judge:

         In 1977, Joseph Clarence Smith, Jr. was convicted of two murders and sentenced to death. This is the second time we have reviewed Smith's habeas challenge to his death sentence. In Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999), we reversed in part and ordered that a writ of habeas corpus issue directing the State of Arizona to resentence Smith for the murders of Sandy Spencer and Neva Lee. Smith was resentenced to death in 2004 for each murder. After exhausting his remedies in state court, Smith filed a new petition in federal court. Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214, the district court again denied relief. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.



         In 1973, Smith was convicted of raping Alice Archibeque. While on probation for the Archibeque rape, Smith raped Dorothy Fortner and killed Sandy Spencer and Neva Lee. Smith was convicted of the Fortner rape and in subsequent proceedings he was convicted of murdering Spencer and Lee and sentenced to death.

         In our 1999 opinion, we summarized the facts of the underlying murders and trial court proceedings. For context, we repeat that summary here:

On January 1, 1976, officials of the Maricopa County Sheriff's Department found the nude body of Sandy Spencer in the desert outside Phoenix. One month later in a different desert location, police discovered the nude body of Neva Lee. Both teenage hitchhikers had been suffocated by having dirt forced into their mouths, which were taped shut. The assailant stabbed both women multiple times, punctured them with needles, and bound their wrists with rope.
Smith, who was on probation from a rape conviction, became the prime suspect. Police put him under surveillance. When that failed to produce probable cause for an arrest, police had a female officer pose as a hitchhiker to lure Smith into committing false imprisonment or battery. He eventually picked up the officer, took her to his father's machine shop, and grabbed her by both arms. After a prearranged signal, police entered and arrested him for false imprisonment.
During Smith's imprisonment, police questioned him about the Lee and Spencer murders. At first, he denied his involvement. But months later, at his own initiation, Smith gave investigators a bizarre account of the Lee slaying. He told police that he was present at the crime because a friend, John Jameson, forced him at gunpoint to drive the victim to the desert. Once there, Jameson ordered Lee to have sexual intercourse with Smith in order to frame Smith for her rape. Smith said Jameson then decided to kill Lee. His account conflicted with some physical evidence found at the scene. Smith later contended that he told police no such story.
Smith went on trial for the Lee murder first. Throughout the trial, he maintained his innocence, contending that other people committed the crime and that investigators conspired to frame him. Jameson testified at the trial. He denied being present at the murder, but said that a man known as " Squirrel" bragged about killing two women and showed Jameson pictures of the dead women. The jury returned a general verdict finding Smith guilty of murder.
Smith then went on trial for the Spencer slaying. The following day, he pleaded guilty to the crime shortly after Di Anne Jameson--Smith's girlfriend, John Jameson's ex-wife, and a key prosecution witness--told the court that she had been improperly contacted by a defense investigator and by Smith's mother. During the plea colloquy, the prosecutor expressed doubts about Smith's emotional stability to enter a voluntary plea. Nonetheless, the trial court accepted the plea. Three weeks later, Smith unsuccessfully sought to withdraw the plea, explaining that he had only pleaded guilty out of concern that his parents and Ms. Jameson would be arrested.

Smith, 189 F.3d at 1006-07. After the sentencing hearing for both convictions, the trial judge found three aggravating circumstances warranting the death penalty and no mitigating circumstances. Id. at 1007. The judge sentenced Smith to death for each of the murder convictions.

         On direct appeal in 1979, the Arizona Supreme Court affirmed Smith's convictions but remanded his case for resentencing because Arizona had revised its capital sentencing scheme to permit defendants to present additional mitigating evidence. Id. at 1007 & n.2; see also State v. Watson, 120 Ariz. 441, 586 P.2d 1253, 1257 (Ariz. 1978) (invalidating as unconstitutional the capital sentencing scheme's limit on defendants' right to present mitigation evidence). Notwithstanding the opportunity to present additional mitigating evidence at Smith's resentencing, Smith's counsel simply resubmitted the same evidence he had presented in the prior proceeding. Smith, 189 F.3d at 1007. The trial judge again found no mitigating circumstances and sentenced Smith to death for each of the murders of Lee and Spencer. Id. at 1008. On direct appeal for the second time, the Arizona Supreme Court affirmed Smith's death sentences. Id.

         After unsuccessfully seeking post-conviction relief in state court, Smith filed a federal habeas petition under 28 U.S.C. § 2254 challenging both his convictions and death sentences. Id. at 1008. In 1999, we concluded that Smith's counsel performed deficiently at the resentencing proceeding. Id. at 1014. We reversed in part and ordered the district court to issue the writ and direct that Smith be resentenced. Id.


          In 2002 the Arizona legislature responded to the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by shifting from judge to jury the role of finding facts necessary to impose the death penalty. See 2002 Ariz. Legis. Serv. 5th Sp. Sess. Ch. 1 § 3 (West); see also State v. Glassel, 211 Ariz. 33, 116 P.3d 1193, 1202 (Ariz. 2005). This change, coupled with the time necessary for counsel to gather evidence and prepare, delayed resentencing until 2004, when the Arizona Superior Court held separate proceedings to sentence Smith. State v. Smith, 215 Ariz. 221, 159 P.3d 531, 536 (Ariz. 2007).

         Like the current framework, Arizona's capital sentencing scheme in 2004 began with an " aggravation phase" in which the jury determined whether the prosecution had proved beyond a reasonable doubt any alleged statutory aggravating circumstances. Ariz. Rev. Stat. § 13-703.01(C), (E) (2003).[1] If the jury found at least one of the aggravating circumstances, the proceeding moved to a " penalty phase" in which the jury heard mitigating evidence and determined whether to impose death. See Ariz. Rev. Stat. § 13-703.01(D), (F)-(G) (2003); see also State v. McGill, 213 Ariz. 147, 140 P.3d 930, 946 n.9 (Ariz. 2006) (Hurwitz, J., concurring in part and dissenting in part) (describing Arizona's capital sentencing procedure). Although the Superior Court applied the then-current capital sentencing framework--including broad mitigation evidence and jury factfinding--the state sought to prove the statutory aggravators codified in the 1977 scheme. Smith, 159 P.3d at 536. In two separate proceedings, first for Spencer and second for Lee, the juries unanimously found three aggravating factors.

         First, the juries found that Smith had been convicted of another offense exposing him to a life sentence or the death penalty, Arizona Revised Statutes section 13-454(E)(1) (1977).[2] To establish the (E)(1) aggravator, the prosecution introduced Smith's prior 1973 and 1976 convictions for raping Archibeque and Fortner.

         Second, both juries found that Smith had been previously convicted of a felony involving " the use or threat of violence," Ariz. Rev. Stat. § 13-454(E)(2) (1977). To establish the (E)(2) aggravator, the prosecution first offered the Lee murder at the Spencer sentencing and then offered the Spencer murder at the Lee sentencing.

         Third, the juries found that the Spencer and Lee murders were especially cruel, heinous, or depraved within the meaning of Arizona Revised Statutes section 13-454(E)(6) (1977). To establish the (E)(6) aggravator, the prosecution elicited testimony regarding the women's injuries and the cause of death for each. The prosecution offered evidence that both women had been asphyxiated by dirt forced into their airways, that before death both had been bound at the wrists and ankles with ligatures, and that each suffered puncture and stab wounds. As the Arizona Supreme Court recounted, Spencer " suffered nineteen stab wounds to the pubic region and a vaginal tear that was caused by penetration. She also had three stab wounds to her breasts and a sewing needle was found embedded in her left breast." Lee " also had puncture and stab wounds to her chest, abdomen, and breasts and damage to her vulva."

         As mitigation evidence, Smith offered expert testimony demonstrating mental impairment and psychological problems, including signs of dissociative identity disorder.[3] Smith's expert also concurred with the prosecution expert's diagnosis that Smith suffered from sexual sadism. Smith's mother and sister testified to Smith's personal history and several prison employees and a prison expert testified to his good behavior in prison.

         Both juries returned a death verdict and the court entered a sentence of death by lethal injection.

         On his third direct appeal, Smith raised six primary arguments. Among those arguments, and relevant to this federal habeas proceeding, Smith challenged the sufficiency of the evidence supporting the (E)(2) aggravator, the prosecution's use of autopsy-related hearsay evidence at the Lee sentencing in violation of the Confrontation Clause, U.S. Const., amend. VI, § 2, and the prosecution's use of prejudicial rebuttal evidence. Smith also asserted twelve one-paragraph claims which he conceded were foreclosed by state law. Among those truncated claims, Smith asserted that Arizona's capital sentence scheme provides no objective standards to guide the jury in the penalty phase and thus violates the Eighth and Fourteenth Amendments. The Arizona Supreme Court rejected each of Smith's challenges and affirmed both death sentences. Smith, 215 Ariz. 221, 159 P.3d 531. The U.S. Supreme Court denied Smith's petition for certiorari. Smith v. Arizona, 552 U.S. 985, 128 S.Ct. 466, 169 L.Ed.2d 326 (2007); 552 U.S. 986, 128 S.Ct. 2997, 169 L.Ed.2d 327 (mem.).

         Two years later, in November 2009, the Arizona Supreme Court appointed counsel for Smith's post-conviction proceedings. In mid-2011, Smith filed his post-conviction relief petition in state superior court, referred to in Arizona as a Rule 32 petition. See Ariz. R. Crim. P. 32.1.[4] The post-conviction court rejected each of Smith's arguments and dismissed his Rule 32 petition. In February 2012, the Arizona Supreme Court denied review without comment.


         In December 2012, Smith timely filed a new § 2254 habeas petition in federal court, in which he raised thirty-nine claims challenging his death sentences and requested an evidentiary hearing. Among those claims, Smith raised the following seven arguments which he has pressed on appeal:

Claim 13--The admission of autopsy-related hearsay evidence violated his Sixth Amendment right of confrontation;

Claim 15--The use of Smith's conviction for murdering Spencer to satisfy the (E)(2) aggravator in the Lee sentencing, and vice versa, violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights;

Claims 18, 19, and 20--The sentencing judge denied Smith his Sixth and Fourteenth Amendment rights to representation and due process when he responded to a jury question in the Spencer case in the absence of Smith's counsel, and counsel's failure to be available during jury deliberations and to raise that failure on appeal constituted ineffective assistance of counsel;

Claim 23--The prosecution presented irrelevant and unfairly prejudicial rebuttal evidence in violation of Smith's Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment and to due process;

Claim 29--Executing Smith after thirty-five years on death row would be cruel and unusual punishment in violation of the Eighth Amendment;

Claim 30--Arizona's (E)(6) aggravator for especially heinous, cruel, or depraved murders fails to narrow the class of death-eligible offenders as required by the Eighth and Fourteenth Amendments; and

Claim 39--Smith's counsel at sentencing rendered ineffective assistance in derogation of the Sixth Amendment by failing to develop and present mitigating evidence.

         The district court denied the petition and request for an evidentiary hearing and it subsequently denied Smith's motion to alter or amend the judgment. The district court concluded that Smith's claims alleging Sixth Amendment confrontation and Fourteenth Amendment due process violations arising from admission of autopsy-related hearsay evidence and prejudicial rebuttal evidence--Claims 13 and 23--were " adequate to deserve encouragement to proceed further" or " debatable by reasonable jurists," and issued a certificate of appealability (" COA" ). See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The district court declined to extend the COA to any of Smith's other claims.

         Smith timely appealed. In his opening brief, Smith addressed the two certified claims and the seven other uncertified claims described above. We ordered the Attorney General to respond to Smith's uncertified claims, and we deferred ruling on whether to grant a COA on those issues. See 9th Cir. Rule 22-1(e). We construe Smith's opening brief as a motion to expand the COA pursuant to Circuit Rule 22-1(e), and we grant a COA on three of his uncertified claims--his challenges to Arizona's (E)(2) and (E)(6) aggravators, Claims 15 and 30, and his claim of ineffective assistance of counsel, Claim 39.[5]


          We review de novo the district court's denial of Smith's petition for a writ of habeas corpus and review its factual findings for clear error. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Because Smith filed his federal habeas petition after 1996, AEDPA governs. Id. We may not grant relief " with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state court decision " was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or " was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). Only Supreme Court holdings clearly establish federal law for the purposes of § 2254(d)(1), but circuit precedent is persuasive authority in assessing what law is " clearly established" and whether the state court applied the law reasonably. Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).

          A state court unreasonably applies federal law when it " correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014). " It is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous." Andrade, 538 U.S. at 75 (internal quotation marks omitted). Rather, the state court's application of Supreme Court holdings " must be 'objectively unreasonable,' not merely wrong; even 'clear error' will not suffice." Woodall, __ U.S. __, 134 S.Ct. at 1702 (quoting Andrade, 538 U.S. at 75-76). " A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).



         Smith contends in Claim 13 that the state trial court's admission of testimonial hearsay during the aggravation phase of the resentencing proceeding in the Lee case violated his Sixth Amendment right to confront witnesses. Smith argues that the sentencing court impermissibly admitted the out-of-court statements of the medical examiner who conducted Lee's autopsy through the testimony of the then-current chief medical examiner and a detective who was present at the autopsy. Smith asserts that the Arizona Supreme Court's ruling that this testimony did not violate the Confrontation Clause unreasonably applied clearly established federal law and unreasonably determined the facts in light of the record, and that the district court erred in concluding to the contrary.

          The U.S. Supreme Court has never established a right to confront witnesses at sentencing. To the contrary, Smith's argument is foreclosed by Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), " which held that the Confrontation Clause does not bar courts from considering unconfronted statements during sentencing proceedings." Sivak v. Hardison, 658 F.3d 898, 927 (9th Cir. 2011) (rejecting a Confrontation Clause challenge to the use of hearsay in a capital sentencing proceeding under pre-AEDPA standards); see also United States v. Littlesun, 444 F.3d 1196, 1197 (9th Cir. 2006); United States v. Petty, 982 F.2d 1365 (9th Cir.), amended by 992 F.2d 1015 (9th Cir. 1993). We therefore conclude that the Arizona Supreme Court did not act unreasonably in rejecting Smith's Sixth Amendment confrontation claim.[6]


         In Claim 23, Smith argues that the district court erred in finding that Smith suffered no constitutional violation when the prosecution introduced substantial evidence of Smith's prior crimes during both the Lee and Spencer penalty-phase hearings. Smith contends that the admission of that evidence was unconstitutional under the Due Process Clause of the Fourteenth Amendment, the Eighth Amendment, and the Ex Post Facto Clause, U.S. Const., art. 1, § 9, cl. 3.


         During both penalty phases of the Spencer and Lee resentencing proceedings, Smith offered mitigation evidence related to his mental health, his family background and relationships, and his good behavior in prison. Particularly relevant to this habeas claim, Smith's mental health expert, Dr. Parrish, agreed with the prosecution's mental health expert, Dr. Moran, that Smith suffered from " sexual sadism." During the Lee proceeding, Dr. Parrish explained the meaning of sexual sadism to the jury.[7] When questioned by defense counsel, Dr. Parrish identified Smith as a sexual sadist and agreed that sexual sadism could have caused Smith to lose control during the commission of his crimes. Dr. Parrish's testimony at the Spencer proceedings was very similar. Smith's counsel previewed the sexual sadism diagnosis in his opening statement during the Spencer penalty phase, although the focus was on Smith's asthma and anxiety diagnoses.

         During rebuttal at both the Lee and Spencer proceedings, the prosecution called a number of witnesses to testify about the facts of Smith's two prior convictions and the facts of the Lee and Spencer murders. The quantity and intensity of evidence was extensive and powerful.

         During the Spencer penalty phase, the prosecution questioned at length five witnesses about the details of Smith's crimes. Dr. Moran described how the escalation of violence in Smith's crimes--from the Archibeque rape to the two murders--was typical for individuals with sexual sadism diagnoses. Dr. Moran related how, while raping Archibeque, Smith " us[ed] handcuffs," " state[d] it would be necessary to kill the victim," " related numerous things to the victim about bodies being found in the desert," and more. Dr. Moran opined that Smith's acts became more " degrading" during the later Fortner rape, when Smith " obtained a Pepsi bottle from somewhere within the car, placed it in her vagina, forced her to commit an act of fellatio, [and] also committed sodomy upon her." Finally, Dr. Moran explained that the " amount of violence was increasing" during the Lee and Spencer murders, as evidenced by " sewing needles that were embedded in [Spencer's] breast," the " cutting of [Lee's] vagina," and the murder victims' death by strangulation--" by forcing dirt down their throat [and] covering their mouth with duct tape." Dr. Moran then repeated the facts of the four crimes a second time in response to further questioning by the prosecution.

         The prosecution also called two law enforcement officers. First, the prosecution called Detective Charles Adams, who had investigated the Archibeque case. At the prosecution's prompting, Adams " basically summarize[d his] report" for the jury. Adams explained how Smith offered Archibeque a ride, took her to his home, and raped her in the presence of his wife using handcuffs. Smith then drove both women to the desert, saying it " would be necessary to kill [Archibeque]," raped her again outside the car while his wife waited, and ultimately released Archibeque on the promise that she would bring him $200 the next day. The prosecution then called Detective Dominguez, who described the elaborate story Smith told to police to explain his involvement in the Lee and Spencer murders. Dominguez also described arriving at the scene where Lee's body was found. Lee was " completely nude" with " visible trauma on the body," including " ligature markings around the ankles and wrists" and " trauma into the chest area." Dominguez also testified about attending Lee's autopsy. He recounted the medical examiner pointing out " stab wounds to the vaginal area," a " puncture wound of the right breast by the nipple area," " five stab wounds to the chest area," and that her " deep throat area, was full of dirt."

         The prosecution also elicited the facts of Smith's prior crimes during its cross examination of James Aiken, a corrections expert. Aiken had testified on direct examination that a " toothbrush with [a] razor blade attached" found in Smith's prison locker was likely a " defensive weapon." Smith had called Aiken to testify generally about Smith's good conduct in prison. Ignoring the scope of Aiken's direct examination testimony, the prosecution related, one by one, the facts of the Archibeque, Fortner, ...

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