and Submitted, San Francisco, California December 8, 2015.
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.
Corpus / Death Penalty
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.
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.
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).
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
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
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).
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.
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
Richard A. Paez, Richard R. Clifton, and John B. Owens,
A. Paez, Circuit Judge:
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.
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
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
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
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.
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
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
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).
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). 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.
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). To establish the (E)(1) aggravator,
the prosecution introduced Smith's prior 1973 and 1976
convictions for raping Archibeque and Fortner.
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.
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."
mitigation evidence, Smith offered expert testimony
demonstrating mental impairment and psychological problems,
including signs of dissociative identity
disorder. 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.
juries returned a death verdict and the court entered a
sentence of death by lethal injection.
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.).
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. 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.
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.
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.
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.
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).
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)).
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
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.
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.
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. 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
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.
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
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
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,