United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
David Gulbrandson, an Arizona death row inmate, filed a
petition for writ of habeas corpus on June 16, 2017. (Doc.
1.) The Court ordered Respondents to file a brief addressing
Gulbrandson's argument that the petition, while
second-in-time, is not a “second or successive”
petition requiring authorization from the Ninth Circuit under
28 U.S.C. § 2244(b). Respondents filed their brief and
Gulbrandson filed a reply. (Docs. 6, 9.)
raises one claim in the petition: that his Eighth Amendment
rights were denied when the state court misapplied the
Arizona Supreme Court's narrowing construction of the
term “gratuitous violence, ” a component of the
“heinous, cruel, or depraved” aggravating factor.
(Doc. 1 at 13.) According to Gulbrandson, the Arizona Supreme
Court provided new guidance on the application of the
aggravating factor in State v. Bocharski, 218 Ariz.
476, 494, 189 P.3d 403, 421 (2008), decided after
Gulbrandson's sentence was final.
was convicted and sentenced to death for the 1991
first-degree murder of Irene Katuran, his former girlfriend
and business partner. The trial court found one aggravating
factor: that the murder was committed “in an especially
heinous, cruel or depraved manner” pursuant to A.R.S.
§ 13-751(F)(6). Specifically, the court found that Irene
was helpless, that Gulbrandson relished the murder, and that
he inflicted gratuitous violence. Id.
Arizona Supreme Court rejected the trial court's finding
that Gulbrandson relished the killing but affirmed the (F)(6)
aggravating factor based on gratuitous violence and
helplessness. State v. Gulbrandson, 184 Ariz. 46,
906 P.2d 579 (1995). In affirming the finding of gratuitous
violence, the court explained:
In the special verdict, the trial court characterized the
murder “as a brutally savage attack of shocking
proportions.” Defendant apparently used numerous
instruments to inflict injury to Irene: namely, several
knives, scissors, and a wooden salad fork. Irene suffered 34
stab wounds and slicing wounds, puncture wounds, and many
blunt force injuries. Her nose was broken, and there was
evidence that defendant had kicked or stomped on her. There
was compelling evidence that defendant had strangled Irene,
and the autopsy revealed that she died from asphyxiation and
multiple stab wounds. We conclude that these facts prove
beyond a reasonable doubt that defendant inflicted gratuitous
violence on the victim, and this shows an especially heinous
or depraved state of mind.
Id. at 68, 906 P.2d at 601 (citations omitted).
unsuccessfully pursuing state post-conviction relief (PCR),
Gulbrandson filed a petition for writ of habeas corpus in
this Court. (No. 98-cv-2024-PHX-SMM.) The court denied
relief. (Id., Docs. 87, 88.)
appeal in the Ninth Circuit, Gulbrandson sought authorization
to file a successive habeas petition, arguing that new
neuropsychological evidence showed that he could not have
known the point at which Irene was dead, as required for a
finding of gratuitous violence. The Ninth Circuit denied
Gulbrandson's request for leave to file a successive
habeas petition. Gulbrandson v. Ryan, 738 F.3d 976,
996-97 (9th Cir. 2013).
court concluded that:
A reasonable factfinder could determine that
[Gulbrandson's] use of “several knives, scissors,
and a wooden salad fork” on Irene and the
“particularly gruesome, brutal, and protracted”
fashion of the murder, Gulbrandson, 906 P.2d at 601,
604, were sufficient to show that Gulbrandson “should
have known he had inflicted a fatal wound but continued
nonetheless to inflict more violence, ”
Bocharski, 189 P.3d at 422.
Id. The court also affirmed the district court's
denial of habeas relief. Id.
then brought a successive PCR petition in state court,
claiming that under the “new” guidance of
Bocharski, there was insufficient evidence to
support the existence of the (F)(6) aggravating factor. (Doc.
1-1, App'x D.) The PCR court determined that
Gulbrandson's claim was not colorable, explaining that
Gulbrandson “knew or should have known that he had
inflicted violence in excess of that needed to kill, ”
and dismissed the petition. (Id., App'x A at 4.)
The Arizona Supreme Court denied review. (Doc. 6-1, Ex. ...