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Gulbrandson v. Ryan

United States District Court, D. Arizona

April 13, 2018

David Gulbrandson, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Douglas L. Rayes United States District Judge.

         Petitioner 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.)

         Gulbrandson 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.

         BACKGROUND

         Gulbrandson 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.[1] Id.

         The 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).

         After 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.)

         On 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).

         The 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.

         Gulbrandson 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. ...


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