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William Lyle WORATZECK

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Arson
Number of victims: 1
Date of murder: March 6, 1980
Date of birth: September 11, 1945
Victim profile: Linda Louise Leslie (female, 36)
Method of murder: Strangulation
Location: Pinal County, Arizona, USA
Status: Executed by lethal injection in Arizona on June 25, 1997
 
 
 
 
 
 

Linda Louise Leslie was a 36-year-old woman who, because of Huntington's chorea, had the mental capacity of a 15-year-old. She lived in a small sleeping room she rented from Woratzeck in Pinal County.

On March 6, 1980, about 2:30 a.m., Woratzeck broke into this room, beat her with a hammer, stabbed her three times with a steak knife and finally strangled her so violently he broke bones in her neck. He then robbed her of approximately $107 and set the shed on fire, burning Leslie's body.

When he was strapped to the lethal injection table, he said, "I want the state of Arizona to know they are executing an innocent man. Tell my wife I love her and tell the rest of my family I love them."

The condemned man's attorneys and family protested to the end that only circumstantial evidence convicted him. The main evidence against Woratzeck was found on the clothing he wore the night of the killing. Police detected bodily fluids that could have been Leslie's as well as fibers from the carpet at the death scene.

Woratzeck says he did not kill Leslie, isn't sure who did, but thinks some facts unexamined at the trial need to be aired.

Woratzeck said in a death row telephone interview that though he was married at the time, he had a relationship with Leslie and even introduced men to her so they, too, could have sex with her.

He says among those men was a Casa Grande police officer.

While his attorneys doubted the conspiracy theory, they did claim that police gave up the investigation too early without pursuing the possibility of other suspects.

Woratzeck spent 17 years appealing his case.

PROCEEDINGS

Presiding Judge: Robert R. Bean
Prosecutor:  W. Allen Stooks
Start of Trial:  September 10, 1980
Verdict: September 15, 1980
Sentencing: November 10, 1980

Aggravating Circumstances
    Pecuniary gain
    Especially heinous/cruel/depraved (cruel struck on appeal)

Mitigating Circumstances
    None

PUBLISHED OPINIONS

State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982).
Woratzeck v. Ricketts, 799 F.2d 1365 (9th Cir. 1986).
Woratzeck v. Ricketts, 808 F.2d 1322 (9th Cir. 1986).
Woratzeck v. Ricketts, 820 F.2d 1450 (9th Cir. 1987).
Woratzeck v. Ricketts, 859 F.2d 1559 (9th Cir. 1988).

Sources

Arizona Department of Corrections "Death Row" Web site
"Profiles of Arizona Death Row Inmates," Arizona Attorney General's Office
The Arizona Republic archives

 
 

Last meal

16-ounce top sirloin steak (medium rare), French fries, onion rings, 12 deep-fried butterfly shrimp, one whole cherry cheesecake, one case Pepsi Cola, one pot of Coffee.

 
 

808 F.2d 1322

William Lyle WORATZECK, Petitioner-Appellant,
v.
James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.

United States Court of Appeals
For the Ninth Circuit

September 16, 1986

Appeal from the United States District Court for the District of Arizona.

Before WALLACE, FARRIS and BOOCHEVER, Circuit Judges.

WALLACE, Circuit Judge:

Woratzeck appeals from the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He contends that he was denied his sixth amendment right to effective assistance of counsel and his fourteenth amendment right to due process. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

I

* Leslie was a 36-year old woman who suffered from Huntington's disease, had the mental capacity of a 15-year-old, and was physically disabled. She received general assistance from her aunt, Medina, and day-to-day assistance from other friends.

Leslie lived in a trailer located in a trailer park that Woratzeck was purchasing from Medina and Medina's brother. Medina made the monthly rental payments to Woratzeck for Leslie's trailer. In February 1980, Woratzeck was over $2,000 behind in his payments to the Medinas for the trailer park property. Medina therefore did not pay the February rent for Leslie's trailer.

On March 6, 1980, Leslie was killed inside her trailer, and an undetermined amount of money was taken from her. The medical examiner testified that the assailant stabbed Leslie three times, strangled her, and delivered two blows to her head. Leslie's trailer was then lit on fire.

Woratzeck was indicted by a grand jury of Pinal County, Arizona, for first-degree felony-murder, Ariz.Rev.Stat.Ann. Sec. 13-1105.A.2, arson of an occupied structure, id. Sec. 13-1704, second-degree burglary, id. Sec. 13-1507, and armed robbery, id. Sec. 13-1904. A jury convicted him of first-degree felony-murder, second-degree burglary, and armed robbery, and acquitted him on the arson count.

A sentencing hearing was held pursuant to Ariz.Rev.Stat.Ann. Sec. 13-703, and Woratzeck was sentenced to death on the first-degree felony-murder count and consecutive prison terms of 11.25 years and 15.75 years on the burglary and robbery counts. On appeal, the Arizona Supreme Court affirmed the convictions and sentences. See State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982) (Woratzeck ).

The trial court denied Woratzeck's motion for post-conviction relief under Ariz.R.Crim.P. 32, and the Arizona Supreme Court denied review. Woratzeck's petition for a writ of habeas corpus in federal district court was then denied, and he brought this appeal.

II

Woratzeck contends that he was denied his sixth amendment right to effective assistance of counsel because his attorney's performance during the trial and the sentencing proceeding was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (Strickland ).

To obtain relief for a claim of ineffective assistance of counsel on a habeas corpus review, the petitioner must demonstrate that his attorney "made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and petitioner must also demonstrate prejudice." Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir.1985) (Butcher ) (citing Strickland ); see Miller v. Stagner, 757 F.2d 988, 996 (9th Cir.), amended in other respects, 768 F.2d 1090 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1269, 89 L.Ed.2d 577 (1986). Our review of counsel's performance is highly deferential: we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Darden v. Wainwright, --- U.S. ----, ----, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986) (Darden ); United States v. Hamilton, 792 F.2d 837, 839 (9th Cir.1986).

To demonstrate prejudice, Woratzeck must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The state court's findings of fact are entitled to deference pursuant to 28 U.S.C. Sec. 2254(d), and the district court's findings of fact are reviewed for clear error. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Nevertheless, whether the facts demonstrate unreasonable performance and prejudice are mixed questions of law and fact, id., that we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); Butcher, 758 F.2d at 376.

A.

Woratzeck first argues that his counsel's failure to request a jury instruction concerning a claim of right defense to robbery or theft constituted ineffective assistance of counsel. The claim of right defense provides that property taken by force under claim of right of ownership does not constitute robbery. State v. Hardin, 99 Ariz. 56, 59, 406 P.2d 406, 408 (1965); State v. Flores, 140 Ariz. 469, 473, 682 P.2d 1136, 1140 (Ct.App.1984). Woratzeck contends that his claim of right to rent due from Leslie negated the felonious intent required for a conviction of robbery or burglary.

The state contends that it is questionable whether the claim of right defense still applies in Arizona, see Ariz.Rev.Stat.Ann. Secs. 13-1802.A.1, 13-1902.A, 13-1801.A.12; cf. State v. Lewis, 121 Ariz. 155, 157-58, 589 P.2d 29, 31-32 (Ct.App.1978) (criticizing claim of right defense to charge of robbery); that Woratzeck never presented any evidence that he took the money under a claim of right; and that the claim of right defense would not have applied to this case because Woratzeck took more money than was owed, because the amount due was unliquidated, see State v. Bonser, 128 Ariz. 95, 96, 623 P.2d 1251, 1252 (Ct.App.1981), and because Woratzeck had a claim of right to rent only from Medina.

We need not decide whether the claim of right defense presently exists under Arizona law or whether it would apply to these facts. Throughout the trial, Woratzeck maintained that he did not take money from Leslie and that he never entered her trailer on the day she was killed. He informed his attorney that it would have been impossible for him to have robbed and killed Leslie because at the very time she was robbed and killed he was burglarizing the Three G's Nursery.

He never gave his attorney any reason to think that he desired to rely on any defense other than his alibi defense. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. It is apparent that a claim of right instruction would have been inconsistent with Woratzeck's alibi defense. Woratzeck's counsel was not required to request a jury instruction that was inconsistent with his trial theory. See Butcher, 758 F.2d at 377.

Woratzeck contends, however, that his counsel did not make a tactical decision not to ask for the jury instruction, see Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (there is a "wide latitude counsel must have in making tactical decisions"), but rather was unaware of the claim of right defense. It is not clear to us from the record whether Woratzeck's attorney was unaware of the defense.

His attorney specifically stated that too much time had gone by to remember "why decisions were made" not to request specific jury instructions. Under these circumstances, we believe the Supreme Court has outlined the proper context within which we review this issue:

As we recognized in Strickland, "[j]udicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's perspective at the time." 466 U.S., at 689, 104 S.Ct., at 2065.

In particular, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Ibid., quoting Michel v. Louisiana, 350 U.S. 91, 100-101, 76 S.Ct. 158, 163-164, 100 L.Ed. 83 (1955).

Darden, --- U.S. at ----, 106 S.Ct. at 2474. Reasonably competent counsel could have elected to rely exclusively on an alibi defense. In any event, defense counsel need not be infallible or recognize and raise every possible basis for defense. See Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982); United States v. McAdams, 759 F.2d 1407, 1409 (9th Cir.1985).

We conclude that the failure of Woratzeck's counsel to request a claim of right jury instruction in response to the government's theory of the case did not fall outside the wide range of responsible professional assistance nor call into question the fundamental fairness of the state court proceeding. See Strickland, 466 U.S. at 689-90, 696, 104 S.Ct. at 2065-66, 2069.

B.

Woratzeck next contends that he was denied effective assistance of counsel because his attorney failed to request that the jury be instructed that the crime of theft is a lesser included offense of armed robbery. See State v. Celaya, 135 Ariz. 248, 251-52, 660 P.2d 849, 852-53 (1983) (Celaya ).

A defendant is entitled to a lesser included offense instruction under Arizona law if the evidence suggests that the element which distinguishes the greater offense from the lesser offense is in dispute. See State v. Malloy, 131 Ariz. 125, 129-30, 639 P.2d 315, 319-20 (1981); State v. Dugan, 125 Ariz. 194, 195-96, 608 P.2d 771, 772-73 (1980); see also United States v. Johnson, 637 F.2d 1224, 1233 (9th Cir.1980) (instruction is proper if greater offense requires jury to find disputed factual element not required for lesser included offense).

An element of armed robbery that distinguishes it from theft is the requirement that force be threatened or used to obtain the property or to prevent resistance. Compare Ariz.Rev.Stat.Ann. Sec. 13-1802.A.1 with id. Sec. 13-1902.A & Sec. 13-1904.

Woratzeck contends that there was no direct and conclusive evidence that the force used to kill Leslie was inflicted in the course of the taking of the money, and that he was therefore entitled to a lesser included offense instruction of theft. As the district court held, Arizona law requires giving a lesser included offense instruction only when supported by the evidence. See Celaya, 135 Ariz. at 253, 660 P.2d at 852; State v. Govorko, 23 Ariz.App. 380, 384, 533 P.2d 688, 692 (1975).

Here, Woratzeck concedes that evidence supported the inference that he used force in taking the money, but asserts, without any elaboration, that the contrary inference could also have been drawn. We are unpersuaded that a reasonable jury could have inferred from the evidence that Woratzeck committed theft but not robbery. In any event, Woratzeck elected to rely on his alibi defense. His counsel testified that as a tactical matter, arguing a lesser included offense concerning theft might have diluted the alibi defense and resulted in a loss of credibility.

The district court properly accepted the Arizona court's finding that not requesting the instruction was trial strategy. The decision not to request a lesser included offense instruction falls within the wide range of reasonable professional representation. Consequently, we conclude that this argument does not support Woratzeck's claim that he was denied effective assistance of counsel.

C.

Woratzeck also contends that his counsel committed a number of errors during the sentencing proceeding that amounted to ineffective assistance of counsel. Under Arizona law, the trial court "shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated ... and that there are no mitigating circumstances sufficiently substantial to call for leniency." Ariz.Rev.Stat.Ann. Sec. 13-703.E.

The trial judge found two aggravating circumstances: commission of the offense for pecuniary gain and commission of the offense in an especially heinous, cruel, or depraved manner. See id. Sec. 13-703.F.4, .6. The trial judge found no mitigating circumstances that weighed against the aggravating factors.

Woratzeck argues that even if his counsel's failure to request a claim of right instruction during the trial did not amount to ineffective assistance of counsel, the failure to raise the claim of right theory at the sentencing proceeding to show that the murder was not for pecuniary gain did fall outside "the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Woratzeck also contends that his counsel's failure to argue at the sentencing proceeding that the murder of Leslie was not heinous, cruel, or depraved constituted ineffective assistance of counsel.

In order to establish a claim of ineffective assistance of counsel, a defendant must show not only that counsel's performance was deficient, but also that the deficient performance was prejudicial to the defense. See id. at 687, 104 S.Ct. at 2064. It is not necessary to determine "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697, 104 S.Ct. at 2069.

We first consider whether the failure of Woratzeck's counsel to raise the claim of right theory at the sentencing proceeding resulted in prejudice. Section 13-703.E states that a sentence of death shall be imposed if one or more of the enumerated aggravating circumstances is present. Contrary to Woratzeck's argument in his brief, his counsel did argue at the sentencing proceeding that Leslie was not murdered in a heinous, cruel, or depraved manner.

The question is, therefore, if one of two aggravating circumstances is sustained and the other, arguendo, is not, and there are no mitigating circumstances, is resentencing required? Under Arizona law, it is not. The Arizona Supreme Court has held that its "elimination of some aggravating factors in the absence of mitigating circumstances does not mandate a remand to the trial court for resentencing." State v. Smith, 146 Ariz. 491, 504, 707 P.2d 289, 302 (1985); State v. McCall, 139 Ariz. 147, 161 n. 4, 677 P.2d 920, 934 n. 4 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984); cf. Barclay v. Florida, 463 U.S. 939, 967-68, 103 S.Ct. 3418, 3433-34, 77 L.Ed.2d 1134 (1983) (Stevens, J., concurring in the judgment) ("Under Florida law, if there are no statutory mitigating circumstances, one valid statutory aggravating circumstance will generally suffice to uphold a death sentence on appeal even if other aggravating circumstances are not valid. The Federal Constitution requires no more, at least as long as none of the invalid aggravating circumstances is supported by erroneous or misleading information.") (footnotes omitted).

Because the trial judge found no mitigating factors, the finding that Woratzeck murdered Leslie in a heinous, cruel, or depraved manner was sufficient to impose the death penalty. Therefore, there was no showing of prejudice, even if counsel's performance were considered deficient in failing to argue the claim of right theory.

Woratzeck next contends that his counsel's failure to introduce the testimony of family and friends as a mitigating factor at the sentencing hearing constituted ineffective assistance of counsel. Woratzeck's counsel testified that Woratzeck gave him a list of individuals who could have testified at the sentencing proceeding, and that he contacted all but one of the individuals. Although he could not remember the responses of everyone that he contacted, he did recall that two of the individuals stated that they would have had to commit perjury in order to say anything good about Woratzeck.

We conclude that Woratzeck's counsel conducted a sufficient inquiry into the mitigating value of the potential witnesses' testimony and that his decision not to call the witnesses at the sentencing proceeding is entitled to deference as a strategic choice. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. Based on the record before us, we do not find this decision unreasonable.

Woratzeck further contends that his counsel's failure at the sentencing hearing to introduce a doctor's report concerning the degree of his intoxication on the night Leslie was murdered, to contend that Woratzeck cooperated with the police, and to argue that a doubt remained concerning his guilt constituted ineffective assistance of counsel.

Although the doctor's report concerning Woratzeck's level of intoxication was not presented as mitigating evidence during the sentencing proceeding, the trial judge had earlier read the report. Furthermore, the report itself contained evidence that contradicted Woratzeck's position. Woratzeck told the doctor he remembered everything he did on the night of the murder. The doctor did not believe there was a serious interference with his thought process due to intake of alcohol.

We are not convinced that there is a reasonable probability that the outcome would have been different but for counsel's failure to introduce the doctor's report during the sentencing proceeding. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Similarly, we do not conclude that counsel's failure to argue that Woratzeck cooperated with the police resulted in prejudice.

Woratzeck's argument that his counsel should have argued doubt about guilt as a mitigating circumstance is contrary to Arizona law. Once an individual has been found guilty beyond a reasonable doubt, doubt about guilt is no longer relevant and therefore is not a mitigating circumstance. See State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985); State v. Schad, 129 Ariz. 557, 573, 633 P.2d 366, 382-83 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982).

III

Woratzeck contends that the trial judge's failure to instruct the jury sua sponte on a claim of right defense and on the lesser included defenses of theft and second-degree murder resulted in a denial of due process.

A.

The trial judge's failure to instruct the jury on a claim of right defense is not a basis for habeas corpus relief "unless the error rendered the trial so fundamentally unfair as to deny due process." Shepherd v. Nelson, 432 F.2d 1045, 1046 (9th Cir.1970) (per curiam). It is not enough that the contested instructions were "undesirable, erroneous, or even 'universally condemned.' " Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.) (Bashor ), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984).

Woratzeck never requested that a claim of right instruction be given, nor gave the trial judge any reason to believe that he intended to rely on any defense other than his alibi defense. A sua sponte instruction by the trial judge on a claim of right defense would have been inconsistent with Woratzeck's defense theory. Consequently, the trial judge's failure to give a claim of right instruction sua sponte did not amount to a due process violation. See Butcher, 758 F.2d at 377; Bashor, 730 F.2d at 1240.

B.

Woratzeck's argument that the trial judge's failure to instruct the jury on the lesser included offenses of second-degree murder and theft violated due process is equally unpersuasive. In a noncapital case, we have stated that the "[f]ailure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." James v. Reese, 546 F.2d 325, 327 (9th Cir.1976) (per curiam).

Due process, however, requires that a lesser included offense instruction to a capital offense be given when the evidence warrants such an instruction. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980) (Beck ).

Woratzeck first contends that he was entitled to a lesser included offense jury instruction on second-degree murder. Under Arizona law, however, second-degree murder is not a lesser included offense of felony-murder. See State v. Arias, 131 Ariz. 441, 443-44, 641 P.2d 1285, 1287-88 (1982).

The constitutional protection prohibits the state "from withdrawing [the lesser included offense] option from the jury in a capital case." Beck, 447 U.S. at 638, 100 S.Ct. at 2390. As there was no option to withdraw, Woratzeck was not denied due process by the trial judge's failure to instruct the jury sua sponte concerning second-degree murder.

Woratzeck's argument that the trial judge erred in failing to instruct the jury concerning theft--which is a lesser included offense of robbery--when robbery served as one of the underlying felonies for the felony-murder conviction, is more persuasive. Cf. United States v. Stearns, 707 F.2d 391, 393 (9th Cir.1983) (permitting felony-murder prosecution where defendant had earlier been tried and convicted for lesser included offense related to same transaction, but observing that defendant could not be punished again for the underlying theft if convicted of felony-murder), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984). We need not decide this issue, however, because even if the theft instruction should have been given, the trial judge's failure to do so would not have changed the outcome.

The trial judge instructed the jury that to convict Woratzeck of felony-murder, it had to find that he committed or attempted to commit burglary or robbery and that he killed Leslie in the course of and in the furtherance of the crime or immediate flight from the crime.

The jury specifically convicted Woratzeck of second-degree burglary and armed robbery, both of which provided the underlying felony for the felony-murder conviction. See Ariz.Rev.Stat.Ann. Sec. 13-1105.A.2. Assuming, arguendo, that the failure to give the theft instruction taints the armed robbery conviction, we address whether the felony-murder conviction could stand based upon the burglary felony alone.

In Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the Supreme Court concluded that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds for the verdict, one of the grounds is found to be insufficient, and it is impossible to determine from the record whether the verdict may have been based solely on the insufficient ground. Id. at 368, 51 S.Ct. at 535; see also Zant v. Stephens, 462 U.S. 862, 881-82, 103 S.Ct. 2733, 2744-45, 77 L.Ed.2d 235 (1983); Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356 (1957); United States v. Lester, 749 F.2d 1288, 1291-92 n. 1 (9th Cir.1984). The Stromberg analysis, however, does not apply to this case. Here it is possible to tell that the felony-murder verdict was not predicated solely on the robbery.

The jury specifically found Woratzeck guilty of both burglary and robbery. Thus, we know that the jury found burglary to be a predicate felony. The only remaining question is whether the jury found that Leslie was murdered during the course of and in the furtherance of the burglary.

The jury found Woratzeck guilty of felony-murder, which required a finding that Leslie was murdered during the course of and in the furtherance of either the robbery or the burglary. Even if we assume that the jury found that the murder occurred during the course of and in the furtherance of the robbery to convict Woratzeck of felony-murder, it is clear that the course of the armed robbery is necessarily factually encompassed within the course of the burglary. A finding that Woratzeck killed Leslie in the course of and in the furtherance of the robbery necessarily includes a finding that he killed her during the course of and in the furtherance of the burglary.

Therefore, even if a lesser included offense instruction of theft should have been given, the felony-murder conviction would still be supported by Woratzeck's second-degree burglary conviction. Any constitutional error that might have resulted from the trial judge's failure to instruct the jury concerning theft was harmless beyond a reasonable doubt. See United States v. Hastings, 461 U.S. 499, 509-11, 103 S.Ct. 1974, 1980-81, 76 L.Ed.2d 96 (1983) (error is harmless if, absent the error, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty). Therefore, it is unnecessary for us to decide whether the theft instruction should have been given.

IV

As a final matter, Woratzeck contends that the trial court's and the Arizona Supreme Court's finding that he murdered Leslie in an especially heinous, cruel, or depraved manner violated due process and the eighth amendment's prohibition against cruel and unusual punishment. We presume that the state court's finding is correct unless it is not fairly supported by the record. See 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 549-50, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).

The Arizona Supreme Court has defined "cruel" as disposed to inflict pain in an especially wanton, insensate, sadistic, or vindictive manner; "heinous" as shockingly evil or grossly bad; and "depraved" as marked by corruption, perversion, or deterioration. See State v. Richmond, 136 Ariz. 312, 319, 666 P.2d 57, 64, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983).

The trial court found that Woratzeck murdered Leslie in a cruel, heinous, and depraved manner. The Arizona Supreme Court accepted the medical examiner's testimony that Leslie was stabbed three times, strangled, and hit on the head twice, that a blow to the head was probably the cause of death, and that Leslie was alive during the assault. See Woratzeck, 134 Ariz. at 457, 657 P.2d at 870. The court found that Woratzeck's violence against Leslie reflected a heinous and depraved attitude. See id. We conclude that the court's finding is fairly supported by the record and therefore reject Woratzeck's due process and eighth amendment arguments.

AFFIRMED.

BOOCHEVER, Circuit Judge, concurring.

I join the court's opinion because it is in accord with binding Supreme Court precedent. I recognize that I am bound by that precedent which upholds the constitutional validity of the death penalty. If I were free to decide the issue, I would agree with Justice Brennan's view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2971, 49 L.Ed.2d 859 (1976) (Brennan, J., dissenting), and at 231, 96 S.Ct. at 2973 (Marshall, J., dissenting).

 
 

97 F.3d 329

William Lyle WORATZECK, Petitioner-Appellant,
v.
Terry STEWART, Director, Department of Corrections,
Respondent-Appellee.

No. 94-99009.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted June 14, 1995.
Submission Deferred June 21, 1995
and Aug. 18, 1995.
Submitted Sept. 17, 1996.
Decided Sept. 24, 1996.

Appeal from the United States District Court for the District of Arizona, C.A. Muecke, District Judge, Presiding. D.C. No. CV-84-01783-CAM.

Before WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.

OPINION

WALLACE, Circuit Judge:

Woratzeck, an Arizona state prisoner sentenced to death, appeals from the district court's denial of his petition for writ of habeas corpus. The district court had jurisdiction pursuant to 28 U.S.C. 2254. We have jurisdiction under 28 U.S.C. 1291 and 2253, and we affirm.

I

* Linda Louise Leslie was a 36-year-old woman who was physically and mentally disabled due to Huntington's disease. She lived in Casa Grande, Arizona, in a trailer located in a small trailer park being purchased by Woratzeck from Leslie's aunt, Medina, and Medina's brother.

Although Leslie received day-to-day assistance from several friends, Medina made the monthly rental payments to Woratzeck for Leslie's trailer. In February 1980, Woratzeck fell over $2,000 behind in his payments to the Medinas for the trailer park property, and Medina therefore withheld payment of the February rent on Leslie's trailer.

On March 6, 1980, Leslie was killed inside her trailer and approximately $107 was taken from her. The medical examiner testified that the assailant stabbed Leslie three times in the chest and abdomen, strangled her, and delivered two devastating blows to her head. Her trailer was then lit on fire.

Woratzeck was indicted by the Pinal County Grand Jury for armed robbery, burglary, arson, and first-degree felony-murder. He was convicted by a jury of first-degree felony-murder, armed robbery, and burglary, but was acquitted on the arson count. The sentencing judge found two aggravating circumstances and no mitigating ones and sentenced Woratzeck to death. The Arizona Supreme Court affirmed the conviction and sentence of death. State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982) (Woratzeck I ). The Arizona trial court denied Woratzeck's motion for post-conviction relief, and the Arizona Supreme Court denied review.

Thereafter, Woratzeck's petition in federal district court for a writ of habeas corpus was denied, and we affirmed. Woratzeck v. Ricketts, 820 F.2d 1450 (9th Cir.1987) (Woratzeck II ). The United States Supreme Court granted certiorari, vacated our judgment, and remanded for further consideration in light of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Woratzeck v. Ricketts, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 916 (1988). We, in turn, vacated the district court's judgment and remanded the case to the district court with instructions to consider Maynard and Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). Woratzeck v. Ricketts, 859 F.2d 1559 (9th Cir.1988). The district court ordered additional briefing, including a discussion on the ramifications of two intervening Supreme Court decisions, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (Walton ), and Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (Jeffers ). Woratzeck v. Lewis, 863 F.Supp. 1079, 1083 (D.Ariz.1994) (Woratzeck III ). After considering this additional authority, the district court again denied Woratzeck relief on all of his pending habeas claims. Id. at 1098.

While Woratzeck's appeal from the district court's judgment was pending, the Arizona Supreme Court issued a stay of execution in State v. Mata, No. CR-77-4104-AP/PC (Ariz. July 6, 1995), to determine whether "defendants ... who were sentenced to death prior to" State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (Gretzler), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), "must or should be resentenced when the statutory aggravating circumstance of especially cruel, heinous, or depraved ... was used, in whole or part, to death-qualify the defendant."

Because Woratzeck and Mata were similarly situated, we deferred submission "[t]o ensure that Woratzeck receive[d] the same treatment as Mata." The Arizona Supreme Court recently lifted its temporary stay of execution, State v. Mata, 185 Ariz. 319, 916 P.2d 1035 (1996) (en banc) (Mata), and Mata was executed on August 22, 1996.

Also during the pendency of Woratzeck's appeal, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (Act), 142 Cong. Rec. H3305-01 (1996) (to be codified at 28 U.S.C. 2261). We do not decide whether the Act retroactively applies to Woratzeck's appeal. Even if it does, it would not enhance his ability to obtain federal habeas corpus relief. See Williams v. Calderon, 83 F.3d 281, 284 (9th Cir.1996).

The district court's issuance or denial of habeas corpus relief is reviewed de novo. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). State court findings of fact are entitled to deference, and the district court's findings of fact are reviewed for clear error. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (Strickland).

Woratzeck raises six principal issues on appeal: (1) whether the aggravating factor of "especially cruel, heinous, or depraved," which the Arizona courts relied on when sentencing him to death, was unconstitutionally vague at the time he was sentenced; (2) whether the sentencing court failed to consider mitigating evidence in the record; (3) whether a second aggravating factor found in his sentencing proceeding failed to channel the discretion of the sentencer when applied to felony-murder convictions such as Woratzeck's; (4) whether both aggravating factors found at sentencing were established beyond a reasonable doubt; (5) whether the district court should have granted him an evidentiary hearing on his ineffective assistance of counsel claim; and (6) whether his sentence of death violates the Eighth Amendment. We address each argument in turn.

II

Woratzeck was sentenced to death based on the finding of two aggravating factors: (1) that the crime he committed was "especially heinous, cruel or depraved," and (2) that the crime was committed "as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value." Ariz.Rev.Stat. 13-703(F)(5), (6) (1993). Woratzeck's first argument on appeal concerns aggravating factor (F)(6): that his crime was committed in an "especially heinous, cruel or depraved manner."

Woratzeck contends that at the time he was sentenced to death, aggravating factor (F)(6) was unconstitutionally vague. Because Arizona is a "weighing" state, "it is constitutional error for the sentencer to give weight to an unconstitutionally vague aggravating factor, even if other, valid aggravating factors obtain." Richmond v. Lewis, 506 U.S. 40, 46, 113 S.Ct. 528, 534, 121 L.Ed.2d 411 (1992) (Richmond).

However, the relevant time period at which to examine Arizona law is not, as Woratzeck asserts, the time he was sentenced in 1980, but rather at the time the Arizona Supreme Court affirmed his death sentence in Woratzeck I on December 17, 1982. That date is relevant because "even if a trial judge ... applies an improper construction [of an aggravating factor], the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather ... a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined." Walton, 497 U.S. at 653-54, 110 S.Ct. at 3057.

Although Maynard and Adamson cast doubt on the constitutional validity of Arizona's factor (F)(6), the United States Supreme Court more recently held in Walton and Jeffers that factor (F)(6), as construed by the Arizona Supreme Court in Gretzler, is not unconstitutionally vague. Walton, 497 U.S. at 652-55, 110 S.Ct. at 3056-58; Jeffers, 497 U.S. at 777-78, 110 S.Ct. at 3100-01.

Woratzeck recognizes that the Supreme Court has upheld factor (F)(6). Woratzeck argues, however, that factor (F)(6) was not adequately narrowed until the Arizona Supreme Court decided Gretzler. Gretzler, which contains an extensive analysis of factor (F)(6), was decided after Woratzeck I and before Walton and Jeffers. Gretzler analyzed past factor (F)(6) cases and explained that the term "cruelty" in factor (F)(6) emphasizes the "victim's suffering and feelings" whereas the concepts of "heinous" and "depraved" in factor (F)(6) "involve a killer's vile state of mind at the time of the murder." 659 P.2d at 10.

Gretzler then set forth five criteria to guide a sentencing court's determination of whether a killing was committed in a heinous or depraved manner: (1) the apparent relishing of the murder by the killer; (2) the infliction of gratuitous violence on the victim beyond the point necessary to complete the object of the crime or even to kill; (3) the needless mutilation of the victim; (4) the senselessness of the crime; and (5) the helplessness of the victim. Id. at 11.

Woratzeck insists that Gretzler did not merely summarize and clarify Arizona law, but was instead the watershed case that narrowed factor (F)(6) and allowed the Supreme Court to uphold it against vagueness challenges in Walton and Jeffers. The Arizona Supreme Court, however, has explained that "Gretzler did not present a new, narrower interpretation of the (F)(6) factor, but simply a digest of the previously legitimate applications of the factor." Mata, 916 P.2d at 1040.

The court explained that "Gretzler did not present sentencing judges with 'new' guidance. It was simply an easy reference point; a digest of the previous application of the (F)(6) factor." Id. at 1044-45. We agree with the Arizona Supreme Court's interpretation of Gretzler. In Woratzeck, the Arizona Supreme Court affirmed the trial court's (F)(6) finding, relying on its opinion in State v. Ceja, which held that the sentencer could predicate (F)(6) aggravation on a finding of "additional violence." 115 Ariz. 413, 565 P.2d 1274, 1278 (1977). It found--in language mirroring Ceja 's--that "[t]he violence committed against Linda Leslie was certainly beyond the point necessary to fulfill a plan to steal and even to kill." Ceja 's "additional violence" narrowing construction was the source of Gretzler 's "gratuitous violence" narrowing construction. See Gretzler, 659 P.2d at 11, citing State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980).

The Supreme Court has affirmed Gretzler 's "gratuitous violence" narrowing construction on two occasions, first in Jeffers, 497 U.S. at 770-71, 774-78, 110 S.Ct. at 3096-97, 3098-101 (1990), and again in Richmond, 506 U.S. at 51, 113 S.Ct. at 536-37 (1992) ("murderer who intentionally drives a car over his victim twice arguably commits 'gratuitous violence' within the meaning of Gretzler, whether or not he knows that the victim is dead after the first pass"). There is no distinction between the "additional violence" narrowing construction applied by the Arizona Supreme Court in Ceja and Woratzeck and the "gratuitous violence" narrowing construction approved by the Supreme Court in Jeffers and Richmond.

III

Woratzeck's second argument is that the sentencing court failed to consider mitigating evidence in the record. Woratzeck relies only on the mitigating factors listed in the presentence report and to his alcohol consumption on the day of the murder. The sentencing judge stated:

The defendant and his counsel were further given the opportunity to establish the existence of any circumstances in mitigation as set forth in [A.R.S. ] 13-703(G) ... and as allowed in State of Arizona [v.] Watson [120 Ariz. 441, 586 P.2d 1253 (1978) (Watson ) ]. Additional testimony was offered by the defendant, admitted in evidence and considered by the Court. In addition, the Court reviewed the trial testimony and statements to the Casa Grande police by Mr. Dino Marcanado, as requested by the defendant.

Woratzeck points to no specific evidence not considered by the sentencing court. He argues, instead, that, even though the intoxication level did not rise to a level high enough to qualify as a statutory mitigating factor under section 13-703(G), the evidence of his intoxication should have been and was not considered as a nonstatutory mitigating factor. However, Watson, cited by the sentencing court, holds that all nonstatutory evidence is to be considered. It is therefore clear that the judge considered nonstatutory evidence and determined that Woratzeck's alcohol consumption did not constitute a mitigating circumstance.

IV

Woratzeck's third claim is that aggravating factor (F)(5)--that the crime was committed with the expectation of receiving anything of pecuniary value--failed in this case to channel the discretion of the sentencer. "To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (internal quotation omitted).

Woratzeck argues that factor (F)(5) is automatically found in cases where one is convicted of robbery felony-murder. Woratzeck states:

Because the (F)(5) factor means that robbery will cause the defendant to be a first-degree murderer and eligible for the death penalty, the class of persons who receive the death penalty has not been genuinely narrowed. Instead, all those who kill without premeditation in the course of a robbery are automatically death-eligible and will be executed in the absence of sufficient mitigating factors.... For a felony murder committed during the course of a robbery, the State does not have to establish any additional aggravating circumstance at all: the pecuniary gain factor does that for them.

(Emphasis in brief.)

An examination of the application of factor (F)(5) in Arizona does not support Woratzeck's argument. In State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991), the Arizona Supreme Court considered whether (F)(5) "amounts to double-counting." The Arizona Supreme Court concluded that there was no double-counting, because to "prove robbery, the state must show a taking of property from the victim; to prove pecuniary gain, the state must show the actor's motivation was the expectation of pecuniary gain. Proving a taking in a robbery does not necessarily prove the motivation for a murder." Id. at 31 (emphasis in original, internal citations omitted).

Greenway illustrates why Woratzeck's claim fails. It is not true that everyone convicted of robbery felony-murder is automatically death eligible. The State needs to prove at sentencing that the killing was done with the expectation of pecuniary gain. Even if it is true that under many circumstances a person who kills in the course of a robbery is motivated to do so for pecuniary reasons, that is not necessarily so. Cf. State v. Smith, 146 Ariz. 491, 707 P.2d 289, 299 (1985) ("Under the facts of this case (but certainly not of all robberies) the commission of the killing necessarily carried with it the expectation of pecuniary gain.") (emphasis in original). A defendant is free to argue that the killing was motivated by reasons unrelated to pecuniary gain.

Because aggravating factor (F)(5) is not automatically applicable to someone convicted of robbery felony-murder, the factor serves to narrow the class of death-eligible persons sufficiently, so long as that factor is not unconstitutionally vague and does not result in irrational sentencing. The factor is not unconstitutionally vague.

Woratzeck also argues, however, that factor (F)(5) results in irrational sentencing, by making "automatically eligible for death those who did not intend to kill during their felony, while simultaneously protecting from death those premeditated killers (who did not also rob) having no other aggravating factors."

Although factor (F)(5) does not automatically make someone convicted of robbery felony-murder death eligible, the factor might still be unconstitutional if it fails to foreclose the "wanton and freakish" imposition of the death penalty. See United States v. Cheely, 36 F.3d 1439, 1445 (9th Cir.1994) (holding certain death penalty provisions of the federal mail bomb statute unconstitutional).

In Tison v. Arizona, 481 U.S. 137, 147, 107 S.Ct. 1676, 1682-83, 95 L.Ed.2d 127 (1987), the Supreme Court made it clear that sentencing someone to death for robbery felony-murder is not impermissible. Tison examined Arizona's death penalty provisions in the felony-murder context and held that the "reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." Id. at 157-58, 107 S.Ct. at 1688.

Woratzeck's conviction for robbery felony-murder--when coupled with the findings of aggravating circumstances present here--sufficiently meets the culpability requirements that make his crime one for which death is a constitutionally permissible penalty.

That someone who intentionally kills might not be sentenced to death in Arizona does not mean that Woratzeck's death sentence is unconstitutional. If an intentional killing is done for pecuniary gain, then death is also a permitted penalty. Woratzeck's first-degree felony-murder conviction is treated no differently from any first-degree conviction for intentional killing and neither crime alone can result in death absent a finding of one or more aggravating circumstances.

The State of Arizona could rationally conclude that a defendant's motive to murder more accurately reflects his relative culpability than whether the murder is done with an affirmative intent to kill or "merely" an utter disregard for whether the victim lives or dies.

As the Supreme Court adeptly recognized in Tison, "the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property ... may [possess a mental state] every bit as shocking to the moral sense as an 'intent to kill.' " Id. at 157, 107 S.Ct. at 1688. Factor (F)(5) sufficiently channels the sentencer's discretion and does not result in unconstitutionally disproportionate imposition of the death penalty when applied to felony-murder defendants.

Finally, when analyzing the factor (F)(5) claim, the district court asserted that a double jeopardy violation had been alleged. It then rejected that claim. See Woratzeck III, 863 F.Supp. at 1088. Woratzeck contends that this misconstrued his argument and, indeed, no mention of the Double Jeopardy Clause is made on appeal. To the extent that any double jeopardy violation had been asserted, it has apparently been abandoned. We express no opinion concerning the district court's view on the issue.

V

Woratzeck's fourth claim is that aggravating factors (F)(5) and (F)(6) were not found to exist beyond a reasonable doubt. We do not need to resolve the question whether federal law requires all aggravating circumstances in death penalty cases to be proven beyond a reasonable doubt. Even if federal law requires aggravating circumstances to be proven beyond a reasonable doubt, that standard was reached in this case. See State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (Jordan ), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); Clark v. Ricketts, 958 F.2d 851, 860 (9th Cir.1991) (Clark ), cert. denied, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992).

Woratzeck was sentenced, and the Arizona Supreme Court independently reviewed that sentence, after Jordan. In Jordan, the Arizona Supreme Court concluded that the state must prove the existence of aggravating circumstances beyond a reasonable doubt. Jordan, 614 P.2d at 828. In Clark, we held that since the Arizona Supreme Court had "independently reviewed the facts ... it is ludicrous to suggest the court did not find the aggravating circumstances established according to the standard it so recently announced in Jordan." Clark, 958 F.2d at 860. The same logic applies here. We presume that the Arizona Supreme Court properly applied its own law, Walton, 497 U.S. at 653, 110 S.Ct. at 3057, and found the aggravating circumstances beyond a reasonable doubt as required by Jordan.

The only question, therefore, is whether a rational factfinder could have concluded on this record that Woratzeck committed the crime in a heinous or depraved manner or with the expectation of the receipt of something of pecuniary value. We have already held that the finding of heinousness and depravity is "fairly supported by the record." Woratzeck II, 820 F.2d at 1458.

Evidence showed that Woratzeck's actions were beyond the point necessary to rob or even to kill. Leslie was stabbed three times, strangled, and then struck twice with a blunt object on the head. The strangulation broke the bones in the front of her neck. One of the stab wounds severed the main artery to the heart and penetrated the liver. The injury to the head forced bone matter into the brain. There is no serious question that Leslie was dead when Woratzeck left. The evidence clearly supports a finding that the crime was committed in a heinous and depraved manner.

As for the pecuniary gain factor, the evidence examined by the Arizona Supreme Court is sufficient to allow a rational factfinder to conclude that Woratzeck was motivated to kill by the prospect of pecuniary gain. Not only was Woratzeck convicted of robbery, but evidence showed that Woratzeck was having severe financial problems and believed that Leslie owed him money. The evidence supports the finding of aggravating factor (F)(5).

VI

Woratzeck next argues that he was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. Woratzeck asserts that his trial counsel was ineffective because he failed to investigate mitigating evidence or present witnesses at the sentencing hearing.

In our vacated opinion, we previously held that Woratzeck's counsel was not ineffective in this regard. Woratzeck II, 820 F.2d at 1456. We vacated our prior judgment to allow the district court to consider recent Supreme Court and Ninth Circuit authority concerning a different issue.

We need not revisit whether Woratzeck's counsel made a sufficient effort to contact possible mitigating witnesses and whether his decision not to call witnesses at the sentencing proceedings constituted deficient performance, because the evidence presented to us indicates that Woratzeck was not prejudiced by the failure to make such further investigation or to call additional witnesses. We hold that even if Woratzeck's lawyer had contacted additional family members, there is not a reasonable probability that Woratzeck would have received a life sentence. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The witnesses at the Rule 32 proceeding indicated that if asked, they would have testified as to Woratzeck's history of nonviolence, his positive relationships with his family members, his problems with alcohol, and his failed attempt to resuscitate his father. All of this information was in the presentence report, which the sentencing court considered for mitigation purposes. We agree with the Rule 32 court's determination that no "significant mitigating circumstances could have been presented which [were] not contained in the record."

VII

Woratzeck's final claim is that his sentence violates the Eighth Amendment because Arizona law arbitrarily selected him for the death penalty. In light of our conclusions regarding the proper application of factors (F)(5) and (F)(6), Woratzeck's argument fails. See Walton, 497 U.S. at 655-56, 110 S.Ct. at 3058 (A court that has "just concluded that the challenged factor[s] [have] been construed ... in a manner that furnishes sufficient guidance to the sentencer ... lawfully may presume that [the] death sentence was not wantonly and freakishly imposed--and thus that the sentence is not disproportionate within any recognized meaning of the Eighth Amendment.") (internal quotations omitted)

AFFIRMED.

 
 

118 F.3d 648

William Lyle WORATZECK, Petitioner,
v.
Terry L. STEWART, Director, Department of Corrections, Respondent.

No. 97-80296.

United States Court of Appeals,
Ninth Circuit.

Submitted June 24, 1997.*
Decided June 24, 1997.

Petition for Permission to File a Second Petition for Writ of Habeas Corpus in the District Court.

Before: WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.

PER CURIAM.

Woratzeck, an Arizona state prisoner sentenced to death tomorrow morning at 12:05 a.m., seeks permission to file a successive petition for habeas corpus in the district court. The Supreme Court of Arizona denied all relief this afternoon, June 24, 1997. We now have jurisdiction under 28 U.S.C. 2244, and we deny his motion.

I

* We previously detailed the crimes for which Woratzeck was convicted, and need not do so again here. See Woratzeck v. Stewart, 97 F.3d 329 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1443, 137 L.Ed.2d 549 (1997). Woratzeck filed this motion on June 20, 1997. Thus, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Act) apply.

Before filing a successive petition in the district court, 28 U.S.C. 2244(b)(3) requires Woratzeck to make a "prima facie showing" to this court that his petition would satisfy section 2244(b)(2). The Seventh Circuit recently discussed this ambiguous standard:

By "prima facie showing" we understand [it to be] simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.... If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition, we shall grant the application.

Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997). We agree with the Seventh Circuit's interpretation of "prima facie showing." If Woratzeck's application makes a prima facie showing as to one of the claims, he may proceed upon his entire application in the district court. See 28 U.S.C. 2244(b)(4); Nevius v. McDaniel, 104 F.3d 1120, 1121 (9th Cir.1996) ("[T]he proper procedure under the [Act] is for this court to authorize the filing of the entire successive application.").

Section 2244(b)(2) requires dismissal of a successive petition unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Woratzeck does not assert that a "new rule of constitutional law" requires reversal of his sentence, so we focus solely upon section 2244(b)(2)(B).

II

Woratzeck argues that crime scene evidence (the victim's nightgown, Woratzeck's shirt, pants, and boots), long thought destroyed, may still exist. He asserts that this evidence, which the State used to convict him, will now exonerate him because of advances in DNA technology. Under section 2244(b)(2)-(3), Woratzeck must make a prima facie showing that he could not have discovered previously the factual predicate for his claim through the exercise of due diligence.

Woratzeck contends that his counsel, Kevin Hamilton, asked the Pinal County Clerk's Office for permission to test the crime scene evidence years ago, but a person in the clerk's office told him that the evidence was destroyed.

On May 13, 1997, Ruth Todd Chattin, another member of Woratzeck's defense team, visited the Pinal County Courthouse to inspect any remaining evidence. When Doedy Arnold, the court clerk, retrieved Woratzeck's file, she noticed a paper attached to the front of the file stating: "By Order of Judge Bean 4/15/88 Do Not Shred or Destroy Exhibits." Chattin asked Arnold to look for the crime scene evidence. Arnold searched the courthouse for an hour, but found nothing. Arnold told Chattin that the crime scene evidence probably existed because there was no order permitting the destruction or release of the evidence.

On May 30, 1997, Chattin met with Arnold, Denise Sowers (Ms. Arnold's supervisor), Leonard Sowers (from the county attorney's office), and Galen Wilkins (from the State Attorney General's office). At that meeting, Arnold explained that she and Sowers continued to look for the missing crime scene evidence.

They found a box bearing Woratzeck's case name and number, but it did not contain the missing evidence. Inside the box was an envelope containing a card that read in part: "(All other exhibits are either filmable or released/destroyed) L.J.S. 12-30-87," and "I did not have access to complete file to investigate." Sowers and Arnold surmised that the initials were those of Lennie Sepulveda, a former court employee. Sowers and Arnold believed that the sentence "All other exhibits are either filmable or released/destroyed" meant that the missing crime scene evidence had in fact been destroyed.

Sowers and Arnold also checked the outside of other evidence boxes located in the evidence vault, but none bore Woratzeck's name or case number. They did not open each box to verify its contents. It is also unclear whether they inspected a storage area where the court keeps office equipment and some older case materials.

Woratzeck must make a prima facie showing that this evidence exists, and that it would exonerate him under the stringent standard of section 2244(b)(2). While Woratzeck's investigation uncovered initial confusion in the clerk's office, it did not uncover any proof that the crime scene evidence still existed.

After reviewing the declarations filed with this motion, we conclude that Woratzeck has failed to establish the requisite prima facie case that the evidence still exists. Woratzeck's speculation, without more, does not make it "reasonably likely that [his] application satisfies the stringent requirements for the filing of a second or successive petition." Bennett, 119 F.3d at 469-70. Since Woratzeck has failed to make a prima facie showing that this evidence exists, we must reject this claim.

III

Woratzeck next asserts that even if the evidence was destroyed, he still has a claim under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, the Court held that, absent bad faith on the government's part, the loss of potentially exculpatory evidence does not violate the Constitution. Id. at 58, 109 S.Ct. at 337-38. Under section 2244(b)(2)(B)(i), we inquire as to whether Woratzeck has made a prima facie showing that he exercised due diligence in uncovering the factual predicate for this claim.

While Woratzeck recently learned that the evidence may exist, he has known about its (possible) destruction for several years. Indeed, the card which appears to state the evidence was destroyed was dated three months before Woratzeck's third petition in the state court. He has failed to show why he could not have raised this issue previously. Thus, Woratzeck cannot make a prima facie showing of due diligence for this claim, and the Act forecloses it.

IV

Next, Woratzeck argues that the jury foreman, Scott Holzhauser, served as a "witness" while the jurors were deliberating. According to Woratzeck's counsel, Holzhauser recently admitted that he has a PhD and could not explain why the juror data sheet stated he had 16 years of education. Holzhauser also stated to counsel that while the jury was deliberating, he stated that the State's fiber expert was not properly explaining the tests. From three other jurors, counsel was advised that the expert said that the trailer fibers were "similar" to those found on Woratzeck, but Holzhauser stated to his fellow jurors that, based on his experience with infra-red spectrophotometry, the fibers were as reliable as finding Woratzeck's fingerprints at the crime scene.

Again, we first must decide whether Woratzeck has made a prima facie showing that he could not have uncovered this evidence through the previous exercise of due diligence. Woratzeck asserts that his previous counsel tried to interview previous jurors, but they refused to talk to him. However, the jurors' refusal to talk to one lawyer does not establish a prima facie case of due diligence. Woratzeck has had more than fifteen years to uncover this claim, and has not shown how "due diligence" could not have uncovered this evidence. Woratzeck has failed to make a prima facie showing of due diligence.

V

Woratzeck next argues that his execution violates the Eighth Amendment because the issuance of the death warrant in his case, as opposed to the other more violent death row cases, is "freakish and wanton" in violation of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). He cites the dissent in Jeffers v. Lewis, 38 F.3d 411, 425-26 (9th Cir.1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995), for support.

If Woratzeck's death sentence does not violate the Eighth Amendment, then neither does the scheduling of his execution. Arizona must establish some order of execution. There has been no prima facie showing that this scheduling violates the Eighth Amendment.

It may be that Woratzeck's contention is in essence that his execution violates the Equal Protection Clause. Essentially, he argues that Arizona unfairly singled him out for execution. In other Equal Protection Clause cases, the Supreme Court has rejected a "singling out" argument. See Railway Express Agency v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949) ("It is no requirement of equal protection that all evils of the same genus be eradicated or none at all."); cf. New York City Transit Authority v. Beazer, 440 U.S. 568, 587-88, 99 S.Ct. 1355, 1367, 59 L.Ed.2d 587 (1979) ("[o]nly when a governmental unit adopts a rule that has a special impact on less than all the persons subject to its jurisdiction does the question whether [the Equal Protection Clause] is violated arise").

Because Arizona permissibly sentenced Woratzeck to death, it has a rational basis for executing him. Thus, Woratzeck has failed to make a prima facie showing of a violation of equal protection. If Arizona had issued the death warrant in Woratzeck's case because of his race, religion, or sex, Woratzeck might have had a constitutional claim. But Woratzeck makes no such allegation, so we do not reach that question.

VI

Last, Woratzeck argues that the involvement as prosecutors in the clemency hearing of two of his prior lawyers presents a constitutional conflict of interest. While their involvement in the clemency hearing may violate ethical rules, this claim is not cognizable under the Act. There is no constitutional right to a clemency hearing. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981) ("Unlike probation, pardon and commutation decisions have not traditionally been the business of the courts; as such, they are rarely, if ever, appropriate subjects for judicial review.... [A]n inmate has no 'constitutional or inherent right' to commutation of his sentence."); see Joubert v. Nebraska Bd. of Pardons, 87 F.3d 966, 968 (8th Cir.) ("It is well-established that prisoners have no constitutional or fundamental right to clemency."), cert. denied, --- U.S. ----, 117 S.Ct. 1, 135 L.Ed.2d 1097 (1996).

Since there is no constitutional right to clemency, and because clemency does not depend upon actual innocence, we hold that Woratzeck's clemency claim is not cognizable in a successive petition under the Act. See Hatch v. Oklahoma, 92 F.3d 1012, 1016 (10th Cir.1996). Thus, Woratzeck has failed to make a prima facie showing on his clemency claim.

Whether Woratzeck can raise this issue under 42 U.S.C. 1983 is not before us.

MOTION DENIED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4

 

 

 
 
 
 
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