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
Woratzeck says he did not kill Leslie, isn't sure
who did, but thinks some facts unexamined at the trial need to be
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
He says among those men was a Casa Grande police
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.
Presiding Judge: Robert R. Bean
Prosecutor: W. Allen Stooks
Start of Trial: September 10, 1980
Verdict: September 15, 1980
Sentencing: November 10, 1980
Especially heinous/cruel/depraved (cruel struck on appeal)
State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865
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).
Arizona Department of Corrections "Death Row" Web site
"Profiles of Arizona Death Row Inmates," Arizona Attorney General's
The Arizona Republic archives
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,
James R. RICKETTS, and Donald Wawrzaszek,
United States Court of Appeals
the Ninth Circuit
September 16, 1986
the United States District Court for the
District of Arizona.
WALLACE, FARRIS and BOOCHEVER, Circuit Judges.
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.
* 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.
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.
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.
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).
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.
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.
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.
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
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
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
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.
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).
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.
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.
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.
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
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.
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
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.
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
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).
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.
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
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.
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).
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 ).
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).
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
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
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
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
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
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
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).
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.
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,
Terry STEWART, Director, Department of Corrections,
Court of Appeals,
Submitted June 14, 1995.
Submission Deferred June 21, 1995
and Aug. 18, 1995.
Submitted Sept. 17, 1996.
Decided Sept. 24, 1996.
the United States District Court for the
District of Arizona, C.A. Muecke, District Judge,
Presiding. D.C. No. CV-84-01783-CAM.
WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.
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.
* 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.
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
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.
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.
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.
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
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,
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
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).
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.
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."
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).
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.
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.
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.
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.
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
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
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.
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:
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.
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
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
argues that factor (F)(5) is automatically found
in cases where one is convicted of robbery
felony-murder. Woratzeck states:
(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.
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
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
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
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
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
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.
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
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
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
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.
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
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.
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.
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
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
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
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.
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."
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)
118 F.3d 648
William Lyle WORATZECK, Petitioner,
Terry L. STEWART, Director, Department of
Court of Appeals,
Submitted June 24,
Decided June 24, 1997.
Permission to File a Second Petition for Writ of
Habeas Corpus in the District Court.
WALLACE, FARRIS, and BOOCHEVER, Circuit Judges.
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.
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.
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
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
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
2244(b)(2) requires dismissal of a successive
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
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.
not assert that a "new rule of constitutional
law" requires reversal of his sentence, so we
focus solely upon section 2244(b)(2)(B).
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
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
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.
Woratzeck can raise this issue under 42 U.S.C. §
1983 is not before us.