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Woods v. Avenentti

*fn* submitted san francisco california: February 5, 1993.

JERRY DEAN WOODS, PETITIONER-APPELLANT,
v.
JOHN AVENENTTI, WARDEN, ET AL., RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Arizona. D.C. No. CV-89-00568-PGR-M. Paul G. Rosenblatt, District Judge, Presiding

Before: Farris, Poole, and Wiggins, Circuit Judges

MEMORANDUM

This is an appeal from the district court's dismissal of Arizona prisoner Jerry Dean Woods' petition for writ of habeas corpus. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm.

I. Facts

Patrick Joseph Eppler disappeared on June 7, 1981. Subsequently, his father employed a private investigator, Michael Roe, to locate Patrick.

Roe's investigation led him to Jeffrey Lange. Lange met with Roe and told him that Patrick had been shot to death by Jerry Dean Woods. After encouragement from his mother and Roe, Lange agreed to accompany Roe to the police station and turn himself in. Lange's statements to the police ensured him a plea agreement to one count of theft and five years probation. One condition of the plea agreement was that Lange testify at Woods' trial. In doing so, Lange testified to the following facts.

In June of 1981, Lange visited his mother in Phoenix. During the visit, he met Patrick Eppler and Woods. Lange and Woods agreed to hitchhike to Colorado; Patrick agreed to drive them as far as Flagstaff.

The trio left Phoenix at about 3:20 a.m. on June 7, 1981. Patrick was driving. Lange fell asleep along the way. Some time later, Woods nudged Lange awake. Lange noticed that the truck was parked within sight of the freeway. Woods and Patrick were outside near the back of the truck when Lange heard a gunshot. Lange jumped out of the truck in time to see Patrick fall to the ground. When he asked Woods what was happening, Woods told him to shutup and to help load the body into the truck.

While driving down the freeway, Woods told Lange to keep his mouth shut because he was "part of it." Several miles down the road, Woods exited the freeway and followed several dirt roads before stopping and unloading Patrick's body. After returning to the freeway, Woods had Lange throw Patrick's billfold out of the truck window. The two proceeded to Colorado.

Phoenix police officers Tolford and Penberthy took Woods into custody in late October, 1981. Phoenix detectives Lines and Jesser interviewed Woods at the police station, and Woods confessed to shooting Patrick in the ear with a .22 caliber Derringer.*fn1 Although Woods indicated that Lange had been in favor of shooting Patrick, at no time did he implicate Lange as the murderer.

During Woods' trial testimony, he indicated that it was Lange who shot Patrick, that it was Lange who took Patrick's wallet and threw it out the truck window, and that it was Lange who decided where to dispose of the body. On cross-examination, Woods testified that he had been under the influence of alcohol and pills when Detectives Lines and Jesser initially had interviewed him, but admitted that he had not testified to that effect at a previous bond hearing. Woods also testified that he did not remember having received Miranda warnings.

During his trial testimony, Detective Lines testified that he could not detect any influence of drugs or alcohol on Woods at the time of the first interview and stated that Woods never asked for an attorney or invoked his right to remain silent. Officer Shay, who helped arrest Woods, testified to the same.

A jury convicted Woods of murder and armed robbery. The Arizona Supreme Court affirmed the convictions. Woods filed a petition for writ of habeas corpus, which the district court dismissed. Woods appeals.

II. Standard of Review

We review de novo the decision whether to grant or deny a petition for writ of habeas corpus. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991). "To the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Id. State court factual Conclusions are entitled to a presumption of correctness under 28 U.S.C. § 2254(d) (1988). See Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 870 (1992).

III. Discussion

A. Woods' Failure to Raise Both His Double Jeopardy Claim and His Challenge to the Jury Instructions at the State Level Resulted in Those Claims Being Procedurally Barred

Woods first argues that his Double Jeopardy claim or his jury instruction claim*fn2 should not be procedurally barred. We disagree.

A federal court has the authority to review a federal constitutional claim presented by a state prisoner only if available state remedies have been exhausted. 28 U.S.C. § 2254(a), (b). However, if a federal constitutional claim no longer can be raised because of a failure to follow the prescribed procedure for presenting the issue to the state court, the claim is procedurally barred. See Murray v. Carrier, 477 U.S. 478, 485 (1982); Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). Once a claim is procedurally barred, a state prisoner may not obtain federal habeas corpus relief absent a showing of "cause and prejudice." Reed v. Ross, 468 U.S. 1, 11 (1984).

With respect to the Double Jeopardy claim, the district court pointed out that Woods' brief on direct appeal argued only that his conviction and consecutive sentence for armed robbery violated A.R.S. § 13-116. To the extent that Woods now argues that his armed robbery conviction and sentence violate the Fifth Amendment and due process, those claims are procedurally barred because he has failed to present them to the state courts. See Picard v. Connor, 404 U.S. 270, 278 (1971). ...


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