Appeal from the United States District Court for the District of Arizona. D.C. No. CV-84-02322-PHX-RCB. Robert C. Broomfield, District Judge, Presiding.
Before: Betty B. Fletcher, Jerome Farris and Robert R. Beezer, Circuit Judges. Opinion by Judge Farris; Partial Concurrence and Partial Dissent by Judge Fletcher.
Jose Jesus Ceja is on death row in Arizona. He appeals the district court's denial of his habeas corpus petition. We have jurisdiction. 28 U.S.C. §§ 1291 and 2253. We affirm.
In 1974, Ceja was tried, convicted and sentenced to death for the drug related murders of Linda and Randy Leon. The Arizona Supreme Court reversed his conviction and sentence, primarily because of hearsay problems with ballistics evidence. State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (Ariz. 1976). In 1976, Ceja was retried, convicted and again sentenced to death upon the finding of two statutory aggravating factors. The Arizona Supreme Court, after conducting an independent review of the record, found insufficient evidence for one of the aggravating factors. It nonetheless affirmed the death penalty on the basis of the second, that the crime was "committed in an especially cruel, heinous and depraved manner." State v. Ceja, 115 Ariz. 413, 565 P.2d 1274, 1278 (Ariz. 1977).
After the Supreme Court decided Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Arizona Supreme Court ordered the resentencing of all death row inmates. Following a third aggravation and mitigation hearing, conducted in 1979, Ceja was again sentenced to death. The Arizona Supreme Court affirmed. State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (Ariz. 1980).
After the Arizona courts denied him relief in a Rule 32 proceeding - the mechanism for state collateral attacks - Ceja filed this habeas petition. It is his first in federal court. The district court proceedings were stayed for some time while Ceja returned to state court for a second Rule 32 proceeding. On May 5, 1994, the district court granted summary judgment in favor of Arizona. Ceja's appeal was timely.
We review de novo the district court's summary judgment. Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992) (en banc), cert. denied, 507 U.S. 992, 113 S. Ct. 1600, 123 L. Ed. 2d 163 (1993). Ceja raises forty-one claims in his petition. For clarity, we reference each claim with the number assigned to it in the district court, although we do not discuss the claims in numerical order. The district court rejected on the merits claims 9, 12, 15-30, 32, and 33. It rejected on the basis of procedural default claims 1-8, 10, 11, 13, 14, 31, and 34-41.
I. Claims Rejected on the Merits by the District Court
A. Constitutionality of Arizona's "Especially Heinous, Cruel or Depraved" Aggravating Factor (Claim 16)
Ceja's death sentence was premised on statutory aggravating circumstance (F)(6): "The defendant committed the offense in an especially heinous, cruel or depraved manner." A.R.S. § 13-703(F)(6) (formerly A.R.S. § 13-454(E)(6)). There is no dispute that this aggravating circumstance is facially vague. Arizona contends, however, that the Arizona courts applied a constitutionally sufficient narrowing construction. Ceja counters that the Arizona Supreme Court did not provide such a construction until it decided State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (Ariz.), cert. denied, 461 U.S. 971, 77 L. Ed. 2d 1327, 103 S. Ct. 2444 (1983), three years after it affirmed his death sentence in State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (Ariz. 1980). While Ceja's appeal was pending, the Arizona Supreme Court issued a stay of execution in State v. Mata, No. CR-774104-AP/PC (Ariz. July 6, 1995), to determine whether state or federal law required resentencing of those defendants who were death-qualified by a pre- Gretzler (F)(6) finding. In the interests of comity, we granted a stay of appeal. On May 9, 1996, the Arizona Supreme Court lifted Mata's stay of execution, holding that " Gretzler did not present a new, narrower interpretation of the (F)(6) factor, but simply a digest" of valid narrowing constructions set forth in earlier cases. On May 22, 1996, we lifted the stay of appeal.
In affirming Ceja's second and third death sentences, the Arizona Supreme Court explained that a heinous and depraved finding could be predicated on "'additional violence[ ] over and above that which was necessary to carry out the defendant's criminal intent.'" Ceja, 612 P.2d at 495-96 (citing Ceja, 565 P.2d at 1278). The Arizona courts found that Ceja shot Linda six times, hitting her four times in the head and twice in the chest, and that he shot Randy four times, hitting him once in the chest, once in the back, once in the shoulder, and once in the arm. The Arizona courts also found that Ceja kicked Randy in the head as Randy lay dead or dying on the floor. The Arizona Supreme Court concluded that Ceja's "'conduct in continuing his barrage of violence, inflicting wounds and abusing his victims, beyond the point necessary to fulfill his plan to steal, beyond even the point necessary to kill'" warranted (F)(6) aggravation. Id. (citing Ceja, 565 P.2d at 1278).
A narrowing construction of a facially vague aggravating circumstance is constitutionally sufficient if it helps the sentencer make a principled distinction between those who deserve the death penalty and those who do not. Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188, 113 S. Ct. 1534 (1993). Citing its 1980 Ceja opinion, the Arizona Supreme Court held in Gretzler that "the infliction of gratuitous violence on the victim" was one of five narrowing constructions that could support (F)(6) aggravation. 659 P.2d at 11 (citing State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980)). The Supreme Court has twice approved this narrowing construction, first in Lewis v. Jeffers, 497 U.S. 764, 770-71, 774-78, 783-84, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990), and again in Richmond v. Lewis, 506 U.S. 40, 51, 121 L. Ed. 2d 411, 113 S. Ct. 528 (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 the 1977 and 1980 Ceja opinions and the "gratuitous violence" narrowing construction approved by the Supreme Court in Jeffers and Richmond. The Arizona Supreme Court had provided an adequate narrowing construction for aggravating circumstances involving "additional violence" in 1977, prior to Ceja's resentencing in 1979.
B. Sufficiency of Admissible Evidence Supporting Aggravation Finding (Claims 12 and 13)*fn1
Ceja challenges the sufficiency of admissible evidence supporting the (F)(6) finding. He contends that admissible evidence does not support the finding that he inflicted numerous gunshot wounds to both victims beyond the number necessary to kill and repeatedly kicked Randy Leon in the head. We must affirm if any rational factfinder could find beyond a reasonable doubt that Ceja inflicted additional violence on his victims. See Lewis v. Jeffers, 497 U.S. 764, 781-84, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990).
Testimony at trial concerning the multiple gun shot wounds was uncontradicted. The state's pathologist testified (1) that each of the six shots to Linda's head and chest could have killed her and (2) either the shot to Randy's back or the shot to his chest could have killed him. At the sentencing hearing, Detective Ysasi testified that he "did not know why [Ceja] kicked [Randy] in the head." In a post-sentencing affidavit, the medical examiner stated that he could not determine "with any degree of medical certainty that [the] abrasions [on Randy's face] were caused by a kick." This statement, and the medical examiner's observation that the abrasions were "consistent with a fall to the floor" do not contradict Detective Ysasi's testimony.
Based on either the evidence regarding the multiple gunshot wounds or the testimony of Detective Ysasi, a rational factfinder could conclude, as the Arizona courts did, that Ceja inflicted additional violence on his victims.
C. Burden of Proof for Aggravating Factors (Claim 15)
Ceja contends that the Arizona courts erred in failing to find (F)(6) beyond a reasonable doubt, the standard of proof the Eighth Amendment mandates for aggravating circumstances. Arizona counters that we may presume that the Arizona courts found (F)(6) beyond a reasonable doubt even though they never used the reasonable doubt language. We agree. One month after it affirmed Ceja's death sentence, the Arizona Supreme Court construed its death penalty statute to require proof beyond a reasonable doubt. State v. Jordan, 126 Ariz. 283, 614 P.2d 825, 828 (Ariz.), cert. denied, 449 U.S. 986, 66 L. Ed. 2d 251, 101 S. Ct. 408 (1980). It stated that it had "always assumed . . . that the state must prove the existence of aggravating circumstances beyond a reasonable doubt," and noted that its past practice was to "reduce a death penalty to life imprisonment where the evidence of aggravating factors is inconclusive." Id. (citing cases). The evidence of the multiple gunshot wounds was uncontradicted, and the Arizona Supreme Court affirmed Ceja's sentence after making "an independent examination of the record to determine whether the death penalty was properly imposed." Ceja, 612 P.2d at 495. The Arizona courts found (F)(6) beyond a reasonable doubt. Cf. Clark v. Ricketts, 958 F.2d 851, 860 (9th Cir.) (Arizona Supreme Court presumed to have applied reasonable doubt standard shortly after Jordan was decided), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 73 (1992). The record contains sufficient evidence to support a finding of (F)(6) beyond a reasonable doubt.
D. Adequacy of Arizona Courts' Consideration of Mitigating Evidence (Claims 18-24)
Ceja contends that the Arizona courts (1) discounted mitigating evidence based on assumptions unsupported by the record, (2) failed to give sufficient weight to mitigating evidence, and (3) failed to weigh the combined impact of all mitigating circumstances.
1. Evidence Supporting Factual Findings
Ceja attacks a number of factual findings made by the sentencing court as "unsupported" by the record. Each of these findings, however, is supported by direct or circumstantial evidence introduced at trial or the sentencing hearing. The sentencing court's findings that Ceja had on at least one prior occasion stolen drugs and had used family and friends to dispose of the drugs he stole from Randy and Linda are supported by his former wife's testimony at the aggravation and mitigation hearing. The sentencing court's finding that the killings "were not the actions of a panic-stricken, inexperienced immature youth but rather those of a mature, sophisticated criminal mind" are supported by evidence of planning and concealment. The sentencing court's finding that there was deliberation between the killings of Linda and Randy can be inferred from circumstantial evidence. Ceja told Detective Ysasi that after he had shot Linda and dragged her into the bedroom, he saw Randy pull up to the house in his car. Because his own gun was empty, Ceja went to the den, where he knew Randy kept a gun, took it and confronted Randy when he entered the house. Finally, as discussed in Part IB above, there was sufficient evidence supporting the finding that Ceja kicked Randy.
2. Consideration Given to Each Mitigating Circumstance
Ceja contends that the sentencing court failed to give sufficient weight to each "mitigating circumstance because it had no guidance on the level of proof necessary to establish a mitigating circumstance." The Arizona courts were required to consider all mitigating evidence offered by Ceja, Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), and it is apparent that they did so. It was for the Arizona courts to "determine the ...