Opposition Brief — Richard Kenneth Djerf, Petitioner v. David Shinn, Director, Arizona Department of Corrections

Supreme Court briefMar 31, 2020

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No. 19–7856

IN THE

SUPREME COURT OF THE UNITED STATES

RICHARD KENNETH DJERF,

PETITIONER,

-vsDAVID SHINN, et al.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

MARK BRNOVICH

ATTORNEY GENERAL

O.H. SKINNER

SOLICITOR GENERAL

LACEY STOVER GARD

CHIEF COUNSEL

GINGER JARVIS

ASSISTANT ATTORNEY GENERAL

CAPITAL LITIGATION SECTION

(COUNSEL OF RECORD)

1275 WEST WASHINGTON

PHOENIX, ARIZONA 85007-2997

CADOCKET@AZAG.GOV

TELEPHONE: (602) 542-4686

ATTORNEYS FOR RESPONDENTS

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Did the state court reasonably determine that after a year and a half of

appointed representation, Djerf voluntarily waived trial counsel and exercised his

constitutional right to self-representation?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW .................................................................................... i

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF THE CASE....................................................................................................... 2

REASONS FOR DENYING THE WRIT ...................................................................................... 3

CONCLUSION ............................................................................................................................... 9

TABLE OF AUTHORITIES

Cases

Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991) ........................................................ 13

Bell v. Cone, 535 U.S. 685 (2002) ................................................................................ 11

Djerf v. Ryan, 931 F.3d 870 (9th Cir. 2019) .................................................................. 7

Edwards v. Arizona, 451 U.S. 477 (1981) ................................................. 7, 8, 9, 12, 14

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................. 11

Johnson v. Zerbst, 304 U.S. 458 (1938)....................................................................... 10

Lindh v. Murphy, 521 U.S. 320 (1997).......................................................................... 9

Lockyer v. Andrade, 538 U.S. 63 (2003) ..................................................................... 11

Martinez v. Ryan, 566 U.S. 1 (2012) ................................................................... 6, 8, 10

Morris v. Slappy, 461 U.S. 1 (1983) .............................................................................. 8

Pazden v. Maurer, 424 F.3d 303 (3rd Cir. 2005) ........................................................ 13

Sanchez v Mondragon, 858 F.2d 1462 (10th Cir. 1988) ............................................. 13

State v. Djerf, 959 P.2d 1274 (Ariz. 1998). ............................................................. 6, 11

Strickland v. Washington, 466 U.S. 668 (1984)............................................................ 8

United States v. Cronic, 466 U.S. 648 (1984) ............................................................... 8

United States v. Silkwood, 893 F.2d 245 (10th Cir. 1989) ......................................... 13

United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) ........................................... 12

Von Moltke v. Gillies, 332 U.S. 708 (1948) ................................................................. 14

Woodford v. Garceau, 538 U.S. 202 (2003) ................................................................... 9

Statutes

28 U.S.C. § 2254(d) ........................................................................................................ 9

28 U.S.C. § 2254(d)(1) .................................................................................................. 11

Rules

U.S. Sup. Ct. R. 10 ..................................................................................................... 2, 7

Constitutional Provisions

U.S. Const., amend. VI .................................................................................................. 8

iii

INTRODUCTION

In retribution for a petty theft committed by Albert Luna Jr., Petitioner

Richard Djerf murdered four other members of Albert’s Jr.’s family—his mother,

father, teenaged sister, and young brother—over the course of several hours in their

home. After exercising his right to self-representation, Djerf pled guilty to four

counts of first-degree murder in exchange for the State dropping several other noncapital counts, because he did not want a jury to hear the horrific facts of his

crimes. 1

At the conclusion of an aggravation/mitigation hearing, 2 a judge

sentenced Djerf to death for each first-degree murder.

Now, in this case governed by the Anti-terrorism and Effective Death Penalty

Act (AEDPA), Djerf alleges that the Arizona Supreme Court unreasonably

determined that he voluntarily waived counsel after eighteen months of appointed

representation, and that the Ninth Circuit erred by concluding otherwise. Djerf

complains that the trial court did not consider whether his counsel had been

constitutionally effective during those eighteen months and simultaneously

criticizes the Ninth Circuit for finding that assigned counsel was, in fact,

constitutionally effective during that period.

compelling reason to grant certiorari.

Djerf has given this Court no

Djerf has not shown that the Ninth Circuit

has entered a decision in conflict with another United States court of appeals on the

same matter, or that it decided an important federal question in a way that conflicts

with a decision by a state court of last resort or with relevant decisions of this

1 Pet. App. 101a, n. 6.

2 Djerf rescinded his waiver and accepted representation for sentencing proceedings.

Pet. App. 89a.

Court. U.S Sup. Ct. R. 10. Instead, he asks this Court to engage in routine error

correction. This Court should decline to do so.

STATEMENT OF THE CASE

Djerf and Albert Luna, Jr. met and became friends while working as night

custodians at a Safeway supermarket. Pet. App. 82a, ¶ 2. In January 1993, Luna

unlawfully entered Djerf ’s apartment and stole several items, including some

electronic equipment and an AK-47 assault rifle. Id. Djerf reported Luna’s crime to

police; however, several months later, Djerf became frustrated and angry at police

inaction and determined to take revenge. Id.

In the late morning hours of September 14, 1993, Djerf went to the Luna

family home, taking his 9mm Beretta handgun, a knife, latex gloves, handcuffs, red

fuse cord, and artificial flowers in a vase to use as a ruse to gain entry. Pet. App.

82a–83a, ¶ 3. Luna’s mother, Patricia, answered the door to receive the flowers, and

Djerf pushed his way into the house, showing her his gun. Id. Djerf bound Patricia,

letting her five-year-old son, Damien, run free. Id. Later, while holding Damien

hostage, Djerf freed Patricia and forced her to place several items of the Lunas’

property into the Luna family car. Id. Next, Djerf took Patricia and Damien into

the kitchen and bound them to chairs with rope and black electrical tape. Id. Djerf

repeatedly asked Patricia whether she or Damien should die first, and if she knew

the whereabouts of her son, Albert Jr. Id.

Around 3:00 p.m., Patricia’s daughter, eighteen-year-old Rochelle, came

home. Pet. App. 83a–84a, ¶ 4. Djerf took Rochelle to her bedroom, gagged her with

tissue paper and tape, tied her wrists to the bed, cut and removed her clothes with a

knife, and raped her. Id. Then he repeatedly stabbed Rochelle in the chest and slit

her throat, killing her. Id. Djerf also inflicted multiple shallow knife wounds to the

back of Rochelle’s head while she was alive, and one, probably postmortem,

superficial stab wound to her right temple. Id. Additionally, Rochelle’s earring had

been torn through the earlobe, and, at some point while still alive, she vomited

behind the gag and aspirated the vomit. Id. Djerf then informed Patricia he had

raped and killed her daughter. Id.

Around 4:00 p.m., Albert Luna, Sr. arrived home from work. Pet. App. 84a,

¶ 5. Djerf handcuffed him, forced him to crawl to the master bedroom, and placed

him face down on the bed; Djerf then struck him in the back of the head multiple

times with an aluminum baseball bat, inflicting three large lacerations and

spattering blood throughout the room. Id. The hemorrhaging from these wounds

was potentially fatal. Id. Djerf removed the handcuffs from Albert, taped his hands

and wrists together, and left him for dead. Id. He then walked to the kitchen and

told Patricia that he had killed her husband. Id.

Next, Djerf turned his attention to Damien, attempting to snap the child’s

neck by twisting his head abruptly from behind, “like he had seen in the movies.”

Pet. App. 84a, ¶ 6. Djerf “turned [Damien’s head] all the way around and nothing

happened,” so he tried to electrocute Damien by cutting an electrical cord from a

lamp in the kitchen, stripping the insulation from the wires, and taping it to the

skin on Damien’s calf. Id.

Although badly injured, Albert Sr. freed himself from the tape around his

wrists, went to the kitchen, and charged Djerf with a pocketknife, wounding him

seriously.

Pet. App. 84a–85a, ¶ 7.

During the ensuing struggle, Djerf stabbed

Albert Sr. with enough force to drive a knife through Albert Sr.’s right arm and into

his torso. Id. Djerf pulled his gun from his belt and shot Albert Sr. six times. Id.

Albert Sr. fell at the feet of his wife and son. Id. Djerf then asked Patricia, “Do you

want to watch your kid die, or do you want your kid to watch you die?” Id. at 85a, ¶

8. Djerf then shot both Patricia and Damien in the head at close range. Id.

Before leaving, Djerf splashed gasoline on the bodies and throughout the

house, turned on two of the kitchen stove burners, and placed an empty pizza box

and a rag on the stove. Pet. App. 85a, ¶ 9. Djerf then drove to his apartment in the

Luna family car with the stolen property inside, where he met his girlfriend, Emily

Boswell at about 6:00 p.m. Id. He told Boswell that he had been stabbed by two

men who tried to rob him; and he later went to the hospital where he was admitted

for treatment. Id.

The pizza box and rag failed to ignite the gasoline. Pet. App. 85a–86a, ¶ 10.

Albert Jr. had not gone to his home the night of September 13, and he did not

return until 11:45 p.m. the day of the murders, September 14, when numerous

unanswered calls to the house had made him anxious. Id. When Albert Jr. entered

the home and discovered the bodies of his parents and brother in the kitchen, he

immediately left and called the police. Id.

The next day, September 15, Djerf told Boswell that he had murdered four

members of the Luna family and described to her how he had done it. Pet. App.

86a, ¶ 11. Djerf told Boswell that the blood dripping from Patricia’s gunshot wound

was “really awesome” and “you should have been there.” Id. In the ensuing days,

Djerf told other friends about his murders of four members on the Luna family. Id.

On September 18, Phoenix police executed search warrants on Djerf ’s motel room,

car, and apartment, where they recovered the items Djerf took to the Luna home

and used during the murders, along with the items he stole from the Luna home.

Id. at ¶ 12.

On August 16, 1995, Djerf entered a plea agreement with the State, pleading

guilty to four counts of first-degree murder for the deaths of Albert Sr., Damien,

Patricia, and Rochelle Luna with no limits on sentencing for the murder counts.

Pet. App. 88a, ¶ 17. In exchange, the State agreed to dismiss the remaining noncapital counts. Id.

On May 22, 1996, following a lengthy aggravation/mitigation hearing, the

trial court rendered a special verdict, finding that the State had proved beyond a

reasonable doubt that all four murders were committed for pecuniary gain, in an

especially heinous, cruel or depraved manner, and during the commission of one or

more other homicides, and additionally that Damien was under the age of 15 while

Djerf was an adult. Pet. App. 89a, ¶ 19. The trial court further found that Djerf

had failed to prove any statutory mitigating factors or the non-statutory mitigating

factors of post-arrest conduct, disadvantaged childhood, psychological disorder,

remorse, adjustment to confinement, and acceptance of responsibility. Id. The court

therefore sentenced Djerf to death for each of the four counts of first-degree murder.

Id.

On automatic direct appeal, the Arizona Supreme Court rejected Djerf’s

claims of trial error and affirmed his convictions. 3

Pet. App. 114a, ¶ 68.

The

supreme court further determined that the aggravating circumstances the trial

court found were established beyond a reasonable doubt and affirmed the death

sentences. Pet. App. 104a–108a and 113a–114a, ¶¶ 45–58, 67–68.

Following his unsuccessful direct appeal, Djerf filed a petition for postconviction relief in state court, which the post-conviction court dismissed because no

claims were colorable or otherwise meritorious. The Arizona Supreme Court denied

review in 2002. Djerf subsequently filed a federal habeas petition in the United

States District Court for the District of Arizona, raising a number of claims. In

2005, the district court dismissed several of Djerf ’s habeas claims as procedurally

barred or non-cognizable.

In September 2008, the district court denied the

remainder of Djerf ’s claims, and granted a certificate of appealability on one issue.

In October 2008, the district court issued a second order denying Djerf ’s subsequent

motion to alter or amend the court’s judgment and expanding the certificate of

appealability to include a second issue.

In 2009, Djerf filed a second petition for

post-conviction relief, which the post-conviction court dismissed, and review of

which the Arizona Supreme Court denied.

This case was fully briefed in the Ninth Circuit in February of 2011.

However, following issuance of this Court’s opinion in Martinez v. Ryan, 566 U.S. 1

(2012), the Ninth Circuit remanded the case for reconsideration of three claims in

the district court. In 2017, the district court denied relief under Martinez on all

3 State v. Djerf, 959 P.2d 1274 (Ariz. 1998).

three claims. Resp. App. 34. After re-briefing and oral argument, the Ninth Circuit

affirmed the district court ruling denying habeas relief, finding that “[t]he State’s

aggravation case stands out as one of, if not the, strongest we have reviewed in

recent years.” 4 Pet. App. 27a, 29a–30a.

REASONS FOR DENYING THE WRIT

This Court grants certiorari only for “compelling reasons.” U.S. Sup. Ct. R.

10. Djerf has not provided any such reasons. Djerf attempts to show a circuit split

on the question presented, but the opinions he cites are factually distinguishable.

The state court in the instant case reasonably applied this Court’s clearly

established federal law, and the ensuing federal habeas review of the court’s

decision correctly affirmed it. This Court should deny certiorari.

THE ARIZONA SUPREME COURT REASONABLY DENIED

DJERF’S CLAIM THAT HIS WAIVER OF TRIAL COUNSEL WAS

INVOLUNTARY AND THERE IS NO COMPELLING REASON FOR

CERTIORARI.

Djerf contends that the Ninth Circuit incorrectly applied this Court’s

precedent, specifically Faretta v. California, 422 U.S. 806 (1975), and Edwards v.

Arizona, 451 U.S. 477 (1981), to conclude that the Arizona Supreme Court

reasonably denied his claim that he did not voluntarily waive his right to counsel.

On habeas review, Djerf contended for the first time that his voluntary waiver of

counsel was involuntary because of appointed counsel’s alleged ineffectiveness

during the pretrial period. The allegation of ineffective assistance of counsel during

eighteen months of pretrial proceedings was not raised in state court, and was thus

procedurally defaulted, however, on limited remand from the Ninth Circuit under

4 Djerf v. Ryan, 931 F.3d 870 (9th Cir. 2019).

this Court’s 2012 opinion in Martinez v. Ryan, was evaluated by the district and

found not substantial—either as a stand-alone claim, or as a retroactively asserted

ground for waiving counsel—because counsel has not performed deficiently. This

finding, in turn, drove the Ninth Circuit’s analysis on the waiver-of-counsel issue.

The Ninth Circuit correctly affirmed the district court’s decision.

A. This Court’s clearly established law and the state court decision.

A defendant has a federal constitutional right to waive counsel and represent

himself. Faretta, 422 U.S. at 836. Self-representation is a “fundamental

constitutional right.” Id. However, a waiver of counsel must be made knowingly,

intelligently, and voluntarily, “which depends upon the particular facts and

circumstances surrounding that case, including the background, experience, and

conduct of the accused.” Edwards, 451 U.S. at 482. The Court has determined that

the Sixth Amendment guarantee of effective assistance “is not to improve the

quality of legal representation, . . . but is simply to ensure that criminal defendants

receive a fair trial.”

Strickland v. Washington, 466 U.S. 668 (1984).

The

appropriate focus when evaluating a Sixth Amendment claim is on the adversarial

process, not the defendant’s relationship with his lawyer.

Cronic, 466 U.S. 648, 656–57 (1984).

See United States v.

In fact, the Sixth Amendment does not

guarantee a “meaningful relationship” between an accused and his counsel. Morris

v. Slappy, 461 U.S. 1, 13–14 (1983).

On direct appeal, applying this Court’s controlling federal law, Edwards and

Faretta, the Arizona Supreme Court found that Djerf’s waiver of counsel was

voluntary, knowing and intelligent. Pet. App. 89a–95a, ¶¶ 20–28. The court noted

that the trial court “fully informed [Djerf] of his right to counsel, the minimum,

maximum, and presumptive sentences, the dangers of self-representation, and the

difficulties in defending oneself without formal legal training.” Id. at 91a–92a, ¶ 23.

Djerf’s attorneys told the court that, while they did not believe it was in his best

interest to do so, Djerf was competent to make the decision to self-represent. Id.

For his part, Djerf told the court that his request to self-represent was due to

insufficient communication from his appointed counsel. Id. The trial court pointed

out to Djerf that his attorneys had been “fully engaged, working on his behalf.” Id.

The Arizona Supreme Court also rejected Djerf’s supplemental claim that his

request to waive counsel and self-represent should have been interpreted as a

request to change counsel because it was contradicted by the record. Pet. App. 95a–

98a, ¶¶ 29–33.

Citing Djerf’s motion to proceed pro se, as well as Djerf’s

interactions and colloquy with the trial court, and Djerf’s subsequent motions, the

state court reiterated that Djerf “requested only that he be allowed to represent

himself.” Id. at ¶ 31. Consequently, because Djerf has “an absolute constitutional

right to act pro se, the trial court correctly determined that [he] was competent and

that the waiver of counsel was made voluntarily, knowingly, and intelligently.” Id.

at ¶ 32.

B. Federal habeas proceedings.

Applying AEDPA, 5 the district court determined that the Arizona Supreme

Court had reasonably rejected Djerf’s challenge to the constitutionality of his waiver

of counsel under Faretta and Edwards and denied relief.

Pet. App. 46a–48a.

5 See 28 U.S.C. § 2254(d); Woodford v. Garceau, 538 U.S. 202, 204 (2003); Lindh v.

Murphy, 521 U.S. 320, 336 (1997).

Subsequently, in the Martinez remand, the district court concluded that Djerf’s

related ineffective-assistance claim was not substantial, and that its procedural

default thus could not be excused. Resp. App. 30–32. In doing so, the district court

relied on Faretta and Edwards, and rejected Djerf’s argument that Johnson v.

Zerbst, 304 U.S. 458 (1938), required additional “contextual” questioning by the

trial court about his relationship with his counsel. Resp. App. 31.

On appeal, the Ninth Circuit agreed that counsel was not constitutionally

deficient during the pretrial proceedings, and thus that the procedural default of

that issue was not excused. Pet. App. 13a. As a result, the claim that Djerf’s

waiver of counsel was involuntary as a result of counsel’s pretrial performance also

failed. Id. The court detailed counsel’s pretrial jail visits, correspondence, witness

interviews, plea negotiations, pretrial motions, evidence review, and participation

in consolidated challenges to DNA evidence, and also observed that Djerf had

personally acknowledged counsel’s considerable pretrial work on his behalf. Pet.

App. At 13a–14a.

The Ninth Circuit further determined that the record belied

Djerf’s contention that his counsel sought continuances because they had done no

work and instead revealed that “brief continuances sought by counsel were

reasonably necessary to permit the continued preparation for trial and

accommodate health issues and other case responsibilities.” Id. at 14a.

Critically, the Ninth Circuit found that, because the record fails to establish

that counsel

provided constitutionally inadequate pretrial assistance, it also fails to

establish that Djerf was forced to choose between self-representation

and incompetent counsel. As a result, his claim that his waiver of

counsel was involuntary fails. So does his related argument that the

trial judge erred by failing to further investigate his motivation for

removing counsel and therefore discover the purportedly ineffective

representation.FN3

Djerf also argues that his waiver of counsel and

request for self-representation in February 1995 should

have been construed as a request to substitute counsel

and that the trial court erred by failing to do so. This

argument is not consistent with the record; Djerf several

times expressly stated his desire to represent himself,

despite strong discouragement from the judge and

counsel. At no point prior to or during the February 1995

hearing did Djerf intimate a desire for other counsel. In

view of this record, the Arizona Supreme Court’s denial of

this claim was not an unreasonable application of

Supreme Court precedent. See Djerf, 959 P.2d at 1283–

84.

FN3

Pet. App. 15a. The Ninth Circuit went on to determine that even assuming that

Djerf’s pretrial-ineffective-assistance-of-counsel claim was “substantial,” (which the

panel called “a stretch in light of the record and the service performed by counsel”),

Djerf “would have struggled to show that the purported deficiencies resulted in

sufficient prejudice to warrant overturning his four murder convictions.”

Id. at

880–81.

C. The Ninth Circuit correctly applied this Court’s precedent and did not

create a conflict.

This Court has explained that “[f]or purposes of § 2254(d)(1), an unreasonable

application of federal law is different from an incorrect, application of federal law.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotations omitted).