# Petition for Writ of Certiorari — Lewis v. Jeffers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 764

## Text

FF SGT) | supreme court, us.

4

NO. 89- JUL 49 «1989

IN THE SUPREME COURT OF THE UN
October Term, 198%

JAMES R. RICKETTS, Director, Arizona
Department of Corrections, and DONALD
WAWRZASZEK, Superintendent, Arizona State
Prison,
Petitioners,
-VvVs-

JIMMIE WAYNE JEFFERS,

Respondent,

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN
Attorney General of
the State of Arizona

JESSICA GIFFORD FUNKHOUSER
Chief Counsel
Criminal Division

*GERALD R. GRANT

Assistant Attorney General
Department of Law

1275 W. Washington
Phoenix, Arizona 85007
Telephone: (602)542-4686

Attorneys for PETITIONERS

*Counsel of Record

QUESTION PRESENTED
May a federal court set aside a state
court's finding of an aggravating
circumstance in a capital case without
applying a standard that requires some

deference to the state court's finding?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES
OPINION BELOW

STATEMENT OF JURISDICTION
CONSTITUTIONAL FROVISIONS INVOLVED
STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT
CONCLUSION

CERTIFICATION

APPENDIX A

APPENDIX B

lh ns

ae

TABLE OF CASES AND AUTHORITIES
Cases Page

Adamson v. Ricketts
865 F.2d 1011 (9th Cir. 1988) 12

Barclay v. Florida
463 U.S. 939 (1983) 11,13

Chaney v. Lewis
801 F.2d 1191 (9th Cir. 1986) 12

Godfrey v. Georgia
446 U.S. 420 (1980) 13,14

Jeffers v. Ricketts
627 F. Supp. 1334 (D. Ariz. 1986) 9

Jeffers v. Ricketts
832 F.2d 476 (9th Cir. 1987) 10,12,13

Magwood v. Smith
791 F.2d 1438 (llth Cir. 1986) 15,16

State v. Brookover
124 Ariz. 38
601 P.2d 1322 (1979) 19

State v. Ceja
126 Ariz. 35
612 P.2d 491 (1980) 20

State v. Graham
135 Ariz. 209
660 P.2d 460 (1983) 18

State v. Jeffers

135 Ariz. 404
661 P.2d 1105 (1983) 9,15,16

-1iii-

State v. Poland
144 Ariz. 388
698 P.2d 183 (1985) 22

State v. Smith
138 Ariz. 79
673 P.2d 17 (1983) 17

State v. Watson
120 Ariz. 441
586 P.2d 1253 (1978) 8,21

Woratzek v. Ricketts
820 F.2d 1450 (9th Cir. 1987) 16

Authoriti

28 U.S.C.

1254(1) 2
1291 2
2253 2
2241 es 2
2254 2
2254(d) 11,15,16

AUDA

United States Constitution
Eighth Amendment 3
Fourteenth Amendment 3

-iv-

OPINION BELOW

A three-member panel of the Ninth
Circuit upheld Jeffers’ convictions for
first degree murder and assault with a
deadly weapon and rejected his claim that
he was denied an impartial sentencing
tribunal. The panel also held that
Arizona's “especially heinous, cruel or
depraved” aggravating circumstance is not
void on its face. Two members of the
panel, however, concluded that the
Arizona courts erroneously applied this
aggravating circumstance to Jeffers’
conduct and therefore set aside his death

sentence. (Appendix A.)

—

STATEMENT OF JURISDICTION

On February 27, 1986, Jimmie Wayne
Jeffers appealed the order of the United
States District Court for the District of
Arizona denying his application for writ
of habeas corpus under 28 U.S.C. §§ 2241
and 2254. The Ninth Circuit had
jurisdiction to hear the appeal pursuant
to 28 U.S.C. §§ 1291 and 2253.

The Ninth Circuit filed its opinion on
November 9, 1987, and denied rehearing on
April 14, 1989. (Appendices A and B.)
This petition is timely filed within
90 days of entry of judgment by that
court. Petitioners invoke this Court's

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED
The pertinent portion of the Eighth

Amendment to the Constitution of the

United States:

{[NJor cruel and unusual
punishments inflicted.

The pertinent portion of the Fourteenth

Amendment to the Constitution:

{[N]Jor shall any state deprive any

person of life, liberty, or
property without due process of

law

;
_

STATEMENT OF FACTS
In August of 1976, Jeffers was being

held in the Pima County Jail on charges
of receiving stolen property. While
there, he received reports that his
girlfriend, Penelope Cheney, was
providing the police with information
about Jeffers and certain heroin
transactions. Jeffers wrote a note to
another jail inmate offering him money if
he would kill Cheney. The detention
officer who was supposed to deliver the
note seized it and read it.

Jeffers was released on bond on
October 8, 1976. Shortly afterwards, he
began living with Doris Van Der Veer in
the Linda Vista Motel in Tucson. Jeffers
had Van Der Veer deliver a note to
Cheney. In the note, Jeffers asked
Cheney to come back to him.

On October 20, 1976, Jeffers told Van

Der Veer that Cheney was coming over and

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asked her to leave during Cheney's
visit. As Van Der Veer was leaving the
motel room, Cheney was arriving and
Jeffers introduced the two women.
Jeffers and Cheney than went inside the
motel room.
Van Der Veer waited around the motel
grounds for about 2 hours. She then went
back to the motel room and knocked on the
door. Jeffers answered and told Van Der
Veer to come in. Jeffers had a gun in
his hand and Cheney, who appeared to be
cyanotic, was lying on her back on the
bed. Van Der Veer said she would leave,
but Jeffers pointed the gun at her, told
her to sit down and said that he needed
her help. He then injected what appeared
to be heroin into Cheney's hand and said,
"I have given her enough shit to kill a
horse and this bitch won't die."

At Jeffers’ direction, Van Der Veer, a

former nurse, checked Cheney's

Se ee

condition. Cheney's heartbeat was faint,
her breathing was labored, and a foamy
fluid (a sign of a drug overdose) was
coming out of her mouth. When Van Der
Veer asked Jeffers if he was going to
help Cheney, he responded, “No, I'm going
to kill her.”

Jeffers cursed at Cheney and then took
her belt off. Straddling her body,
Jeffers began choking her with the belt.
When Cheney continued to breathe, Jeffers
began choking her with his hands. Van
Der Veer told Jeffers to stop because
Cheney was going to die anyway, but he
responded, “No, I've seen her this way
before and she's come out of it."

Jeffers continued choking Cheney and then
told Van Der Veer to see if Cheney was
dead. Van Der Veer could not find a
pulse and told appellant that Cheney was
dead.

Jeffers then prepared another syringe
of heroin and forced Van Der Veer to
inject it into Cheney's groin and hand.
He also told her to get on top of Cheney
and choke her. Jeffers took photographs
of Van Der Veer as she complied with his
orders.

Apparently still not satisfied, Jeffers
again straddled Cheney and began beating
her with his hands, calling her a “bitch"
and a “dirty snitch.” As he delivered
the blows, Jeffers said, “This one is for
{naming several names]." He finally
dragged Cheney's body into the bathroom
and put it in the shower.

After 3 days in the shower, the body
began to smell. Jeffers and Van Der Veer
wrapped the body in garbage bags and put
it in a sleeping bag. That night they
loaded the body into the trunk of Van Der
Veer's car. They then drove to the

Sedona area and buried Cheney's body.

ee

The state later charged Jeffers with
the first-degree murder of Cheney and
with aggravated assault on Van Der Veer.
On February 9, 1978, a jury found Jeffers
guilty of both charges. The trial court
sentenced Jeffers to death for the murder
and to a.prison term of not less than
5 years nor more than 10 years for the
assault.

While Jeffers’ appeal was pending, the
Arizona Supreme Court ordered him
resentenced pursuant to State v. Watson,
120 Ariz. 441, 586 P.2d 1253 (1978). On
July 10, 1980, the trial court found two
aggravating circumstances (that Jeffers
created a grave risk of death to Van Der
Veer and that he committed the murder in
an especially heinous, cruel and depraved
manner) and again sentenced Jeffers to
death. The matter then returned to the

Arizona Supreme Court which affirmed the

convictions and sentences. State v.
Jeffers, 135 Ariz. 404, 661 P.2d 1105,
cert. denied, 464 U.S. 865 (1983). In
affirming the death sentence, the supreme
court overturned the trial court's “grave
risk of death” finding and its finding
that the murder was “especially cruel.”
It affirmed the finding that the murder
was “especially heinous and depraved.”

Jeffers then sought federal habeas
relief. On February 4, 1986, the
district court denied relief. Jeffers v.
Ricketts, 627 F. Supp. 1334 (D. Ariz.
1986). Jeffers appealed this decision to
the Ninth Circuit. On November 9, 1987,
a three-member panel cf the Ninth Circuit
rejected Jeffers' attacks on his
convictions. Two mnembers of the panel,
however, vacated Jeffers’ death sentence
on the ground that the “especially

heinous or depraved” aggravating

circumstance was incorrectly applied to
Jeffers. Jeffers v. Ricketts, 832 F.2d
476 (9th Cir. 1987). The state moved for
rehearing and suggested a rehearing
en banc. The Ninth Circuit denied both
requests on April 14, 1989. The state
then filed this petition for writ of
certiorari.
REASONS FOR GRANTING THE WRIT

I.

This case presents the question of the
proper standard federal courts should
apply in reviewing state court findings
of aggravating circumstances in capital
sentencing decisions. In general,

federal habeas review of state

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court convictions is limited and
deferential. For example, federal courts
must give state court factual findings a
presumption of correctness. See

28 U.S.C. § 2254(d). With respect to
findings of aggravating circumstances, a
plurality of this Court hrs stated that
its review is limited to determining
whether the findings are so unprincipled
or arbitrary as to somehow violate the
United States Constitution. Barclay v.
Florida, 463 U.S. 939, 947 (1985).

In this case, however, the Ninth
Circuit did not employ a deferential
review of the state court’s finding that
Jeffers committed this murder in an
especially heinous or depraved manner.
Instead, the Ninth Circuit substituted
its assessment of the facts for that of
the state court. This type of review is
inconsistent with principles of

federalism and comity.

elie

The Ninth Circuit began its analysis by
rejecting Jeffers’ claim that Arizona's
“especially heinous, cruel or depraved”
aggravating circumstance is
unconstitutionally vague on its face.
Relying nm an earlier decision in Chaney
v. Lewis, 801 F.2d 1191 (9th Cir. 1986),
cert. denied, 481 U.S. 1023 (1987), the
federal court concluded that Arizona's
court had narrowly construed the meaning
of this circumstance so that sentencing
discretion was sufficiently limited to
prevent arbitrary and capricious capital
sentencing decisions. Jeffers v.
Ricketts, 832 F.2d at 482.

The court

1. Seven members of the Ninth
Circuit's limited en banc court of ll
judges later reached the opposite
conclusion. See Adamson v. Ricketts, 865
F.2d 1011, 1031-39 (9th Cir. 1988). The
state’s petition for writ of certioreri
from the Adamson decision is presently
pending before this Court.

-})2-

went on to conclude, however, that this
narrow definition of the aggravating
7 circumstance could not be applied to
: Jeffers’ case “without losing its ability
to distinguish in a principled manner
between those it condemns to death and
those it does not.” 832 F.2d at 486.
While Jeffers’ murder of Penelope Cheney
_ “certainly qualifie[d]" as a “grizzly
affair,” the Ninth Circuit found it
_ insufficiently “shocking” to meet
Arizona's standard for especially heinous
or depraved murders. 832 F.2d at 484.
-In doing so, the Ninth Circuit paid no
deference to the state court finding. It
merely substituted its judgment for that
of the Arizona courts, which a federal
court should not do. See Barclay v.
Florida, 463 U.S. at 947.
The Ninth Circuit relied heavily on

Godfrey v. Georgia, 446 U.S. 420 (1980),

eiD=

;
‘
4
:

in setting aside Jeffers’ death
sentence. The Ninth Circuit has
misapplied the Godfrey decision.
Godfrey's death sentence was based on a
jury's finding of the “outrageously or
wantonly vile” aggravating circumstance.
The jury, however, received no guidance

from the trial court on the meaning of

the aggravating circumstance. In its

appellate review of the jury's finding,

the Georgia Supreme Court simply stated

that the finding was “factually

substantiated.” As Justice Marshall
po‘nted out in his concurring opinion, it
was the failure of the Georgia courts to
narrowly define and apply the aggravating
circumstance that required reversal of
Godfrey's sentence, not this Court's
conclusion that the facts did not support

the jury's finding. Godfrey v. Georgia,
446 U.S. at 435 n.1. In Jeffers’ case,

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$
4

the aggravating circumstance was
initially found by the trial judge, who
had the benefit of numerous Arizona
Supreme Court decisions that narrowly
interpreted the meaning of the
circumstance. On appeal, the Arizona
Supreme Court carefully reviewed the
trial judge’s finding and even
invalidated a portion of it. State v,
Jeffers, 135 Ariz. at 429-30, 661 P.2d at
1130-31. Under these circumstances,
Godfrey does not authorize the type of
review that the Ninth Circuit employed
here.

There is conflict within the circuits
over the proper standard of review for
state court findings of aggravating
Circumstances. The Eleventh Circuit has
suggested that these findings are

entitled to a presumption of correctness

under 28 U.S.C. § 2254(d). Magwood v.

~15-

Smith, 791 F.2d 1438, 1449 (llth Cir.
1986). In a decision preceding Jeffers,
the Ninth Circuit relied on
28 U.S.C. § 2254(d) in upholding an
aggravating circumstance. Woratzek v.
Ricketts, 820 F.2d 1450, 1459 (9th Cir.
1987). In Jeffers, however, the Ninth
Circuit seems to apply a de novo review
of the aggravating circumstance, paying
no deference to the state court finding.
This Court should accept certiorari to
set a standard for federal courts to
apply in reviewing state court findings
of aggravating circumstances. The issue

is an important one and the conflict in

the circuits should be resolved.
II.
The Ninth Circuit Incorrectly
Applied Arizona Law.
In concluding that the “especially

|
;
:
:
:
:

heinous or depraved” circumstance could

ele

not be applied to Jeffers’ conduct, the
Ninth Circuit reviewed a number of
Arizona cases that discussed this
circumstance. According to the Ninth
Circuit, these cases demonstrate that
Jeffers’ conduct was not especially
heinous or depraved. A review of the

cases, however, establishes just the

opposite:
l. State v. Smith, 138 Ariz. 79, 673 P.2d
17 (1983).

The only evidence that Smith murdered
in an especially heinous or depraved
manner was the uncorroborated testimony
of his accomplice that, after the

victim's body had been buried, Smith had

requested the playing of a tape of the
) song, “We Are the Champions.” Evidence
| also showed that Smith later attempted
Suicide, partly out of remorse over the

murder. The Arizona Supreme Court

concluded that this evidence did not
establish beyond a reasonable doubt that
Smith had a heinous and depraved attitude.

In contrast, the evidence establishing
Jeffers’ heinous and depraved attitude
dealt with his conduct during or
immediately after the killing. The
evidence also did not come from an
accomplice, as did the evidence in
Smith. Doris Van Der Veer was the victim
of the assault with a deadly weapon
charge in this case, and Jeffers forced
her to become involved in Cheney's
murder. Finally, Jeffers, unlike Smith,
expressed no remorse over the murder.
2. State v. Graham, 135 Ariz. 209, 660

P.2d 460 (1983).

Graham, who suffered from organic
brain damage and was extremely immature
and easily influenced by others, killed a

man by shooting him twice. After the

-18-

murder, Graham smiled while telling
friends that the victim “squealed like a
rabbit” when he was shot. The Arizona
Supreme Court concluded that Graham's
statement about the killing was more
likely attributable to his immaturity,
nervousness and need to impress his peers
than to a hardened attitude towards the
death of another.

Jeffers was not immature or easily
influenced by others and did not suffer
from organic brain damage. His comments
were made while straddling and repeatedly
striking his dying victim. His words and
conduct, unlike Graham's, showed an
especially heinous or depraved state of
mind.

3. State v. Brookover, 124 Ariz. 38, 601

P.2d 1322 (1979).

Brookover, as part of a drug ripoff,

shot his victim in the back. As the

-~19-

victim lay on the floor moaning,
Brookover said, “Don't worry * * * it
will be over soon" and shot him again in
the back. The Arizona Supreme Court
concluded that the murder was not
especially heinous or depraved.

Penelope Cheney, unlike Brookover's
victim, did not suffer a relatively quick
death. Jeffers, unlike Brookover,
climbed atop his victim and debased her
by striking and cursing her. Jeffers
killed his victim because she had
“snitched” on him and his words and
conduct show that he relished the killing.
4. State v. Ceja, 126 Ariz. 35, 612 P.2d

491 (1980).

Ceja murdered two people in order to
steal a large amount of marijuana from
them. He shot the first victim seven
times, four times in the head at close

range. He shot the second victim four

=

times, twice at extremely close range,
and then kicked him in the face. The
Arizona Supreme Court concluded that the
murders were especially heinous and
depraved.

If anything, Jeffers’ conduct was more
reprehensible than Ceja's. Jeffers
overdosed his victim with heroin,
strangled her with a belt and with his
hands, and then climbed on top of her to
beat and curse her. Jeffers was
certainly as determired to kill as Ceja,
and surpassed Ceja in personally debasing
his victim.

5. State v. Watson, 120 Ariz. 441, 586

P.2d 1253 (1978).

Watson and Reid burglarized a home.
While Watson was upstairs, the homeowner
began shooting at Reid. Watson came back
downstairs and shot the victim in the

back four times, the last time while the

Sie

victim was face down on the floor. The
Arizona Supreme Court concluded that this
killing was not especially heinous or
depraved.

Penelope Cheney, unlike Watson's
victim, did not initiate violence that
led to her death. Watson, unlike
Jeffers, did not debase his victim by
striking and cursing him. Watson, unlike
Jeffers, had no firm intent to kill
anyone and used deadly force only after
the victim did.

6. State v. Poland, 144 Ariz. 388, 698

P.2d 183 (1985).

The Poland brothers were convicted of
the murder of two armored car guards.
There was no direct evidence regarding
the circumstances surrounding the
deaths. It was this lack of evidence
that led the Arizona Supreme Court to

conclude that the state had failed to

29>

prove that the murders were heinous or
depraved.

There is no lack of evidence regarding
the circumstances of Penelope Cheney's
death and Jeffers’ role in it. His words
and actions plainly establish the
heinousness and depravity of this murder.

Thus, even under the standard of
review the Ninth Circuit employed here,
the decision to set aside Jeffers’ death
sentence is erroneous. The Ninth Circuit
reached its result through a
misinterpretation of Arizona case law.

CONCLUSION
This case merits this Court's
attention. Without a standard for
federal court review of state court
findings of aggravating circumstances,
conflicts between the circuits will
continue. The Ninth Circuit set aside

Jeffers’ death sentence based upon

o23- The murder was found to have been

especially cruel however, and the death

sentence was accordingly affirmed. Id.

R.D. Smith, 138 Ariz. at 85, 673 P.2d at
23.

-A-35-

his companion that the victim had “squealed

like a rabbit” when shot. See also State

v. Brookover, 124 Ariz. 38, 601 P.2d 1322
(1979) (murder not committed in heinous or
depraved manner when a defendant shot
victim once in back, told groaning victim
"Don't worry * * * it will be over soon"
and shot him again, placed victim's body in
victim's van and abandoned van at airport).
Of all of the components of heinousness

and depravity set forth by the Arizona

Supreme Court in Gretzler, none is more

subjective than the relishing of the crime
by the defendant. When remarks made by the
defendant at the time of the crime are used

to establish especial heinousness and

depravity, the distinction between ordinary
and especial depravity must be clear in

order to avoid arbitrary application of the
standard. We conclude that the line is not

clear in this case, and that Jeffers’

-A-36-

remarks provide “no principled way to
distinguish this case, in which the death
penalty was imposed, from the many cases

in which it was not.” Godfrey v.

Georgia, 446 U.S. 420, 433 (1980)
(plurality opinion).*

The other factor that the Arizona
Supreme Court relied upon to support a
finding of heinousness or depravity was
the infliction of gratuitous violence
upon the victim after death. Jeffers
climbed on top of the dead victim and hit
her several times in the face, while
making the remarks referred to above.

Here again, the level of objectionable

6

In rejecting Jeffers’ petition, the
district court referred to the fact that
Jeffers had forced Van der Veer to choke
the dead victim while he took pictures.
This fact was not relied upon as evidence
of depravity by either the sentencing
court or the Arizona Supreme Court. Van
der Veer testified that Jeffers told her
the reason he was taking the pictures was
to have proof that Van der Veer had been
an accomplice.

-A-37-

conduct was far below that in the case

the Court principally relied on, State v.

Ceja, 126 Ariz. 35, 612 P.2d 491 (1980),
and was wholly unaccompanied by
mutilation in any meaningful sense of
that term. We are unable to find a
principled means of distinguishing the
depravity of Jeffers’ conduct from that

in State v. Watson, 120 Ariz. 441, 586

P.2d 1253 (1978), cert. denied, 440 U.S.

924 (1979) (robber in shootout shoots
victim in back four times, the last time
while victim is face down on floor; held
not heinous or depraved), or State v.
Poland, 144 Ariz. 388, 698 P.2d 183
(1985), aff'd, 106 S.Ct. 1749 (1986)
(evidence that victims, who may have been
unconscious, were placed in weighted
sacks and submerged in lake not
sufficient to show heinousness or
depravity). Nor, at the level of

violence displayed by Jeffers, are we

-A-38-

able to attach controlling significance
to the fact that the victim had passed
from unconsciousness to death by the time
Jeffers inflicted the blows.” He
displayed no state of mind that signifies
a level of depravity greater than those
found not to meet the definition of
“especially heinous .. . or depraved" in

the cases last citea.®

7 It is not clear that the Arizona
Supreme Court placed importance on the
fact that the victim was dead rather than
unconscious at the time of the blows. In
discussing the much greater level of
gratuitous violence in State v., Ceja, the
Court referred to repeated violence
“although the-victim was already
unconscious or dead.” Jeffers, 135 Ariz.
at 430, 661 P.2d at 1131 (emphasis
added). But see State v. Richmond, 136
Ariz. 312, 666 P.2d 57, cert. denied, 464
U.S. 986 (1983), in which a majority of
the Court (two concurring and one
dissenting Justices) held the view that
twice driving over a victim would not
demonstrate depravity if the perpetrator
had no way of knowing that the first run
was sufficient to kill. Id. at 323, 324,
666 P.2d at 68, 69.

8 The Arizona Supreme Court found it

unnecessary to rule on whether Jeffers’
disposing of the body in a shallow grave

-A-39-

Because we conclude that the standard
of heinousness and depravity delineated
in prior Arizona cases cannot be applied
in a principled manner to Jeffers, his
death sentence must be struck down as

arbitrary. See Godfrey, 446 U.S.

432-33. In so ruling, we are mindful of
the recent decision of the United States
Supreme Court in McCleskey v. Kemp, 107
S.Ct. 1756 (1987). There the Court
stated that “absent a showing that the
Georgia capital punishment system
operates in an arbitrary and capricious
manner, McCleskey cannot prove a

constitutional violation by demonstrating

three days after the murder constituted
further evidence of depravity. We fail
to see how this action of Jeffers can be
differentiated from placing a victim
alive in a weighted sack and sinking the
sack into a lake, see Poland, 144 Ariz.
389, 698 P.2d 183 (1985), aff'd, 106
S.Ct. 1749 (1986), or abandoning the
victim's body in the victim's own van,
see Brookover, 124 Ariz. 38, 601 P.2d
1322 (1979), both of which were held not
to demonstrate depravity.

-~A-40-

that other defendants who may be
Similarly situated did not receive the
death penalty.” Id. at 1774. In further
explanation, the Court quoted Gregg v.
Georgia, 428 U.S. at 199, to the effect
that “[{njJothing in any of our cases
suggests that the decision to afford an
individual defendant mercy violates the
Constitution.” Id.

Our ruling is not contrary to these
principles. No acts of prosecutorial
@Giscretion or judicial clemency are
involved in our comparisons. The Arizona
cases upon which we rely are those
establishing the minimum requirements for
the aggravating factor of especial
heinousness or depravity. While the
Arizona Supreme Court is entitled to
reweigh aggravating and mitigating
factors in reviewing a capital case,

e.g., State v. Johnson, 147 Ariz. 395,

400, 710 P.2d 1050, 1055 (1985), that

-A-41-

de novo assessment is not the purport of
its rulings holding that particular
conduct falls outside the standard of
heinousness or depravity. Whether the
conduct qualifies as heinous or depraved
is a threshold issue, and the Arizona
Supreme Court's rulings on that issue are
part of the process of defining the

standard.” See Poland v. Arizona, 106

If the Arizona Supreme Court's

rulings On aggravation were simple

de novo applications of the bare phrases
“heinous” and “depraved,” rather than
being part of a process of narrowing
construction, the sentencing system would
probably be invalid for lack of standards
offering sufficient guidance in
determining who should be sentenced to
death. See Gregg, 428 U.S. at 198,
260-03; Chaney, 801 F.2d at 1195. We
consequently are reviewing the Arizona
Supreme Court's definition and
application of a standard. For that
reason, we disagree with the views of the
dissenting opinion that an examination of
comparable Arizona cases should not be
necessary, and that our review is
confined to determining whether a
rational factfinder could have determined
Jeffers’ crime to have been heinous or
depraved.

-A-42-

S.Ct. 1749, 1755 (1986) ("aggravating
circumstances are not separate penalties
or offenses but are ‘standards to guide
the making of [the] choice’ between the
. alternative verdicts of death and life

imprisonment.”) (quoting Bullington v.

Missouri, 451 U.S. 430, 438 (1981)). If

the conduct is not heinous or depraved
(and does not meet any of the other
standards of aggravation), there is no
opportunity for a discretionary act of
mercy; state law then precludes the death
penalty. Ariz. Rev. Stat. Ann.

§ 13-703(E)(1982). To apply the standard
of especial heinousness and depravity to
Jeffers case when the facts do not permit
it is arbitrary or capricious, and is
therefore an unconstitutional application

of the standard. See Godfrey 446 U.S. at

428; Gretzler, 135 Ariz. at 50, 659 P.2d
at 9 (constitutional error may occur by

court straying in an individual case from

-A-43-

an otherwise constitutionally narrow
construction).'°

We emphasize, therefore, the nature of
our decision. We are not saying that
Jeffers’ conduct could not be punished by
death under some different system of
selecting penalties. Our ruling is
Simpiy that Arizona's existing standard

of aggravation for murder committed in an

"

Because we conclude that the
application of the Arizona standard to
Jeffers would violate the Eighth and
Fourteenth Amendments, within the meaning
of Godfrey and Gretzler, the writ may
issue under 28 U.S.C. § 2254(d)(7)
against Jeffers’ death sentence.

Jeffers’ attack, and our analysis, is on
the structure of the standard as applied
to Jeffers. See Chaney, 801 F.2d at 1194
(“since Chaney’s claim raises no factual
issues, his challenge to the
constitutionality of the Arizona death
penalty statute as applied is a purely
legal question”). We are not dealing
here with a simple finding of fact of the
Arizona Court, which binds us if fairly
supported in the record. See id., at

§ 2254(d)(8); Woratzeck v. Ricketts,

No. 85-2367, slip op. at 17-18 (9th Cir.
June 25, 1987) (amended opinion).

-A-44-

“especially heimous ..- + OF depraved
manner,” as that standard has been
defined and applied by the Supreme Court
of Arizona, cannot be extended to
Jeffers’ case without losing its ability
to distinguish in 4 principled manner
between those it condemns to death and
those it does not.

The writ must therefore issue to vacate
Jeffers’ sentence on his murder
conviction, subject to the state's
resentencing him consistently with the
Constitution within a reasonable period
of time. Our ruling makes it unnecessary
for us to reach additional questions
Jeffers raises concerning his death

penalty.’ '

Among other issues, Jeffers
contends that he is entitled to jury
determinations of aggravating and
mitigating factors. He is not. See
Spaziano v. Florida, 468 U.S. 447, 460
(1984) (trial judge may override jury's
recommendation of life imprisonment and
sentence defendant to death).

-A-45-

CONCLUSION

The judgment of the district court is
affirmed insofar as it upholds Jeffers’
convictions of murder and aggravated
assault, and his sentence on the assault
conviction. The judgment is reversed
insofar as it upholds Jeffers’ death
sentence. The case is remanded to the
district court with instructions to issue
a writ with regard to Jeffers’ death
sentence, subject to the State's
resentencing him within a reasonable
period of time.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

-A-46-

Cc

:

Counsel

Donald S. Klein Esq.,
Frank P. Leto Esq.,

Tucson, Arizona

‘ounsel for Petitioner-Appeiiant

A-4?

WILSON, District Judge (Dissenting in
part and concurring in part):

The majority concludes that the Arizona
Supreme Court, in affirming petitioner's
death sentence, adopted such a b-:oad
construction of Arizona Revised Statute
§ 13-703(F)(6) as to violate the Eighth
and Fourteenth Amendments to the United
States Constitution. Because I believe
the majority is doing little more than
second-guessing the Arizona Supreme
Court’s interpretation of facts that
quite reasonably fit within the statutory
definition of aggravating circumstances,
I dissent.’

STANDARD OF REVIEW

Generally, a federal court in a habeas
corpus proceeding must accord a
presumption of correctness to a state

I concur with the majority opinion
to the extent it affirms petitioner's
conviction.

-A-48-

court's factual findings.

28 U.S.C. § 2254(d). This statutory
presumption, however, does not apply to
questions of law or to mixed questions of

law and fact. Sumner v. Mata, 455 U.S.

591, 597 1306 (1982); Fendler v.
Goldsmith, 728 F.2d 1181, 1191 n. 21 (9th
Cir. 1983). Rather, the federal court
reviews such non-factual questions
de novo. Chaney v. Lewis, 801 F.2d 1191,
1194 (9th Cir. 1986), cert. denied, 107
S. Ct. 1911 (1987); Fendler, 728 F.2d at
L191 n. 21 (federal courts are “obligated
to conduct a complete and independent
review of all purely legal or mixed fact
and law questions raised by [a state
prisoner's] habeas corpus petition”).
Some federal courts in habeas
proceedings have applied the presumption
of correctness under § 2254(d) to state
court findings of aggravating

circumstances. See Woratzeck v._

-A-49-

Ricketts, 820 F.2d 1450, 1459 (9th Cir.
1987) (finding of “cruel, heinous, or
depraved” aggravating circumstance by
Arizona Supreme Court presumed correct

under § 2254(d)); Magwood v. Smith, 791

F.2d 1438, 1449 (llth Cir. 1986)
(existence of aggravating or mitigating
circumstance a question of fact subject
to review under § 2254(d)). These
courts, .owever, appear to have applied
the presumption without considering
whether the finding of an aggravating
circumstance is a question of fact or a
mixed question of fact and law.

A state court conclusion that the
defendant killed in a “heinous, cruel, or
depraved” manner appears to be a mixed
question of fact and law. Chaney, 801
F.2d at 1194. The court must first
determine that the defendant engaged in
certain conduct (e.g., beat the victim

after she was dead), and then, by

-A-50-

reference to the decisions of the state
supreme court, conclude that such conduct
meaningfully distinguishes the defendant
from the “usual or norm of first degree
murders.” As a mixed question of fact
and law, the state court finding is not
entitled to a presumption of
correctness.’

On the other hand, the state court's
conclusion that the defendant killed in a
“heinous, cruel or depraved” manner

should not be subject to de novo review.

‘Even if the state court finding of
aggravating circumstances is “essentially
factual” so that it would be reviewed
under the “clearly erroneous” standard if
on direct appeal, see United States v.
McConney, 728 F.2d 1195, 1199-1202 (9th
Cir.) (en banc), cert. denied, 105 S. Ct.
101 (1984), it is not a [sic] an “issue
of fact” subject to the presumption of
correctness under § 2254(d). The
presumption only applies to “basic,
primary or historical! facts: ‘facts (in
the sense ot recital of external events
and the credibility of their
narrators).*"* Fendler, 728 F.2d at 1191
n. 21 (quoting Townsend v. Sain, 372 U.S.
293, 309 n. 6 (1963)).

-A-51-

The United States Supreme Court has
stated that its review of state court
findings of aggravating circumstances is
“limited to the question whether they are
so unprincipled or arbitrary as to
somehow violate the United States
Constitution.” Barclay v. Florida, 463
U.S. 939, 947, 103 S. Ct 3418, 3423
(1983) (plurality). The Ninth Circuit
has interpreted this language to support
deferential habeas corpus review of
aggravating circumstances. Adamson Vv.
Ricketts, 758 F.2d 441, 450 (9th Cir.
1985), withdrawn, 764 F.2d 1343, reh’g en
banc, 789 F.2d 722, cert. granted, 107 S.
Ct. 62 (1987).

Deferential review is justified by the
presence of ‘procedural protections
intended to ensure that the death penaity
will be imposed in a consistent, rational

manner. Barclay, 463 U.S. at 960,

(Stevens, concurring). Where the state's

A-5S2-

sentencing procedures “focus discretion
on ‘the particularized nature of the
crime and the particularized character of
the defendant,’ we lawfully may presume
that (defendant's] death sentence was not
‘wantonly and freakishly’ imposeu, and
thus that the sentence is not
disproportionate within any recognized
meaning under the Eighth Amendment.”
McClesaxy v. Kemp, 55 U.S.L.W. 4537, 4545

(U.S. Apr. 22, 1987) (emphasis added). ’

‘The Eleventh Circuit until recently
held that these procedural protections
not only raised a presumption that the
sentence was imposed consistent with the
Constitution, but foreclosed federal
review:

{wihere in a capital punishment
case the state courts have acted
through a properly drawn statute
with appropriate standards to
guide discretion, federal courts
will not undertake a case-by-case
comparison of the facts in a given
case with the decisions of the
etate supreme court. This rule
stands even though were we to
retry the aggravating and
mitigating circumstances if these

-A-53-

The Arizona capital sentencing process
contains the appropriate checks on
arbitrariness. The procedural
protections include bifurcation of the
penalty phase, statutorily-defined
aggravating and mitigating circumstances

which must be proved beyond a reasonable

cases, ‘we may at times reach
results different from those
reached in the Florida state
courts.”

Ford v, Strickland, 696 F.2d 804, 8619
(lith Cir.) (en banc) cert. denied, 464
U.S. 865 (1983) (quoting Spinkellink v.
Wainwright. 578 F.2d 582, 604-05 (5th
Cir. 1978), cert. denied 440 U.S. 976
(1979)) (citations omitted).

The Eleventh Circuit has since
abandoned its position of total deference
to state court findings of aggravating
and mitigating circumstances. in
Magwood, 791 F.2d at 1449, the court held
that a federal habeas corpus court is not
precluded from reviewing state
fact-findings that determine the
existence of a particular aggravating or
mitigating circumstance. The court
additic*ally held that such findings are
issues of fact, and are presumed to be
correct under § 2254(d). Id.

doubt, written findings by the sentencing
body, and automatic review by the state
supreme court. See Proffitt v. Florida,
428 U.S. 242, 96 S. Ct. 2960 (1976). On
review, the Arizona Supreme compares
“each death sentence with the sentences
imposed on similarly situated defendants
to ensure that the sentence of death in a
particular case }% not
disproportionate.” Gregg v. Georgia, 428
".S. 153, 198 (1976); State v. Richmond,
114 Ariz. 186, 196, 560 p.2d 41, 5l,
cert. denied, 433 1s. 915 (1976).
Moreover, the Arizona Supreme Court has
demonstrated an ability to rationally
apply the statutory aggravating and
mitigating circumstances. See State Vv.
Gretzler, 135 Ariz. 42, 52-53, 659 P.2d
Ll, ll-12, cert. denied, 461 U.S. 971
(1983) and cases cited therein.

Where a state's capital sentencing

process 1S procedurally sound and

-A-55-

responsibly managed, I believe the
correct standard of review is “whether
‘any rational factfinder’' could have
found the existence of aggravating

circumstance([s]." Godfrey v. Georgia,

446 U.S. 420 (1980) (plurality) (White,

J. dissenting) (quoting Jackson v.

Virginia, 443 U.S. 307, 313 (1979)).°

CONSTITUTIONAL QUESTION

Despite the open-ended language
contained in Ariz. Rev. Stat.
§ 13-703(F)(6), providing the penalty of
death for those who commit murder in a
"heinous, cruel, or depraved” manner, the
Arizona death penalty statute passes
constitutional muster by virtue of the

narrowing constructions available through

“The majority does not identify the
Standard of review it applies in this
habeas corpus proceeding, but it appears
to be the “complete and independent”
standard of review provided for in
Fendler, 728 F.2d at 1191 n. 21.

-A-56-

the Arizona Supreme Court. Chaney v.

Lewis, 801 F.2d at 1195. The majority,
however, holds that the Arizona Supreme
Court's application of the death penalty
statute to petitioner violates the
constitution.

A. Analysis Under the “Rational

Factfinder” Standard of Review
The Supreme Court of Arizona has set
forth in considerable detail those
factors which support a finding that a
murder was committed in an “especially
heinous, cruel, or depraved” manner. See
Gretzler, 135 Ariz. at 51-53, 659 P.2d at
10-12 In particular, the Arizona
Supreme Court has identified the
defendant's relishing of the killing and
the infliction of gratuitous violence as
two bases for finding a heinous or
depraved attitude. Id. Given the

parameters identified by the Arizona

Supreme Court, I believe a4 “rational

-A-57-

factfinder” could have found the existence
of aggravating circumstance § 13-703(F)(6).
The Arizona Supreme Court found that
Jeffers had relished the killing:
[Wlhile Jeffers was beating the
[dead] victim he called her “a
bitch and a dirty snitch” and with
each striking blow said, “This one
is for so and so.” [naming
several names}. This evidences
the relish with which appellant
committed the murder. .. . (Wle
find that the remarks made by
appellant, while at the same time
beating his victim, establish that
the offense was committed in an
especially heinous and depraved
manner.”
State v. Jeffers, 135 Ariz. 404, 430, 661

P.2d 1105, L131, cert. denied, 464 U.S. #45

‘The Arizona Supreme Court's findings
of historical facts, such as what Jeffers

-A-58-

(1983). This is a rational finding based
on petitioner's words and actions. |
The Supreme Court of Arizona additionally
~~found that Jeffers had inflicted
“gratuitous violence.“ Id. The record
shows that Jeffers “climbed on top of the
dead victim and hit her in the face several
times which eventually resulted in
additional wounds and bleeding.” Id.
Based on these facts, the Arizona Supreme
Court could rationally find that the
petitioner inflicted gratuitous violence:
“In short, it was this additional violence,
over and above that which was necessary to
carry out the defendant's criminal intent,
that in effect distinguishes the

said and did at the time of the killing,
are presumed to be correct under

18 U.S.C. § 2254(d). The majority
questions the strength of Van der Veer's
testimony, see ante at 18 n. 4, but in no
way shows that the state court findings
are not “fairly supported by the

record.” 18 U.S.C. § 2254(d).

-A-59-

[defendant's murder] from the ‘usual or
the norm’ of first degree murders.'‘”
State v. Ceja, 115 Ariz. 413, 417, 565
P.2d 1274, 1278 (1977). In light of the
factual grounds for finding that the
petitioner “relished” the act of killing
and inflicted “gratuitous violence,” the
Arizona Supreme Court could rationally
conclude that Jeffers’ committed murder
in an “especially heinous, cruel, or

depraved manner.”

B. Analysis Under the De Novo or
“Independent” Standard of Review

The majority acknowledges that the
Arizona Supreme Court has adopted
standards which narrow the class of first
degree murderers who may be put to death,
but concludes that a finding of
aggravating circumstances under
§ 13-703(F)(6 “seems to call for conduct
Or attitudes more shocking than those

exhibited by Jeffers." Ante at 17. In

-A-60-

holding that Jeffers’ conduct is not
sufficiently objectionable, this Court
simply substitutes its judgment for the
judgment of the Arizona Supreme Court.
Nothing in the Eighth or Fourteenth
Amendments permits this result.

The majority's reliance on Godfrey v.
Georgia, 446 U.S. 420 (1980) (plurality)
is misplaced. There the Georgia Supreme
Court affirmed a death sentence without
articulating how the defendant's actions
differed from the norm of first degree
murders. The United States Supreme Court
reversed the death sentence, finding that
it had been imposed in a “standardiess
and unchanneled” fashion. Id. at 429.

As Justice Marshall wrote, it was not a
question of whether the facts supported
the jury's finding:

As in any case raising issues of

vagueness, the question is whether

the court below has adopted so

-A-61-

ambiguous a construction of the
relevant provision that the
universe of cases it comprehends
is impermissibly large, thus
leaving undue discretion to the
decisionmaker and creating
intolerable dangers of
arbitrariness and caprice.”
446 U.S. at 420 n. 1 (concurring opinion).
The Arizona Supreme Court, unlike its
counterpart in Godfrey, “has gone to
great lengths to precisely define and
correctly apply Ariz.Rev.Stat.

§ 13-703(F)(6)." Adamson v. Ricketts,

758 F.2d at 451. In finding that Jeffers
committed his crime in a heinous or
depraved manner, the Arizona Supreme
Court identified the specific conduct
which, in its judgment, set this murder
apart from other first degree murder:

(1) He climbed on to his dead victim;

(2) repeatedly struck her in the face so

-~A-62-

as to draw blood; (3) called her a [sic]
“as bitch and a dirty snitch,” and,
(4) with each blow, said, “This one is

for so and so." See State v. Jeffers,

135 Ariz. 404, 430, 6€1 P.2d 1105, 1131,
cert. denied, 464 U.S. 865 (1983). The
Arizona Supreme Court further explained
how petitioner's conduct satisfied
§ 13-703(F)(6) under existing Arizona
precedent. By repeatedly striking his
victim in the face after she was dead,
Jeffers inflicted “gratuitous violence,”
and by the remarks he made while
inflicting this additional violence,
Jeffers showed he “relished” the
killing. Id.

The majority attacks this finding not
on the basis that it is “standardless and

unchanneled" under Godfrey, but that it

does not comport with other decisions of
the Arizona Supreme Court. The

majority's conclusion that § 13-703(F) (6)

-A-63-

requires “conduct or attitudes more
shocking than those exhibited by
Jeffers," ante at 17, represents one
possible reading of the Arizona death
penalty statute and Arizona precedent,
but the majority fails to show that this
reading is constitutionally required.

The Arizona Supreme Court may
constitutionally impose the death
sentence on petitioner provided the court
consistently applies the death penalty
Statute to other defendants in Jeffers’
position. The fact that Jeffers’ conduct
may lie close to the line separating
Ordinary first degree murders from
"heinous, cruel, or depraved” killings --
and could be interpreted to fall below
the threshold for imposing the death
penalty under current Arizona case law --
does not give rise-to a constitutional

violation absent inconsistent

-~A-64-

determinations by the Arizona Supreme
ceusct .*
[n an effort to show that the Arizona

Supreme Court's decision in Jeffers was

so unprincipled that it violated the
constitution, the majority undertakes a
selective review of other Arizona death
penalty cases. The majority emphasizes
those cases in which the defendant's
conduct seemingly was more objectionable

than Jeffers’ but the Arizona Supreme

“The majority in effect challenges
the constitutionality of any capital
sentencing system which recognizes an
aggravating circumstance as open-ended as
A.R.S. 13-703(F)(6). Inevitably, courts
must draw difficult lines between
ordinary first degree murder and those
murder. which are committed in an
"especially heinous, cruel, or depraved"
manner. But the constitution is
Satisfied where state courts draw lines
based on “rational criteria that narrow
the decisionmaker'’s judgment as to
whether the circumstances of a particular
defendant's case meet the threshold
{below which the death penalty cannot be
imposedj." McClesky v. Kemp, 55 U.S.L.W.
at 4544 (emphasis added).

-A-65-

Court did not find the defendant killed
in a “heinous, cruel, Or depraved”
manner.’ None of the cited cases,
however, involved conduct similar to
Jeffers’, and little can be distilled
from broad comparisons.

In State v. R.D. Smith, 138 Ariz. 79,

673 P.2d 17 (1983), the Arizona Supreme
Court found that the only evidence of a
heinous or depraved mind was the

uncorroborated testimony of a

———$_$_$_$—— —$_ —— ———

‘These cases are relevant benchmarks
to the extent that similar or worse
conduct did not result in a finding of
aggravating circumstances. They help to
answer a threshold question: What is the
minimum level of objectionable conduct
required for a finding of aggravating
circumstances under A.R.S.
§ 13-703(F)(6)? The decision in Jeffers
is not undermined by those cases in which
the Arizona Supreme Court found
aggravating circumstances based on
conduct more objectionable than
Jeffers’. Such cases say very little
about whether Jeffers’ conduct meets the
threshold below which the death penalty
canrot be imposed.

codefendant that Smith, the defendant,
had requested the tape “We Are The
Champions” be played at some stage
during the kidnap-rape-murder. The
court found this to be insufficient
evidence of heinousness or depravity,
particularly in light of the defendant's
suicide attempt, which was motivated in
part by remorse. Id. at 86, 673 P.2d at

24. The finding in R.D. Smith is not

inconsistent with the Arizona Supreme
Court's finding that Jeffers “relished”
the killing. Unlike the defendant in
R.D. Smith, Jeffers made statements that

directly captured the gusto with which

he killed, at the time he killed.’

“Tt is not clear that the defendant in
R.D.Smith requested the tape be played
while killing the victim, as opposed to
raping her. Under Arizona case law, the
defendant must “relish the murder” for
§ 13-703(F)(6) to be satisfied. See
Gretzler, 135 Ariz. 52, 659 P.2d at 10.

-A-67-

In State v. Graham, 135 Ariz. 209, 660

P.2d 460 (1983), the court found
insufficient evidence of a heinous or
depraved attitude where the defendant, who
was organically brain-damaged and highly
impressionable, smiled while recounting
that the victim “squealed like a rabbit”
when shot. The court concluded that
“(wlhatever statements Graham may have made
about the killing are more likely
attributable to his immaturity, nervousness
and need to impress his peers than to a
hardened attitude towards the death of
another.” Id. at 212, 660 P.2d at 463. No
such charitable interpretation can be given
to the statements of Jeffers, made while
repeatedly striking his dead victim in the
face.

In State v. Brookover, 124 Ariz. 38, 601

P.2d 1322 (1979), the Arizona Supreme Court
found that the defendant had not committed

murder in an especially “heinous, cruel, or

-A-68-

depraved” manner where he shot the victim
in the back, told the groaning victim
“Don't worry . . . it will be over soon”
and shot the victim again. The court found
that the defendant's words and actions, all
in furtherance of a deliberate plan to
“rip-off” a drug dealer and, in the
process, impress other narcotics
traffickers, failed to adequately
distinguish the crime from other first

degree murders. Id. at/ 40-41, 601 P.2d at

1324-25. Again, nothing in Brookover shows

the Arizona Supreme Court inconsistently
applied the death penalty statute to
petitioner. Jeffers did not commit
“cold and deliberate homicide” as in
Brookover; rather, his words and actions
show that he “relished” taking the life
of a “dirty snitch."

The majority cites two additional
cases to show the Arizona Supreme Court

inconsistently found Jeffers to have

-A-69-

inflicted gratuitous violence. Both
cases are readily distinguishable.

In State v. Watson, 120 Ariz. 441, 586

P.2d 1253 (1978), cert. denied, 440 U.S.

924 (1979), a robbery victim engaged the
defendants in a shoot-out, and was shot
four times in the back, the last time
while face down on the floor. In
finding that the killing was not
committed in an especially “heinous,
cruel, or depraved” manner, the Arizona
Supreme Court looked to the victim's
role in bringing about his own death.
Id. at / 447-48, 586 P.2d at 1260. No
such consideration is present here.

Likewise, State v. Poland, 144 Ariz.

388, 698 P.2d 183 (1985), aff'd, 106
S. Ct. 1749 (1986), fails to be
instructive. There the court's
inability to ascertain the exact
circumstances of the victim's deaths

precluded any finding that the murders

-A-70-

were heinous or depraved. Id. at 405,
698 P.2d at 200. Nothing in Poland
suggests that Jeffers’ words and
actions, established firmly on the
record, fail to show depravity or
heinousness.
CONCLUSION

The foregoing case-by-case analysis
should be unnecessary. AS 4a federal
habeas corpus court, we offer a limited
forum for petitioner's collateral attack
on his state court conviction and
sentence. Our duty is to ensure that
the petitioner is not being held in
violation of the constitution. Our role
does not extend to re-writing the law of
Arizona to comport with our own
interpretation of Arizona precedent.
Where state courts are responsibly and
consistently interpreting state death
penalty statutes which have been held to

be constitutional, our review should be

-A-71-

limited to whether “any rational
factfinder” could have found the

existence of aggravating circumstances.

0042D

-A-72-

ORDER

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

[Filed April 14, 1989]

JIMMIE WAYNE JEFFERS,

CA No. 86-1840
DC No. CV-85-945-ACM

Petitioner-Appellant,
-Vs-

)
)
)
)
)
)
JAMES R. RICKETTS, )
Director, Arizona ) ORDER
Department of )
Corrections; )
DONALD WAWRZASZEK, )
Superintendent, Arizona )
State Prison, )
)
)

Respondents-Appellees.

BEFORE: PREGERSON AND CANBY, CIRCUIT
JUDGES AND WILSON, DISTRICT

JUDGE*

A majority of the panel as constituted

in the above case has voted to deny the

* The Honorable Stephen V. Wilson,
United States District Judge for the
Central District of California, sitting
by designation.

ofinle

petition for rehearing and to reject the
suggestion for a rehearing en banc.

The full court has been advised of the
suggestion for an en banc rehearing, and
no judge of the court has requested a
vote on the suggestion for rehearing
en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing

en banc is rejected.

0042D jd

=—j-fo

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0659%3A02. Public record. Not legal advice.