John Henry Knapp, Arizona State Prison Inmate No. 33659, and All Inmates of the Arizona State Prison Similarly Situated v. Harold Cardwell

Appellants are a class of Arizona prisoners sentenced to death. They attack their death sentences on the ground that the Arizona law under which they were sentenced, as interpreted by the Arizona Supreme Court, is unconstitutional. They further claim that even if it is constitutional, its application to them violates the ex post facto and double jeopardy clauses of the Constitution, and that their constitutional rights to speedy sentences were violated. The district court rejected these contentions and upheld the death sentences. We affirm.

I.

FACTS AND BACKGROUND

In 1973 the Arizona legislature adopted alternative penalties for first degree murder of death or life imprisonment without possibility of parole for 25 years. Ariz.Rev. Stat. § 13-454 (1978) (current version at Ariz.Rev.Stat. § 13-703). The enactment required the judge to hold a presentence hearing at which he would hear evidence of aggravating and mitigating circumstances. After considering the evidence presented at the presentence hearing, and weighing it together with evidence relevant to aggravation or mitigation introduced at trial, the judge was required to make a finding as to the existence or non-existence of…

Sitting by Designation, concurring in part and dissenting in part.

I join with the majority in all respects but one, namely, the validity of the resentencing procedures which permit the new sentence to rest on findings of aggravating circumstances that were found, in the first sentencing proceeding, not to be present in the crime. The majority asserts that reconsideration of any such circumstances would not constitute double jeopardy. Guided by the interpretation of the double jeopardy clause recently advanced by the United States Supreme Court in Bullington v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981), I would permit reconsideration only of a narrower class of such aggravating circumstances — those that do not rest on evidence similar in nature to that supporting a conviction or acquittal of a crime. Because the record does not make clear whether on resentencing a death sentence had been imposed on any of the defendants in reliance on what I would consider an impermissible new finding of an aggravating circumstance, I would remand to the district court for such a determination.

*1266 Although it addresses a different factual situation, Bullington v.…

667 F.2d 1253 John Henry KNAPP, Arizona State Prison Inmate No. 33659, and all inmates of the Arizona State Prison similarly situated, Petitioners-Appellants, v. Harold CARDWELL, et al., Respondents-Appellees. No. 80-5419. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 1981. Decided Jan. 19, 1982. John Foreman, Deputy Public Defender, Phoenix, Ariz., for Ceja, knapp. Donald S. Klein, Tucson, Ariz., for Ortiz, Jeffers. Allen G. Minker, Tucson, Ariz., for Richmond, Blazak. Robert C. Brown, Casa Grande, Ariz., for Greenawalt. Robert B. Norgren, Tucson, Ariz., for Steelman. John P. Frank, Phoenix, Ariz., argued; NAACP Legal Defense Fund, etc. Michael Cooper, Jose A. Cardenas, Phoenix, Ariz., on brief, for amicus curiae. William J. Schaffer, III, Chief Counsel, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before MERRILL, ADAMS * , and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 Appellants are a class of Arizona prisoners sentenced to death. They attack their death sentences on the ground that the Arizona law under which they were sentenced, as interpreted by the…