Jimmie Wayne Jeffers v. James R. Ricketts, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

(dissenting in part and concurring in part):

The majority concludes that the Arizona Supreme Court, in affirming petitioner’s death sentence, adopted such a broad 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. 1

STANDARD OF REVIEW

Generally, a federal court in a habeas corpus proceeding must accord a presumption of correctness to a state 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 , 102 S.Ct. 1303, 1306 , 71 L.Ed.2d 480 (1982); Fendler v. Goldsmith, 728 F.2d 1181 , 1191 n. 21 (9th Cir.1983). Rather, the federal court reviews such nonfactual questions de novo. Chaney v. Lewis, 801 F.2d 1191, 1194 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1911 , 95 L.Ed.2d 516 (1987); Fendler, 728 F.2d at 1191 n. 21 (federal…

Jimmie Wayne Jeffers appeals the dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 . Jeffers’ habeas petition challenges his convictions for assault with a deadly weapon and first degree murder and his sentence of death. We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.

*478 FACTS AND PROCEDURAL HISTORY

Jeffers’ was convicted of murdering Penelope Cheney and of assaulting Doris Van der Veer with a deadly weapon. Penelope Cheney had been Jeffers’ girlfriend and had been arrested with Jeffers in May of 1976 on state charges of receiving stolen property. Jeffers had posted bail for Cheney, but had been unable to post bond for himself and remained in custody at the Pima County Jail. While in jail Jeffers received reports that Cheney had been cooperating with the police, providing information to them 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 read it and seized it. Jeffers was finally released on bail in early October.

Later that same month, Jeffers was…

832 F.2d 476 24 Fed. R. Evid. Serv. 321 Jimmie Wayne JEFFERS, Petitioner-Appellant, v. James R. RICKETTS, Director, Arizona Department of Corrections; Donald Wawrzaszek, Superintendent, Arizona State Prison, Respondents-Appellees. No. 86-1840. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 13, 1987. Decided Nov. 9, 1987. Donald S. Klein, Frank P. Leto, Tucson, Ariz., for petitioner-appellant. Gerald R. Grant, Phoenix, Ariz., for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before PREGERSON and CANBY, Circuit Judges and WILSON * , District Judge. CANBY, Circuit Judge: 1 Jimmie Wayne Jeffers appeals the dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. Sec. 2254 . Jeffers' habeas petition challenges his convictions for assault with a deadly weapon and first degree murder and his sentence of death. We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.FACTS AND PROCEDURAL HISTORY 2 Jeffers' was convicted of murdering Penelope Cheney and of assaulting Doris Van der Veer with a deadly weapon. Penelope Cheney had been Jeffers' girlfriend and…