Willie Lee Richmond v. Samuel A. Lewis, Director, Arizona Department of Corrections and Roger Crist, Superintendent of the Arizona State Prison

948 F.2d 1473 Willie Lee RICHMOND, Petitioner-Appellant, v. Samuel A. LEWIS, * Director, Arizona Department of Corrections; and Roger Crist, Superintendent of the Arizona State Prison, Respondents-Appellees. No. 86-2382. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 18, 1987. Submission Vacated Sept. 22, 1987. Reargued and Submitted Sept. 27, 1990. Decided Dec. 26, 1990. As Amended on Denial of Rehearing and Rehearing En Banc Oct. 17, 1991. As Amended Jan. 14, 1992. Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., for petitioner-appellant. Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before ALARCON and O'SCANNLAIN, Circuit Judges, and STEPHENS, ** District Judge. ORDER The opinion reported at 921 F.2d 933 (9th Cir.1990) is hereby amended as follows: in the block quotation in the second column on page 943 of the opinion, twenty-two lines from the bottom of the page, delete the ellipsis and insert in lieu thereof: "In [State v.] Gretzler, [ 135 Ariz. 42 , 659 P.2d 1 (1983) ] supra, we discussed factors which lead to a finding of…

ORDER

The opinion reported at 921 F.2d 933 (9th Cir.1990) is hereby amended as follows: in the block quotation in the second column on page 943 of the opinion, twenty-two lines from the bottom of the page, delete the ellipsis and insert in lieu thereof: “In [State v.] Gretzler, [ 135 Ariz. 42 , 659 P.2d 1 (1983) ] supra, we discussed factors which lead to a finding of heinousness or depravity. One factor is the infliction of gratuitous violence on the victim; another related factor is the needless mutilation of the victim.”

The final paragraph in Part IV-D on page 947 of the opinion is hereby amended to read as follows:

In this case, there is no similar doubt. Elimination of the challenged factor would still leave enough support for Richmond’s sentence because the statute at issue here is fundamentally different from the statute at issue in Clemons [v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990) ]. The Mississippi law that Clemons considered authorizes the death penalty if “ ‘there are insufficient mitigating circumstances ... to outweigh the aggravating circumstances.’ ” Id. 110 S.Ct. at 1446 n. 2 (quoting Miss.Code Ann. § 99-19-101(3)(c) (Supp.1989))…

with whom Judges HUG, NORRIS and REINHARDT join, dissenting from denial of rehearing en banc:

By declining to rehear this case en banc, this court sends a man to his death without undertaking even the minimal review that the Supreme Court continues to find appropriate in habeas cases. In this case, even the most deferential review of the record reveals that no rational sentencer could have concluded that Richmond’s mental state was “especially heinous,” as that term is defined by the Arizona Supreme Court. The Arizona Supreme Court’s conclusion that Richmond’s mental state was “especially heinous” turns on the assumption that he was driving the car when it ran over the victim. The identity of the driver, however, was the subject of a credibility dispute. Neither the jury nor the trial court resolved that dispute, and the Arizona Supreme Court is incapable of resolving it rationally.

Moreover, the panel maintains that any error in the finding of an aggravating circumstance is harmless because the sentencing judge concluded that the mitigating circumstances were not sufficiently substantial to call for leniency. The panel’s conclusion is based on the erroneous premise that Arizona…