Mitchell Thomas Blazak, Petitioner-Appellee-Cross-Appellant v. James R. Ricketts, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees

971 F.2d 1408 Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees. Nos. 91-16549, 91-16562. United States Court of Appeals, Ninth Circuit. Argued June 23, 1992. Decided Aug. 4, 1992. Robert Bartels, Arizona State University, Tempe, Ariz., and Natman Schaye, Tucson, Ariz., for petitioner-appellee-cross-appellant. R. Wayne Ford, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants-cross-appellees. Appeal from the United States District Court for the District of Arizona. Before: TANG, BEEZER, and BRUNETTI, Circuit Judges. PER CURIAM. 1 This is an appeal and cross-appeal from a grant of habeas corpus by the district court in a death penalty case. We sua sponte have considered whether we have jurisdiction to consider this appeal, see Collins v. Miller, 252 U.S. 364, 366 , 40 S.Ct. 347, 348 , 64 L.Ed. 616 (1920), and whether we should remand this case because of prudential concerns for judicial finality and efficiency. We find that the grant of habeas corpus was a final judgment ripe for immediate review. 2 * In 1988, Petitioner Mitchell Blazak filed a second amended habeas corpus petition…

This is an appeal and cross-appeal from a grant of habeas corpus by the district court in a death penalty case. We sua sponte have considered whether we have jurisdiction to consider this appeal, see Collins v. Miller, 252 U.S. 364, 366 , 40 S.Ct. 347, 348 , 64 L.Ed. 616 (1920), and whether we should remand this case because of prudential concerns for judicial finality and efficiency. We find that the grant of habeas corpus was a final judgment ripe for immediate review.

I

In 1988, Petitioner Mitchell Blazak filed a second amended habeas corpus petition under 28 U.S.C. § 2254 . 1 The petition contained thirty-seven claims for relief, eleven of the claims challenged the conviction and twenty-six of the claims attacked the sentence. Both parties indicate that the district judge in effect bifurcated the conviction and sentencing issues, considering all of the conviction issues, claims one through eleven, separately. In July of 1990, the district court granted summary judgment in favor of the state on claims five, six, seven, nine, and ten. The court held an evidentiary hearing on claims one, two, three, four, eight, and eleven. On September 10, 1991, the court entered an order…

dissenting:

This case epitomizes the worst in unnecessary, time-consuming, duplicative and piecemeal appellate review. It guarantees every petitioner for a writ of habeas corpus who presents multiple claims for relief a separate full-fledged appeal on each successful claim. Such a procedure is contrary to law and threatens to undermine the singular importance of the writ of ha-beas corpus. In my view, we lack jurisdiction to consider the merits of the appeal and cross-appeal to this court.

I

Mitchell Thomas Blazak was convicted of murdering a bartender and a patron in the Brown Fox Tavern in Tucson, Arizona shortly after midnight on December 15, 1973. Blazak was also convicted of assault with intent to commit murder of a second patron and attempted armed robbery arising out of the same episode.

The testimony at Blazak’s trial established that Blazak entered the tavern, pointed a pistol at the bartender and demanded money. When the bartender refused, Blazak shot him four times, killing him with a “perforating gun shot wound of the heart.” After the bartender staggered and fell behind the bar, Blazak turned the pistol on two seated patrons. One patron was killed with a shot to…