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 the neck. The second was wounded in the arm and leg. Blazak, according to one witness, seemed to “get a kick out of killing.”

Blazak was sentenced to death on each of the murder convictions. His convictions and sentence were affirmed on appeal. State v. Blazak, 114 Ariz. 199, 200 , 560 P.2d 54, 55 (1977). Blazak then filed a first petition for post-conviction relief in state court, a first petition for a writ of habeas corpus in district court, a second petition for post-conviction relief in state court, an amended petition for a writ of habeas corpus in the district court and, finally, a second amended petition for a writ of habe-as corpus in the district court. The Arizona Supreme Court denied review of Bla-zak’s petitions for post-conviction relief, and the district court stayed Blazak’s first petition for a writ of habeas corpus pending exhaustion of state remedies.

Blazak’s second amended petition for a writ of habeas corpus raises 37 claims for relief. See attached Appendix. By memorandum decision, the district court denied Blazak’s petition on claims 1 through 10 and then granted Blazak’s petition on claim 11. After the district court ruled in Bla-zak’s favor on claim 11, the clerk prepared, signed and entered a “Judgment In A Civil Case,” which stated “that the petition for Writ Habeas Corpus is GRANTED as to Claim ELEVEN (11) ONLY.” The district court, however, never approved the judgment. Accordingly, there was no valid entry of judgment. See Fed.R.Civ.P. 58 (“the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it.”). See also American Interinsurance v. Occidental Fire & Cas., 835 F.2d 157, 160 (7th Cir.1987) (“When, as in our case, the judgment entails declaratory relief ... it is important — and it is mandatory under Rule 58(2) — that the district judge participate in the formulation and entry of the judgment.”).

Not only was there no valid entry of judgment under Fed.R.Civ.P. 58, but the *1416 district court did not direct the entry of a final judgment as to claims 1 through 11 under Fed.R.Civ.P. 54(b) or make an express determination that there was no just reason for delay. Nor did the district court certify a controlling question 1 of law pursuant to 28 U.S.C. § 1292 (b). Nor did the district court ever , issue a writ of habeas corpus. See Fed.R.Civ.P. 81(a) (“The writ of habeas corpus ... shall be directed to the person having custody of the person detained.”).

Despite these infirmities, and despite the fact that there was no indication that the district court ever considered the judgment to be final, both the petitioner and the respondents filed notices of appeal. Blazak purportedly appealed from the denial of claims 1 through 10; the respondents purportedly appealed from the granting of claim 11. Although the parties contend that the district court bifurcated the proceeding from the beginning, electing to decide first the claims involving Blazak’s conviction, the validity of that contention is questionable given that the original presiding district judge ordered the respondents to file an answer responding to all claims raised in the petition.

Several of Blazak’s claims which have not been addressed by the district court are intertwined claims which could affect the merits of Blazak’s conviction and the imposition of the penalty of death. Undecided claim 16, which alleges that “[t]he prosecution did not inform Mitchell Blazak that it intended to attempt to prove that he had prior convictions before his state trial....,” clearly relates to Blazak’s conviction, as does undecided claim 38 which involves a challenge to certain jury instructions. See Appendix.

The parties now argue that jurisdiction is appropriate under 28 U.S.C. § 1291 , contending that claims 12 through 37 have become moot by the partial judgment in Blazak’s favor on claim 11. Blazak asserts, however, that he has not abandoned or waived the undecided claims and acknowledges that the district court may ultimately be required to decide them. These arguments in support of jurisdiction “smack[] odiously of a collusive attempt by the parties to confer federal subject matter jurisdiction by consent.” Boynton v. United States, 566 F.2d 50 , 54 n. 7 (9th Cir.1977). Because the collusive agreement of parties may not support jurisdiction, we are bound to examine the issue independently.

II

For a judgment to be appealable, it must be final “not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved.” Collins v. Miller, 252 U.S. 364, 370 , 40 S.Ct. 347, 349 , 64 L.Ed. 616 (1920). A judgment is not final under 28 U.S.C. § 1291 if it leaves active claims unresolved. See Sierra Club v. Dept. of Transp., 948 F.2d 568 , 571 (9th Cir.1991) (judgment only partially disposed of claims and was not appealable); Wolf v. Banco Nacional de Mexico, S.A., 721 F.2d 660, 662 (9th Cir.1983) (judgment did not consider two claims which remained live, therefore judgment was not final). See also David G. Knibb, Federal Court of Appeals Manual 46-47 (2d ed. 1990) (“When judgment is entered on some but not all claims, or against or in favor of some but not all parties, the judgment is not final for purposes of appeal unless the district court certifies its finality.”).

In this case, there was no valid entry of judgment on claims 1 through 11. Nor did the court ever consider claims 12 through 37. Consequently, the judgment was not appealable under 28 U.S.C. § 1291 as a “final decision.” Banco Nacional de Mexico, S.A:, 721 F.2d at 662 . Moreover, the district court did not certify the partial judgment pursuant to Fed.R.Civ.P. 54(b). Without such certification the partial judgment in this case is unreviewable. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 554 (9th Cir.1986), cert. denied, 484 U.S. 823 , 108 S.Ct. 85 , 98 L.Ed.2d 47 (1987).

III

The standards of finality in habeas corpus proceedings are no less exacting than in other cases. Andrews v. United States, 373 U.S. 334, 340 , 83 S.Ct. 1236, 1240 , 10 *1417 L.Ed.2d 383 (1963). Recently, the Supreme Court, emphasizing the burden that habeas review places on “scarce federal judicial resources,” urged the federal courts to adopt procedures to “assure[ ] its continued efficacy.” McCleskey v. Zant, — U.S. -,-, 111 S.Ct. 1454, 1469-71 , 113 L.Ed.2d 517 (1991). In McCleskey , the Court held that unless a habeas petitioner shows cause and prejudice, a court may not reach the merits of new claims not previously raised which constitute an abuse of the writ. Likewise, the Court has held that, without a showing of cause and prejudice, a court may not reach the merits of successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986), or procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. Murray v. Carrier, 477 U.S. 478 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).

All of these cases are “premised on [the Court’s] concerns for the finality of state judgments of conviction, and the ‘significant costs of federal habeas review.’ ” Sawyer v. Whitley, — U.S.-,-, 112 S.Ct. 2514, 2518 , 120 L.Ed.2d 269 (1992) (citations omitted). See also Keeney v. Ta-mayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1718 , 118 L.Ed.2d 318 (1992) (“Federal habeas litigation also places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is fresh.”) (citation omitted). Furthermore, all of these cases attempt to “obviate ... the necessity for accommodating multiple filings.” In re James Blodgett, — U.S.-,-, 112 S.Ct. 674, 676 , 116 L.Ed.2d 669 (1992). To the extent that the requirements set out in these cases “reduce[] piecemeal litigation, both the courts and the prisoner[] should benefit, for as a result the district court will be more likely to review all of the prisoner’s claims in a single proceeding, thus providing for a more focused and thorough review.” Rose v. Lundy, 455 U.S. 509, 520 , 102 S.Ct. 1198, 1204 , 71 L.Ed.2d 379 (1982).

In Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc), the Eleventh Circuit, responding in part to the Supreme Court’s concerns, recently held that in a habeas corpus proceeding presenting multiple claims for relief, the appellate court should exercise jurisdiction only after the district court disposes of all claims. In Clisby , the Eleventh Circuit stated that

Id. at 938 .

The Eleventh Circuit noted that the district court may certify a partial disposition of claims as a final judgment under Fed. R.Civ.P. 54(b) when there is “an express determination that there is no just reason for delay.” Rule 54(b) certification in habe-as proceedings, however, is justified “in only the rarest of cases.” Id. at 938 n. 17.

The Clisby decision is important for these proceedings because it effectively reversed a conflict with the Eighth Circuit referred to by Justice White in his dissent from the denial of certiorari in Kemp v. Blake, 474 U.S. 998, 999 , 106 S.Ct. 374, 375 , 88 L.Ed.2d 367 (1985). Now the Eighth and the Eleventh Circuits agree that, when a district court grants habeas relief to a petitioner on some but not all of the claims presented for consideration, the court of appeals may not review the district court decision unless the order also finally disposes of the remainder of petitioner’s claims. See Stewart v. Bishop, 403 F.2d 674, 679-80 (8th Cir.1968). We have previously cited Stewart with approval. See Lampman v. United States Dist. Ct. for Cent. Dist. of Cal., 418 F.2d 215 , 216 n. 1 (9th Cir.1969), cert. denied, 397 U.S. 919 , 90 S.Ct. 926 , 25 L.Ed.2d 100 (1970) (policy *1418 against piecemeal litigation required dismissing appeal and denying petition for review of an interlocutory non-appealable order). The only contrary circuit authority, Young v. Herring, 777 F.2d 198 (5th Cir. 1985), relies on the Eleventh Circuit’s decision in Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998 , 106 S.Ct. 374 , 88 L.Ed.2d 367 (1985), now clearly undermined by Clisby . To ground this Circuit’s future habeas practice on an undermined and ill-advised decision like Young , followed by no other circuit, is nothing short of ludicrous.

IV

In Bermudez v. Smith, 797 F.2d 108 (2d Cir.1986), the Second Circuit, referring to habeas petitions, stated that

Id. at 109-110 .

Those same policy concerns are implicated in this case. Equally important in the calculus are the concerns of the petitioner whose claims are potentially put at risk by the type of piecemeal review encouraged in this case. It is a grave disservice, after McCleskey , to expose a petitioner for a writ of habeas corpus, such as Bla.zak, to multiple appeals possibly resulting in the involuntary dismissal of constitutional claims. See Vasquez v. Harris, -— U.S.-, 112 S.Ct. 1713 , 118 L.Ed.2d 418 (1992).

V

We have jurisdiction “of appeals from all final decisions of the district courts.... ” 28 U.S.C. § 1291 . An order that grants a petition for a writ of habeas corpus without resolving all claims raised is not a “final decision.” Our jurisdiction over civil appeals from the grant or denial of a petition for a writ of habeas corpus is not expanded by 28 U.S.C. § 2253 . See 28 U.S.C. § 2253 (“In a habeas corpus proceeding ... the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had.”). Accordingly, this appeal should be dismissed for want of jurisdiction.

I would remand Blazak’s second amended petition to the district court for further proceédings and the entry of a final judgment.

APPENDIX 1

CLAIMS NOS. 1-5: SUFFICIENCY AND ADMISSIBILITY OF THE EVIDENCE

At trial, the evidence established that a man wearing a ski mask walked into the Brown Fox Tavern in Tucson, Arizona on the evening of December 14, 1973. The gunman demanded money from the bartender and that request was refused. The gunman then fired the pistol, killing the bartender and one of the patrons, while wounding another.

In July of 1974, Kenneth Pease was arrested for unrelated felony charges in New Mexico. Pease, a convicted felon and con man, initially denied having any knowledge of the Brown Fox homicides. After receiving a grant of transactional immunity, however, Pease claimed to be an accomplice in those crimes and accused Mitchell Blazak of being the gunman. No other witness has ever identified Mitchell Blazak as having committed these offenses.

At trial, the state had no hope of obtaining a conviction without the testimony of Kenneth Pease. The evidence established that Pease had a criminal record, had a poor reputation for truthfulness, had a strong motive to fabricate and give false testimony concerning important events in this case. For example:

By calling Kenneth Pease to testify at trial, the prosecution knowingly introduced perjured testimony.

On the day after the Brown Fox homicides, two different individuals gave two different ski masks found along roadsides to the Tucson police. The state was allowed to introduce one of the masks at trial, Exhibit 34. This mask was admitted despite the facts that:

The state was allowed to present testimony from two experts concerning hair taken from the ski mask, Exhibit 34. Those experts were Captain Carl Kempe of the Tucson Crime Laboratory, and Morris Clark of the Federal Bureau of Investigations Laboratory. Their testimony was admitted despite the fact that:

Following trial, Mitchell Blazak’s new attorney, Thomas Higgins, uncovered new evidence of governmental misconduct which further established that it was error to admit the ski mask, Exhibit 34, and hairs allegedly taken from it. That evidence consisted of testimony from Pima County Justice Court Constable Byron Stuckey. Mr. Stuckey testified that former Pima County Sheriff Deputy Michael Tucker informed him that Tucker and another deputy had tampered with the hair evidence in order to develop falsely incriminating evidence against Mr. Blazak. In addition, the testimony of Patricia Ashburn established that *1421 Tucker had boasted to others that he had planted evidence in the Brown Fox Tavern case. The evidence further established that Deputy Tucker had access to the hairs before they were sent to the F.B.I. laboratory.

Based upon the foregoing, it is respectfully submitted that the state court violated Mitchell Blazak’s constitutional rights as follows:

CLAIM NO. 6: NON-DISCLOSURE OF BENEFIT TO INFORMANT

At trial, Pease testified that he was being held in jail on unrelated charges and that he had not been promised any benefits concerning those charges in exchange for his testimony in the Brown Fox case. Further, the jury was never informed of the fact that Pease had been released from jail to travel to New Mexico unescorted and without posting bond prior to trial.

In his closing argument, the prosecutor told the jury that “the first point is there was absolutely no motive whatsoever brought out in this courtroom for Ken Peáse to lie.” While the jury deliberated, however, the unrelated charges against Mr. Pease were dismissed and he was released from custody.

The state subsequently admitted that the actual dismissal of the unrelated charges against Mr. Pease was withheld until the jury began deliberations because the prosecutor “didn’t want to give the defense more ammunition.” The state suppressed this relevant evidence in order to prevent the jury from hearing testimony favorable to the defense.

The foregoing conduct served to deprive Mitchell Blazak of his rights to a fair trial, to due process, and to confront and cross-examine witnesses under the Sixth and Fourteenth Amendments.

CLAIM NO. 7: PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT— “PHONY” DEFENSE.

In his closing argument, the prosecutor repeatedly referred to the defense as “phony”, opining that Mitchell Blazak and his attorney fabricated the defense in this case.

This misconduct by the state violated Mr. Blazak’s rights to due process and to a fair trial under the Fifth and Fourteenth Amendments.

CLAIM NO. 8: INEFFECTIVE ASSISTANCE OF COUNSEL

At the time of his trial, Mitchell Blazak had a prior conviction for assault with intent to commit murder. Had this conviction not existed, Mr. Blazak would have *1422 taken the witness stand in his own defense at trial. In the prior proceedings, Mr. Bla-zak was deemed to be incompetent to stand trial for a lengthy period of time and his competency was in question throughout the proceedings. Despite this fact, the court failed to make any attempt to determine whether Mr. Blazak was competent to enter the plea of guilty which led to his conviction. Although his prior conviction was clearly invalid, trial counsel failed to challenge its admissibility for purposes of impeachment or otherwise.

Prior to trial, Mr. Blazak engaged in unusual behavior calling his competency into question. Despite these indications, as well as Mr. Blazak’s lengthy history of mental illness and incompetency, defense counsel made no attempt to determine whether his client was competent to stand trial.

Prior to trial, defense counsel was aware of a rock throwing incident which Pease claimed occurred on the night that Mitchell Blazak committed these crimes. Defense counsel failed to investigate this incident. Had he done so, he would have obtained irrefutable evidence that this incident occurred four days before the Brown Fox homicides.

Prior to trial, defense counsel had information indicating that Kenneth Pease had buried a ski mask near the time of the Brown Fox incident in the yard at his residence. Defense counsel failed to investigate. This mask was located in that yard after trial by subsequent defense counsel. The mask matched Pease’s description of the gunman’s mask.

At trial, Pease claimed that, earlier in the morning following the Brown Fox homicides, Mitchell Blazak came to his house and showed him a newspaper article about the shootings. Although no such article appeared until the next day, defense counsel failed to bring this to the jury’s attention.

Defense counsel promised the jury in his opening statement that he would call Michael Blagg as an alibi witness. Defense counsel failed to do so which led not only to the absence of this evidence, but to assisting the prosecutor in his closing argument.

Defense counsel failed to request jury instruction on felony murder or on lesser included offenses, such as second degree murder.

For all of the foregoing reasons, it is submitted that Mitchell Blazak was denied the effective assistance of counsel at trial, thus violating his rights under the Sixth and Fourteenth Amendments.

CLAIMS NOS. 9-10: INVOLUNTARY ABSENCE FROM CRUCIAL PROCEEDINGS:

Mitchell Blazak was indicted by a Pima County Grand Jury on July 15, 1974. He has remained in custody continuously since that time.

Clay Diamos, Esq., who had represented Mr. Blazak in a prior criminal proceeding and had conducted an investigation concerning the allegations in the present case, was appointed as defense counsel. On August 7, 1974, a hearing was conducted at which Mr. Diamos was allowed to withdraw as counsel. Mr. Blazak received no notice of this hearing and was not present. Over objection by the Pima County Public Defender, that office was appointed to represent Mr. Blazak.

On August 13, 1974, a hearing was conducted of which Mr. Blazak had no notice and was not present. At that time, the Public Defender’s Office was allowed to withdraw for reasons apparently presented to the court in an off-the-record discussion. Howard A. Kashman, Esq., was appointed as defense counsel.

At a hearing conducted September 25, 1974, Mr. Blazak personally informed the court that he wished to be present at all proceedings in his case. The court entered an order that Mr. Blazak be transported to all future hearings.

Five days later, a hearing was held at which Mr. Blazak was not present and of which he had no notice. At that hearing, the state’s motion to continue the trial was granted over defense objection.

Based on the foregoing, it is respectfully submitted that Mitchell Blazak’s constitu *1423 tional rights were violated by the state court as follows:

CLAIM NO. 11: LACK OF COMPETENCY

At the time of trial, Mitchell Blazak had a lengthy history of severe mental illness. He also engaged in bizarre conduct in court prior to trial. Although his competency to stand trial was very much in question, the issue was not addressed by the court and no finding of competency was made.

Based upon Mitchell Blazak’s incompetency and the state court’s failure to make a valid finding of competency, the Due Process Clause of the Fourteenth Amendment was violated.

CLAIM NO. 12: NON-DISCLOSURE OF INFORMATION USED AT SENTENCING

The presentence report prepared in Mitchell Blazak’s case, dated December 13, 1974, contained negative information and a recommendation that capital punishment be imposed from a person whose identity was not disclosed to the defense. This same presentence report was used in resentenc-ing on September 21, 1980.

As a result of this non-disclosure, Mr. Blazak’s right to due process as guaranteed by the Fourteenth Amendment was violated.

CLAIM NO. 13: FAILURE TO UPDATE PRESENTENCE REPORT FOR RESEN-TENCING

On December 17, 1974, the state court imposed sentence in Mitchell Blazak’s case. The Arizona Supreme Court subsequently held that the capital punishment statue in effect at that time was invalid, and ordered that Mr. Blazak be resentenced. That re-sentencing occurred on September 11,1980.

The trial court did not order nor obtain an updated presentence report despite the passage of nearly six years between the sentencing and resentencing. As a result, evidence in mitigation was not obtained.

The failure of the state court to obtain updated information prior to resentencing violated Mr. Blazak’s right to due process.

At Mitchell Blazak’s sentencing on December 17, 1974, the state court found aggravating factors under former A.R.S. § 13-454. The findings of aggravation included (1) Mitchell Blazak had previously been convicted of an offense punishable by life imprisonment in Pima County Superior Court, Case No. A-15829; (2) He had previously been convicted of a felony involving the use or threat of violence on another person in the same case, No. A-15829; (3) That in committing the Brown Fox homicides, he had created a grave risk of death to other persons; and (4) The Brown Fox homicides were committed in an especially cruel manner. At Mr. Blazak’s resentenc-ing on September 11, 1980, the state court made the same findings in aggravation. In addition, a finding was made that the offense was committed in expectation of the receipt of something of pecuniary value. These findings are invalid for the reasons set forth in Claim Nos. 14 through 24 below.

CLAIM NO. 14: INVALID CONVICTIONS USED IN AGGRAVATION

At both the sentencing on December 17, 1974 and the resentencing on September 11, 1980, the state court considered Mitchell Blazak’s convictions on charges of robbery and assault with intent to commit murder in Pima County Case No. A-15829 in aggravation. Both of these convictions arose from a single incident.

*1424 Due to the absence of a valid finding of competency and the existence of substantial contrary evidence, those prior convictions are invalid under the Due Process Clause of the Fourteenth Amendment. Their consideration by the state court at sentencing violated Mr. Blazak’s rights to due process and to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

CLAIM NO. 15: APPLICATION OF ONE EVENT AS TWO AGGRAVATING FACTORS

In imposing sentence, the trial court found two aggravating factors to exist based upon one event. Pima County Case No. A-15829 was used to reach a finding that Mitchell Blazak had previously been convicted of an offense punishable by life imprisonment and that he had previously committed a felony involving the use or threat of violence on another person.

This multiplication of aggravating factors violated Mr. Blazak’s rights to due process and to be free from double jeopardy and cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments.

Further, the state courts of Arizona have applied such aggravating factors in a freakish and arbitrary manner, thus denying Mr. Blazak’s rights to due process and equal protection, as well as to be free from cruel and unusual punishment, as guaranteed by the Eighth and Fourteenth Amendments.

CLAIM NO. 16: ABSENCE OF PRETRIAL NOTICE AND JURY FINDINGS OF AGGRAVATING FACTORS

The prosecution did not inform Mitchell Blazak that it intended to attempt to prove that he had prior convictions before his state trial or resentencing. No jury heard or decided the issue of whether Mitchell Blazak had been convicted of the offenses delineated in Pima County Case No. A-15829. In non-capital cases, defendants in Arizona state courts have the right to have pretrial notice of allegations of prior convictions and to have such allegations decided by a jury.

The state court’s failure to provide pretrial notice of allegations of prior convictions and to provide a jury trial as to the existence of these prior convictions under these circumstances, violated Mr. Blazak’s rights to due process and equal protection, as well as to be free from cruel and unusual punishment as guaranteed by the Eighth and Fourteenth Amendments. CLAIM NOS. 17-20: INVALIDITY OF PECUNIARY GAIN AGGRAVATING FACTOR

At sentencing on December 17, 1974, the state trial court found that the aggravating factor arising from the commission of the offense for pecuniary gain was inapplicable to Mitchell Blazak’s case. At resentencing on September 11, 1980, the court found that aggravating factor to apply. A.R.S. § 13-454(E)(4).

This finding is invalid for the following reasons:

*1425 CLAIM NOS. 21-22: INVALIDITY OF AGGRAVATING FACTOR OF “GRAVE RISK TO OTHERS”

At sentencing, the state court found that the offenses had “created a grave risk of death to another person or persons in addition to the victim[s] of the offense,” as an aggravating factor.

That finding was invalid for the following reasons:

CLAIM NO. 23: FAILURE TO REMAND UPON STRIKING OF AGGRAVATING FACTOR

At both the sentencing and resentencing, the state trial court found as an aggravating factor that the homicides had been committed in “an especially cruel, heinous or depraved manner,” thus constituting an aggravating factor pursuant to A.R.S. § 13-434(E)(6). Following the resentencing, the Arizona Supreme Court held that the evidence did not support this finding in aggravation. That court failed, however, to remand the matter to the trial court for re-sentencing although it had done so in at least one other case. State v. Blazak, 131 Ariz. 598, 604 , 643 P.2d 694 (1982).

The failure to grant a resentencing following the striking of this aggravating factor violated Mr. Blazak’s rights to due process and equal protection, as well as to be free from cruel and unusual punishment, in contravention of the Eighth and Fourteenth Amendments.

CLAIM NO. 24: INVALIDITY OF AGGRAVATING FACTORS BASED ON HEARSAY

At Mitchell Blazak’s resentencing on September 11, 1980, the state court heard no testimony, but relied solely on evidence presented at the original sentencing in 1974. Under Arizona law, this prior recorded testimony was inadmissible.

By relying on inadmissible evidence, the state court violated Mr. Blazak’s rights to due process of law and equal protection, as well as to be free from cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments.

CLAIM NO. 25: STATE’S SUPPRESSION OF MITIGATING EVIDENCE

Prior to the resentencing, the prosecution refused to provide information to the defense which would have assisted in locating witnesses to testify in mitigation. As a result, those witnesses were never located and did not testify.

The state’s refusal to provide such information violated Mitchell Blazak’s rights to due process, to compulsory process and to be free from cruel and unusual punishment in violation of the Sixth, Eighth and Fourteenth Amendments.

CLAIM NO. 26: FAILURE TO CONSIDER MITIGATING EVIDENCE

At the sentencing and resentencing, the state court failed to consider mitigating evidence which was available, including, but not limited to Mitchell Blazak’s history of mental illness.

By failing to consider such evidence, the state court violated Mr. Blazak’s rights to due process and to be free from cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments. CLAIM NO. 27: FAILURE TO ENUMERATE MITIGATING EVIDENCE

The state court failed to enumerate the evidence that it considered in mitigation at the sentencing and resentencing.

*1426 By failing to enumerate such evidence, the sentences were imposed in an arbitrary and capricious fashion. Further, any meaningful review was rendered impossible. In so doing, the state court violated Mitchell Blazak’s rights to due process and to be free from cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments.

CLAIM NO. 28: INEFFECTIVE ASSISTANCE OF COUNSEL

With regard to the 1974 sentencing, defense counsel failed to use reasonable diligence in investigating the existence of mitigating circumstances in presenting such evidence, instead relying largely on a continued claim of Mitchell Blazak’s innocence. With regard to the 1980 resentencing, defense counsel failed to investigate or obtain mitigating evidence arising after the original sentencing.

Mitchell Blazak received ineffective assistance of counsel, and was deprived of due process and subjected to cruel and unusual punishment, all in violation of the Sixth, Eighth and Fourteenth Amendments.

CLAIM NO. 29: BURDEN OF PROOF IN MITIGATION

The Arizona sentencing statute places the burden of proving mitigating circumstances upon the defense.

Placing this burden upon the defense violates due process and imposes cruel and unusual punishment, in contravention of the Eighth and Fourteenth Amendments to the United States Constitution.

CLAIM NO. 30: DENIAL OF SPEEDY SENTENCING

The challenged sentences were imposed nearly six years after Mitchell Blazak was convicted of these crimes. As a result, mitigating evidence that could have been offered on behalf of Mr. Blazak was lost.

This denial of a speedy sentencing violated Mr. Blazak’s rights under the Sixth and Fourteenth Amendments to the United States Constitution.

CLAIM NO. 81: FAILURE TO CONDUCT SENTENCING IN FRONT OF A NEW JUDGE

The same judge who presided over the trial and original sentencing in 1974 conducted Mitchell Blazak’s new sentencing in 1980. That judge failed to obtain a new presentence investigation report and relied solely upon his recollections of the prior proceedings.

The failure to provide a new judge for the new sentencing violated Mr. Blazak’s rights under the due process clause. CLAIM NO. 32: LACK OF PROPORTIONALITY REVIEW

The failure of the state court to conduct a proportionality review, despite doing so in other cases, resulted in the imposition of sentence in an unfair, arbitrary and capricious manner.

Mr. Blazak’s rights to due process and equal protection, as well as to be free from cruel and unusual punishment, as guaranteed by the Eighth and Fourteenth Amendments, were therefore violated.

CLAIM NO. 33: ABSENCE OF LESSER INCLUDED OFFENSE INSTRUCTION

Prior to deliberations at trial, the jury was instructed only on the law in connection with the charge of first degree murder, not the lesser included offense of second degree murder.

The imposition of capital punishment following the failure to provide such an instruction violated Mr. Blazak’s rights under the Eighth and Fourteenth Amendments.

CLAIM NO. 34: DENIAL OF SENTENCING BY JURY

Mitchell Blazak was sentenced by the court. The denial of the sentencing jury deprived Mr. Blazak of his Sixth, Eighth and Fourteenth Amendment rights. CLAIM NO. 35: ABSENCE OF BURDEN OR STANDARDS

The Arizona capital sentencing statute fails to place the burden of establishing that aggravating factors outweigh mitigating factors on the prosecution and fails to *1427 set forth any standard to be applied to this issue.

The Arizona statute is therefore invalid as violating Mitchell Blazak’s rights to due process and to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments.

CLAIM NO. 36: MANDATORY IMPOSITION OF CAPITAL PUNISHMENT

The Arizona statute requires that capital punishment be imposed upon a finding of one or more aggravating factors that are not outweighed by mitigating factors.

The absence of the discretion to impose a sentence other than death violated Mitchell Blazak’s rights to due process and to be free from cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments.

CLAIM NO. 37: RETROACTIVE APPLICATION OF SENTENCING STATUTE

The Arizona capital sentencing statute in effect at the time of commission of the underlying offenses was subsequently held to be invalid by the Arizona Supreme Court. As a result, the state court imposed sentence based upon a statute passed in 1978 to offenses committed in 1973.

Such retroactive application of the law violated Mitchell Blazak’s rights to be free from the application of ex post facto laws, to due process and to be from cruel and unusual punishment in contravention of Article 1, Section 10, Clause 1 of the Constitution, as well as the Eighth and Fourteenth Amendments.

. Second Amended Petition for A Writ of Habe-as Corpus of Mitchell Thomas Blazak.