Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections Donald Wawrzaszek, Superintendent, Arizona State Prison

with whom Circuit Judges FLETCHER, WILLIAM A. NORRIS and NOONAN join, dissenting:

We respectfully dissent.

*420 The murder of Penelope Cheney is not the prototypical killing that commonly results in imposition of the death penalty, nor even the kind of killing for which prosecutors commonly seek the death penalty. Mr. Jeffers was not a serial killer; he did not kill randomly; he did not kill strangers. He was extremely unstable emotionally. He suffered from a borderline personality disorder, and the sentencing judge heard testimony that Mr. Jeffers used drugs in an attempt to self-medicate this condition. He was a long-term heroin addict and alcoholic. He was under the influence of these drugs at the time of Ms. Cheney’s murder.

Cheney was Jeffers’s former girlfriend, with whom he experienced a tempestuous relationship. The two were arrested together on charges of possession of drugs and receipt of stolen property. After Jeffers bailed Cheney out of jail, he heard that she was cooperating with the police against him. Soon after he was released from jail on bond he invited her over to his apartment to discuss getting back together. When she came over, they apparently quarreled,…

38 F.3d 411 Jimmie Wayne JEFFERS, Petitioner-Appellant, v. Samuel LEWIS, 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 (en banc) May 26, 1994. Decided Sept. 28, 1994. As Amended Nov. 16, 1994. Noonan, Circuit Judge, filed dissenting opinion in which Pregerson and William A. Norris, Circuit Judges, joined. Frank P. Leto, Donald S. Klein, Asst. Pima County Public Defenders, Tucson, AZ, and Clifford Gardner, Gardner & Derham, San Francisco, CA, for petitioner-appellant. Paul J. McMurdie, Chief Counsel, Atty. General's Office, Phoenix, AZ, for respondents-appellees. On Remand from the United States Supreme Court. Before: WALLACE, Chief Judge, and FLETCHER, FARRIS, PREGERSON, NORRIS, BEEZER, WIGGINS, NOONAN, THOMPSON, LEAVY and RYMER, Circuit Judges. Opinion by Judge DAVID R. THOMPSON; Dissent by Judge PREGERSON; Dissent by Judge NOONAN. DAVID R. THOMPSON, Circuit Judge: 1 In 1978, an Arizona jury convicted Jimmie Wayne Jeffers of first degree murder. 1 After a sentencing hearing, the trial court found two aggravating…

Opinion by Judge DAVID R. THOMPSON; Dissent by Judge PREGERSON; Dissent by Judge NOONAN.

In 1978, an Arizona jury convicted Jimmie Wayne Jeffers of first degree murder. 1 After a sentencing hearing, the trial court found two aggravating factors and.no mitigating circumstances. The court sentenced Jeffers to death, in accordance with the Arizona death penalty statute, Ariz.Rev.Stat. § 13=154 (Supp.1973) (currently Ariz.Rev. Stat. § 13-703 (1989)).

The Arizona Supreme Court vacated Jef-fers’s death sentence and remanded his case to the trial court for resentencing in light of that court’s decision in State v. Watson, 120 Ariz. 441 , 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924 , 99 S.Ct. 1254 , 59 L.Ed.2d 478 (1979). In Watson , the Arizona Supreme Court applied the principles of Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), which held a sentencer in a capital proceeding cannot be restricted to the *414 specific mitigating factors enumerated in a death penalty statute, but must consider any aspect of a defendant’s background or character the defendant offers as a justification for not imposing the death penalty.

On June 20 and July 10, 1980, the trial…

with whom Circuit Judges PREGERSON and WILLIAM A. NORRIS join, dissenting:

Between 1977 and 1992 one person was executed by the state of Arizona. United States Department of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment 1992, p. 9, Table 10. In the same fifteen year period 103 persons were sentenced to death in Arizona. Id., p. 11, Appendix Table 2. We are now informed by the Office of the Attorney General of Arizona that there are 117 persons under sentence of death in Arizona, and that no one has been executed in 1993 or 1994. On the face of these facts it appears that the administration of the death penalty in Arizona is so arbitrary as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States as made applicable to the state of Arizona by the Fourteenth Amendment.

This contention has not been advanced by Jeffers. But this court has the power when justice requires it to consider sua sponte questions of law “neither pressed nor passed upon by the court or administrative agency below.” Hormel v. Helvering, 312 U.S. 552, 557 , 61 S.Ct. 719, 721 , 85 L.Ed. 1037 (1941). Joining Judge Pregerson’s…