Ceja

Opinion by Judge FARRIS; Partial Concurrence and Partial Dissent by Judge FLETCHER.

Jose Jesus Ceja is on death row in Arizona. He appeals the district court’s denial of his habeas corpus petition. We have jurisdiction. 28 U.S.C. §§ 1291 and 2253. We affirm.

BACKGROUND

In 1974, Ceja was tried, convicted and sentenced to death for the drug related murders of Linda and Randy Leon. The Arizona Supreme Court reversed his conviction and sentence, primarily because of hearsay problems with ballistics evidence. State v. Ceja, 113 Ariz. 39 , 546 P.2d 6 (1976). In 1976, Ceja was retried, convicted and again sentenced to death upon the finding of two statutory aggravating factors. The Arizona Supreme Court, after conducting an independent review of the record, found insufficient evidence for one of the aggravating factors. It nonetheless affirmed the death penalty on the basis of the second factor, that the crime was “committed in an especially cruel, heinous and depraved manner.” State v. Ceja, 115 Ariz. 413 , 565 P.2d 1274, 1278 (1977).

After the Supreme Court decided Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the Arizona Supreme Court ordered the…

concurring in part, dissenting in part:

I concur in the judgment to the extent the majority opinion affirms the district court’s denial of Ceja’s habeas challenge to his conviction. I respectfully dissent from the affir-mance of Ceja’s sentence.

I would hold that the Arizona courts’ failure to find the F(6) aggravating factor beyond a reasonable doubt was constitutional error that had a substantial and injurious effect on the sentence. I disagree with the majority that we may presume that the Arizona courts found the F(6) factor beyond a reasonable doubt. Nowhere in the trial court or state supreme court’s opinions is there any reference to having found the factor beyond a reasonable doubt. Arizona’s death penalty statute does not by its terms provide that aggravating factors must be proven beyond a reasonable doubt. See *1256 State v. Jordan, 126 Ariz. 283 , 614 P.2d 825, 828 , cert. denied, 449 U.S. 986 , 101 S.Ct. 408 , 66 L.Ed.2d 251 (1980) (“The statute does not indicate the degree of certainty with which these circumstances must be established.”). It was not until one month after Ceja’s sentence was affirmed by the Arizona Supreme Court that the Arizona Supreme Court first…