John Espiredion Valerio v. Jackie Crawford, Director of the Department of Prisons E.K. McDaniel Warden

with whom ■ Circuit Judges O’SCANNLAIN, T.G. NELSON, and GRABER join, Dissenting.

Today the majority reaches a claim that should not be reached' — whether the Nevada Supreme Court could or did cure the “depravity of mind” aspect of the “torture, depravity of mind and mutilation” aggravating circumstance — and holds, without warrant, that a state supreme court may not apply a narrowing construction to an unconstitutionally vague instruction and determine that it is supported by the evidence as applied, when the penalty-phase factfinder is a jury instead of a judge.

Neither this issue nor its companion, whether substantial evidence supports the aggravator, should be reached because the effect of the court’s other decision — to treat Valerio’s briefing as a request for a broadened Certificate of Appealability (COA), and to grant that request — is to revive a number of guilt-phase claims. Some of these claims are unexhausted. This means that Valerio’s petition is now a mixed petition, subject to dismissal under Rose v. Lundy, 455 U.S. 509, 522 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). The majority recognizes this in its remand of remaining claims, noting that the petition must be…

306 F.3d 742 John Espiredion VALERIO, Petitioner-Appellant, v. Jackie CRAWFORD, Director of the Department of Prisons; E.K. McDaniel, Warden, Respondents-Appellees. No. 98-99033. United States Court of Appeals, Ninth Circuit. Rehearing En Banc Granted June 12, 2001. Argued and Submitted En Banc September 24, 2001. Filed September 17, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Lawrence D. Wishart, Mary Beth Gardner, Reno, Nevada, for petitioner-appellant. Frankie Sue Del Papa, David F. Sarnowski, Robert E. Wieland, Dorothy Nash Holmes, Office of the Attorney General, Las Vegas, NV, for respondent-appellee. Franny A. Forsman, Michael Pescetta, Office of the Federal Public Defender, Las Vegas, NV, for Amicus Curiae. Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-N-96-00362-HDM. Before SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, RYMER, T.G. NELSON, THOMAS, GRABER, W. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER. OPINION WILLIAM A.…

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge FISHER; Dissent by Judge RYMER.

OPINION

In this capital case, petitioner John Es-piredion'Valerio appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . We decide as follows:

First, we reverse the district court’s dismissal of Valerio’s habeas petition as to the penalty phase of his trial. During the penalty phase, the jury was instructed to determine whether the murder with which Valerio was charged “involved torture, depravity of mind, or mutilation of the victim.” The jury concluded that this aggravating circumstance was present and, based in part on this conclusion, sentenced Valerio to death.

The jury instruction was clearly unconstitutional under Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980). On appeal from a denial of state post-conviction collateral relief, the Nevada Supreme Court sought to cure the error pursuant to the procedure endorsed in Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), overruled in part by Ring v. Arizona, — U.S. -, 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), by applying a narrowing…

Concurring.

Because neither party raised the application of Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), to “appellate factfinding” when the penalty-phase factfinder was a jury, and resolution of that issue is not necessary for our conclusion, I concur in the opinion of Judge Fletcher except section 11(C)(1).