Michael Angelo Morales v. Jeanne S. Woodford, as Warden of San Quentin State Prison

*1163 ORDER

The opinion filed on July 28, 2003, is hereby amended. The clerk shall file the attached amended opinion and the attached dissent. The petition for rehearing and petition for rehearing en banc remains pending.

OPINION

Michael Morales, a state prisoner convicted of murder with special circumstances and sentenced to death, appeals the district court’s denial of his petition for a writ of habeas corpus.

We previously issued this opinion at 336 F.3d 1136 (2003). This version is identical to that one except for this paragraph, and the section on the lying-in-wait special circumstance, which appears in Part B of the Analysis section, pages 31 to 45.

Facts

A. The Murder and Investigation

Seventeen year-old Terri Winchell disappeared on a Thursday evening, January 8, 1981. Her mother lay sick in bed. Terri was getting ready to go out to pick up some food at a local restaurant. Before she left, she got a telephone call around 5:15 p.m. from Rick Ortega, a young man she knew through her friends. She spoke with him, then called her best friend Glenda Chavez. Terri told Glenda Chavez that Rick Ortega had asked her to go with him to the mall to pick out a present for his new…

concurring in part and dissenting in part:

The bedrock principles of our Eighth Amendment jurisprudence require that a state’s capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983). California’s scheme does not. The California lying-in-wait special circumstance, which triggers eligibility for the death penalty, has been expanded to such a degree that the line between premeditated murder and capital murder is but an illusory veil. To pass constitutional muster, a sentencing scheme must limit capital murders to a small realm within the universe of ordinary premeditated murders. But in California, like a Venn diagram of nearly overlapping circles, the confluence of lying-in-wait and other types of murder is virtually complete.

The Eighth Amendment analysis required in this challenge to the lying-in-wait provision confronts us with the intersection of a complex sentencing scheme and constitutional concepts that mean different things depending on the context. The questions raised in this appeal cannot be answered by a simplistic syllogism like “Not every…

388 F.3d 1159 Michael Angelo MORALES, Petitioner-Appellant, v. Jeanne S. WOODFORD, as Warden of San Quentin State Prison, Respondent-Appellee. No. 99-99020. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 13, 2001. Filed July 28, 2003. Amended October 21, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED David A. Senior, McBreen & Senior, Los Angeles, CA, for the appellant. Keith H. Borjon, Supervising Deputy Attorney General, Los Angeles, CA, for the appellee. Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. Before: FERNANDEZ, KLEINFELD, and McKEOWN, Circuit Judges. KLEINFELD, Circuit Judge: ORDER 1 The opinion filed on July 28, 2003, is hereby amended. The clerk shall file the attached amended opinion and the attached dissent. The petition for rehearing and petition for rehearing en banc remains pending. OPINION 2 Michael Morales, a state prisoner convicted of murder with special circumstances and sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus. 3 We previously issued this opinion at 336 F.3d 1136…