Gregory Dickens v. Charles L. Ryan

Concurring and Dissenting opinion filed by Circuit Judge REINHARDT.

MEMORANDUM *

Gregory Dickens appeals the district court’s denial of his petition for writ of habeas corpus. He raises, for purposes of this memorandum, three uncertified issues. The district court had jurisdiction to consider Dickens’s habeas petition pursuant to *901 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

I.

We decline to issue a certificate of appealability (COA) on Dickens’s claim that 28 U.S.C. § 2254 (i) is unconstitutional. Habeas claims presented to federal courts must be presented first to the state courts. See Picard v. Connor, 404 U.S. 270, 275 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). Here, Dickens concedes that he did not exhaust the claim in state court. Therefore, a reasonable jurists would not “find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000).

II.

We decline to issue a COA on Dickens’s claim that the Arizona Supreme Court’s decision to apply Arizona’s “especially cruel” aggravating factor to the murder of Bryan Bernstein was…

concurring in part and dissenting in part:

' I concur as to Parts I and III. Because, as stated in my dissent to the opinion, I would grant relief on Dickens’ En-mund/Tison claim, and hold that Dickens is not death eligible, I would not reach any other issue regarding his death sentence in this disposition, including the issue addressed in Part II.

facts. Even if Dickens’s claim had merit, it only applies to one of the two death

sentences (for the murder of Bryan Bernstein, not for the murder of Laura

Bernstein). Therefore, Dickens would still be eligible for the death penalty for the

murder of Laura Bernstein. Additionally, the Arizona trial court determined (and

the Arizona Supreme Court affirmed) that Dickens was eligible for death “without

2 regard to whether the offense was committed in an especially heinous, cruel or

depraved manner” given the other aggravating circumstances (which included (1)

commission of the “offense . . . in the expectation of the receipt of anything of

pecuniary value,” and (2) Dickens’s “convict[ion] of one or more other homicides,

which were committed during the commission of [the] offense”). Therefore,

Dickens failed to demonstrate that the alleged constitutional error had a

“substantial and injurious effect or influence” on his sentence meriting relief.

Calderon v. Coleman, 525 U.S. 141, 145–46 (1998). Because reasonable jurists

would not find the Arizona court’s assessment of this claim debatable or wrong, we

decline to issue a COA on this issue. Slack, 529 U.S. at…