Opinion
CV-19-00425-TUC-CKJ (MSA)
02-09-2022
Joe Leonard Lambright, Petitioner, v. David Shinn, Respondent.
REPORT AND RECOMMENDATION
Maria S. Aguilera United States Magistrate Judge
Petitioner Joe Leonard Lambright, an Arizona state prisoner, seeks habeas relief under 28 U.S.C. § 2254. For the following reasons, the Court will recommend that he be denied that relief.
Background
In 1982, a jury found Lambright guilty of first-degree murder, kidnapping, and sexual assault. State v. Lambright, 673 P.2d 1, 3 (Ariz. 1983). The trial court sentenced him to death for the murder conviction, to a 21-year term of imprisonment for the kidnapping conviction, and to a 21-year term of imprisonment for the sexual-assault conviction. Id. The trial court specified that the two prison terms were to run consecutively but did not state whether the death sentence was concurrent with or consecutive to those terms. State v. Lambright, 404 P.3d 646, 649 (Ariz.Ct.App. 2017). At the time of Lambright's offenses, Arizona law provided that, “[i]f multiple sentences of imprisonment are imposed on a person at the same time, . . . the sentence or sentences imposed by the court shall run concurrently unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.” Ariz. Rev. Stat. § 13-708 (1978).
All further references to § 13-708 are to the version that was in effect at the time of Lambright's offenses.
In the following decades, Lambright sought relief through a direct appeal, a state postconviction proceeding, and a federal habeas proceeding. Lambright v. Schriro, 490 F.3d 1103, 1106 (9th Cir. 2007) (per curiam). In 2007, the United States Court of Appeals for the Ninth Circuit agreed with Lambright that his counsel was ineffective during the penalty phase of his trial. Id. at 1128. Accordingly, the court vacated Lambright's death sentence and remanded for issuance of a writ of habeas corpus and a new sentencing proceeding. Id. On remand, the respondent requested that the district court modify a protective order so that the Pima County Attorney's Office (the agency that would be prosecuting Lambright's resentencing) could access materials produced during the habeas proceeding. Lambright v. Ryan, No. CV-87-235-TUC, 2009 WL 798926, at *1 (D. Ariz. Mar. 25, 2009). This request sparked what would be a years-long dispute, during which the resentencing proceeding could not go forward. See Lambright v. Ryan, No. CV-87-00235-TUC, 2015 WL 5607663, at *1 (D. Ariz. Sept. 24, 2015). The resentencing proceeding would not begin until late 2015. Lambright, 404 P.3d at 650.
In the state court, before trial, Lambright moved to preclude the prosecution from seeking the death penalty based on the delay before resentencing. Id. In the alternative, he moved to preclude the prosecution from introducing the trial testimony of Kathy Foreman, a deceased witness. Id. The trial court denied the motion. Id. At the end of the aggravation phase of trial, the jury found the presence of an aggravating circumstance, namely, that Lambright committed the murder in an especially cruel manner. Id. The penalty phase, however, ended in a mistrial because the jury could not agree whether to sentence Lambright to death. Id. Thereafter, the prosecution dropped its request for a death sentence, and the trial court set a resentencing hearing. Id.
With death no longer available as a punishment, the trial court was required to sentence Lambright to life with the possibility of parole after 25 years. Id. The parties contested whether the trial court could run the life term consecutive to Lambright's other sentences, which he had completed in 2012. Id. Lambright argued that, under Ariz. Rev. Stat. § 13-708, he could not, as a matter of law, be sentenced to a consecutive term. Id. He also argued that a consecutive term would deprive him of sentencing credit in violation of the Double Jeopardy Clause, and that the delay before resentencing had violated his right to due process. Id. The trial court rejected these arguments and imposed a consecutive term of imprisonment. Id. This means that Lambright, who was hoping for immediate parole eligibility, will not become eligible until 2037. See id. at 651.
The Arizona Court of Appeals affirmed in a published opinion, holding that Lambright's sentence violates neither state law nor the federal Constitution. Lambright, 404 P.3d 646. Lambright's requests for review by the Arizona Supreme Court and the United States Supreme Court were denied. Lambright v. Arizona, 139 S.Ct. 298 (2018) (mem.). This timely proceeding followed.
Legal Standard
This habeas action was filed after April 24, 1996, and is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Ochoa v. Davis, 16 F.4th 1314, 1325 (9th Cir. 2021). Under AEDPA, federal habeas courts have limited authority to grant relief on claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). A federal court must defer to the state court's decision on such a claim unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “This is a ‘highly deferential standard for evaluating state-court rulings.'” Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Lambright contends that AEDPA is unconstitutional because it suspends the writ of habeas corpus and violates the separation of powers. These arguments are foreclosed by circuit precedent. Crater v. Galaza, 491 F.3d 1119, 1130 (9th Cir. 2007).
Discussion
I. Denial of sentencing credit
Lambright contends that he was denied decades of sentencing credit in violation of the Double Jeopardy Clause when the trial court (in 2015) imposed a consecutive, rather than a concurrent, sentence. According to Lambright, because the trial court did not specify at his original sentencing (in 1982) whether his death sentence was concurrent or consecutive, that sentence was concurrent by default under Ariz. Rev. Stat. § 13-708. So, he says, he began serving time on his death sentence upon his arrest and should have received credit for that time when the sentence was converted to a term of imprisonment. The Arizona Court of Appeals held that there was no double-jeopardy violation because Lambright was not serving a concurrent death sentence. Lambright, 404 P.3d at 653-54.
Lambright's claim is partially non-cognizable. It starts from the premise that his death sentence was concurrent “as a matter of law” under § 13-708. The state court, however, held that Lambright's death sentence was not “presumptively concurrent” because § 13-708 “only applied to ‘sentences of imprisonment,'” and “a death sentence is not a sentence of imprisonment.” Id. at 652. The Court is bound to this construction of § 13-708, even considering that it was first announced on Lambright's direct appeal. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (first citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); and then citing Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). To the extent that Lambright seeks to challenge it, his claim is not cognizable. See Beaty v. Stewart, 303 F.3d 975, 986 (9th Cir. 2002) (holding that the petitioner's claim “that the trial court improperly imposed consecutive sentences in violation of Arizona law” was “not cognizable in federal habeas proceedings”); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (stating that “[t]he decision whether to impose sentences concurrently or consecutively” is not cognizable in federal habeas proceedings (citing Ramirez v. Arizona, 437 F.2d 119, 120 (9th Cir. 1971) (per curiam))).
Lambright, for his part, denies that his claim requires the Court to find that the Arizona Court of Appeals misconstrued or misapplied § 13-708. His argument lacks force, however, because his briefing makes clear that his claim succeeds only if the Court adopts a construction of § 13-708 that differs from the state court's-i.e., one that makes his original death sentence concurrent with his other sentences. He argues:
Under the provisions of Arizona law which governed [his] original sentencing, his death sentence on Count 1 was concurrent with his other counts, and, pursuant to [Supreme Court precedent], the [Constitution requires that he “must be fully ‘credited'” for time spent incarcerated under that sentence after it was vacated and replaced with a new sentence.(Doc. 16 at 29 (citations omitted).) Put simply, the first step of Lambright's claim is that his death sentence was concurrent under § 13-708; the second step is that he was denied credit for time served on that concurrent sentence. The Arizona Court of Appeals held that he is wrong as to the first step. Lambright, 404 P.3d at 652. That determination is binding and unreviewable.
To the extent that Lambright raises a cognizable double-jeopardy claim, he fails to establish that the rejection of his claim was contrary to, or involved an unreasonable application of, Supreme Court precedent. The Double Jeopardy Clause “requires that punishment already exacted . . . be fully ‘credited' in imposing sentence upon a new conviction for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 718-19 (1969) (footnote omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). As a matter of state law, Lambright began serving time on his murder conviction in 2012. Therefore, the Arizona Court of Appeals could reasonably conclude that there was no double-jeopardy violation when Lambright was denied credit for time served since his arrest in 1981. Lambright, 404 P.3d at 653-54.
Lambright also argues that § 2254(d)(1) is satisfied because the Arizona Court of Appeals “unreasonably refuse[d] to extend [Pearce ] to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 408 (2000). However, the Supreme Court has since rejected the unreasonable-failure-to-extend rule. White v. Woodall, 572 U.S. 415, 426 (2014).
Lambright also fails to establish that the rejection of his claim was based on an unreasonable determination of the facts. Couching a legal issue as one of fact, he argues that the date on which he began serving his death sentence is an historical fact which the state court misconstrued. The date on which his sentence began, however, depended on whether his sentence was concurrent. That is a question of state law, and the state court answered it in the negative. Thus, this case is unlike Sumrell v. Mississippi, 403 Fed.Appx. 959 (5th Cir. 2010) (per curiam), which Lambright cites for support. In that case, there was a dispute about an historical fact (i.e., on which date was the petitioner's probation revoked) that was resolved without regard to the operation of state sentencing law. Id. at 961-62.
The Court will recommend that Lambright's claim be denied.
II. Application of an unexpected and indefensible construction of state law
Lambright contends that his due-process rights were violated when the Arizona Court of Appeals affirmed his sentence based on an “unexpected and indefensible” construction of Ariz. Rev. Stat. § 13-708. He says that, prior to the decision in his case, Arizona courts agreed that the phrase “sentence of imprisonment” included death sentences. Therefore, he argues, the Arizona Court of Appeals' abrupt departure from that understanding constitutes a violation of due process.
As a preliminary matter, there is a question whether Lambright's claim should be reviewed de novo or under 28 U.S.C. § 2254(d). In his petition, Lambright argues as if his claim is subject to § 2254(d). In his reply briefs, though, he argues that his claim was never adjudicated on the merits, meaning it should be reviewed de novo. This issue is ultimately immaterial, because Lambright's claim fails under de novo review, the standard more favorable to him. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (stating that a petitioner's claim can always be denied under de novo review when it is unclear whether AEDPA deference applies).
Lambright's claim is based on Bouie v. City of Columbia, 378 U.S. 347 (1964). In that case, the defendants, after refusing to leave a restaurant when asked to do so, were convicted under a statute prohibiting “entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry . . . .” Id. at 349-50. On appeal, they argued that their conduct did not violate the statute, since they received no notice prohibiting their entry. Id. at 350. The state supreme court disagreed, holding that the statute “cover[ed] not only the act of entry on the premises of another after receiving notice not to enter, but also the act of remaining on the premises of another after receiving notice to leave.” Id. The Supreme Court reversed, holding that the statute did not provide the defendants with fair notice that their conduct was a crime, and that affirming their convictions based on an unforeseeable expansion of the statute violated due process. Id.
The Ninth Circuit has explained that Bouie applies in only two situations. It applies to judicial constructions like the one in Bouie, i.e., a construction that broadens the element of a crime, thus making the defendant's conduct illegal although it was legal when performed. Webster v. Woodford, 369 F.3d 1062, 1069 (9th Cir. 2004). It also applies to constructions of statutory provisions that “operate as ‘the functional equivalent of an element of a greater offense.'” Clark v. Brown, 450 F.3d 898, 911 (9th Cir. 2006) (quoting Webster, 369 F.3d at 1068). These include special or aggravating circumstances that make a defendant eligible for the death penalty or a sentencing enhancement. See id. at 902, 912 (special circumstance that made the defendant eligible for the death penalty); Webster, 369 F.3d at 1066, 1073 (same); Aponte v. Gomez, 993 F.2d 705, 707-08 (9th Cir. 1993) (aggravating circumstance that made the defendant eligible for a sentencing enhancement); Oxborrow v. Eikenberry, 877 F.2d 1395, 1397, 1399-1400 (9th Cir. 1989) (same).
Importantly, the Ninth Circuit has made clear that “Bouie does not apply to sentencing schemes.” Webster, 369 F.3d at 1069. Thus, in United States v. Newman, 203 F.3d 700, 701-03 (9th Cir. 2000), the Supreme Court's construction of a sentencing statute was applied retroactively to deny a defendant credit for time spent in residential treatment while on pretrial release. According to the Newman court, “the due process concerns raised by Bouie [were] inapplicable,” since the Supreme Court's decision “interpreted] a federal statute concerning the calculation of the length of a term of imprisonment without reference to the issue of the defendant's criminal liability.” Id. at 703; see United States v. Mohamed, 459 F.3d 979, 984 (9th Cir. 2006) (affirming the retroactive application of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), although it resulted in a longer sentence for the defendant).
In this case, the Arizona Court of Appeals' construction of § 13-708 did not increase the scope of Lambright's criminal liability. Nor did the statute concern the “functional equivalent of an element of a greater offense.” Clark, 450 F.3d at 911 (quoting Webster, 369 F.3d at 1068). The statute was merely part of Arizona's sentencing scheme. Therefore, the due-process principles articulated in Bouie do not apply.
As a final matter, Lambright argues that the Arizona Court of Appeals' construction also violates the Ex Post Facto Clause. He is wrong; that provision, “by its own terms, does not apply to courts.” Rogers v. Tennessee, 532 U.S. 451, 460 (2001). Relatedly, Lambright errs in supporting his due-process claim with caselaw involving ex post facto violations. In Bouie, the Supreme Court compared retroactive judicial constructions to ex post facto laws, but it did not “incorporate jot-for-jot the specific categories of [ex post facto prohibitions] into due process limitations on the retroactive application of judicial decisions.” Rogers, 532 U.S. at 459. Consequently, caselaw holding that the Ex Post Facto Clause is violated when a law retroactively increases a punishment, see Peugh v. United States, 569 U.S. 530 (2013), does not support Lambright's claim that the Due Process Clause is violated when a judicial decision does the same thing.
The Court will recommend that Lambright's claim be denied.
III. Sentence based on unreliable information
Lambright contends that his due-process rights were violated when the trial court resentenced him based on unreliable information. He says that his counsel was ineffective during the guilt phase of trial, such that evidence introduced during that phase was unreliable for purposes of the sentencing phase. He also says that the delay before resentencing rendered the record unreliable because multiple witnesses died or otherwise became unavailable during that period. Lambright places special emphasis on the death of Kathy Foreman, who fully participated in his crimes and received immunity in exchange for her testimony against him. The Arizona Court of Appeals held that Foreman's testimony was not unreliable due to counsel's ineffectiveness, because counsel was found to be ineffective only during the penalty phase, not during the guilt phase, when he crossexamined Foreman. Lambright, 404 P.3d at 656. The state court did not address the other parts of Lambright's unreliability challenge.
To begin, the Supreme Court has never held that due process prohibits judges from considering “unreliable” information during sentencing. As such, Lambright cannot show that the rejection of his claim was contrary to, or involved an unreasonable application of, Supreme Court precedent. See Turner v. McEwen, 819 F.3d 1171, 1176 (9th Cir. 2016) (stating that § 2254(d)(1) cannot be satisfied if there is no clearly established federal law). Lambright relies on Townsend v. Burke, 334 U.S. 736 (1948), and United States v. Tucker, 404 U.S. 443 (1972), but those cases concerned information that was verifiably and materially false, not merely unreliable. Townsend, 334 U.S. at 739-41 (reversing because the trial judge believed that the defendant had eight prior convictions when he had five); Tucker, 404 U.S. at 444, 447 (reversing because the trial judge relied on two convictions that were “conclusively determined” to be invalid). Indeed, neither case even mentions the concept of “reliability.” See Beckles v. United States, 137 S.Ct. 886, 896 (2017) (citing Townsend as “holding that due process is violated when a court relies on ‘extensively and materially false' evidence to impose a sentence on an uncounseled defendant”).
The rule on which Lambright relies (that a defendant cannot be sentenced based on unreliable information) was created by the Ninth Circuit as an “exten[sion]” to Townsend. United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971); see United States v. Franklin, 18 F.4th 1105, 1116 (9th Cir. 2021) (stating that Weston “extended” Townsend to include unreliable information). “Circuit precedent derived from an extension of a Supreme Court decision is not clearly established federal law as determined by the Supreme Court.” Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006) (internal quotation marks omitted) (quoting Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005)).
Lambright also fails to establish that the Arizona Court of Appeals' decision was based on an unreasonable determination of the facts. He identifies three supposed errors of fact, two of which are based on a distortion of the following language:
Because the trial court declared a mistrial when the jury could not reach a verdict on whether to sentence Lambright to death, whether the trial court had erred in admitting Foreman's testimony during the aggravation
phase of that resentencing trial is moot. Additionally, Lambright did not object to the court's consideration of Foreman's trial testimony for purposes of the resentencing hearing before the court, nor would he have had any basis for doing so. The rules regarding the admissibility of evidence at trial do not apply at a sentencing hearing such as the one that resulted in the consecutive life term.Lambright, 404 P.3d at 655 (internal citations omitted).
Beginning with the first sentence, Lambright argues that the state court “unreasonably determined that the question of the unreliability of Foreman's testimony was ‘moot' because the resentencing jury ultimately hung and a mistrial was declared.” That is not what the state court said. The state court observed, correctly, that any error in admitting Foreman's testimony at trial was moot because the jury did not reach a verdict. Id. The state court did not say that the reliability of Foreman's testimony was moot.
Moving to the second sentence, Lambright says that the state court erroneously found that “no objection was raised to Foreman's testimony,” and that “there was no basis for objecting to the resentencing court's reliance on Foreman's testimony.” This argument ignores relevant context. As Lambright himself acknowledges, admissibility and reliability are distinct inquiries. See Tucker, 404 U.S. at 446-47. As the third sentence makes clear, the state court was discussing admissibility, not reliability. Indeed, and further disproving Lambright's argument, the Arizona Court of Appeals acknowledged that the trial court could consider only “reliable, relevant evidence” when resentencing Lambright. Lambright, 404 P.3d at 656 (emphasis added). It also acknowledged that Lambright objected to Foreman's testimony on the ground that it “was not only inadmissible hearsay, but it was unreliable” as well, and it held that Lambright's “due process and . . . Sixth Amendment rights” were not “violated by the [trial] court's apparent consideration of Foreman's testimony” at sentencing. Id. Contrary to Lambright's argument, the state court recognized that he objected on constitutional grounds.
The third supposed error relates to the following language:
For similar reasons, we reject Lambright's related claim that the testimony was not only inadmissible hearsay, but it was unreliable because Lambright's counsel was found to have been ineffective. Again, this relates
to the admissibility of Foreman's testimony. Moreover, as the state points out, the Ninth Circuit found Lambright's trial counsel had been ineffective during the penalty phase of the trial, but not the guilt phase, which is when Lambright cross-examined Foreman.Id. (citations omitted). Lambright says that because the law on aggravation evolved after his trial in 1982, “[t]he fact that [counsel] was ‘effective'” at trial “has no bearing on whether his cross-examination was sufficient based on the [aggravation] standards of 2015.” Lambright argues that the Arizona Court of Appeals' failure to address this supposed issue constitutes an unreasonable determination of the facts.
This argument is unavailing. At bottom, Lambright contends merely that the record could have been more complete, which is probably true of every sentencing proceeding. Under the Ninth Circuit's precedents, however, Lambright must affirmatively establish that the information actually considered by the trial court was unreliable. Undoubtedly, there are situations where concrete facts outside the record demonstrate that information in the record is incorrect or unreliable. See, e.g., Tucker, 404 U.S. at 447-49 (reversing because the trial judge considered information that was later determined to be invalid). Here, however, Lambright does not offer facts; he offers speculation about how changes to the law might have affected information in the record. It was not unreasonable for the Arizona Court of Appeals to ignore such conjecture.
To the extent that Lambright's claim was adjudicated on the merits, it fails under 28 U.S.C. § 2254(d). Moreover, the entirety of Lambright's claim fails under de novo review. “Challenged information is deemed false or unreliable if it lacks ‘some minimal indicium of reliability beyond mere allegation.'” United States v. Vanderwerfhorst, 576 F.3d 929, 936 (9th Cir. 2009) (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984)). There are several components to Lambright's argument that the trial court considered unreliable information. None of them are persuasive.
Lambright initially says that his counsel was ineffective during the guilt phase of his trial, such that “evidence generated incident to that ineffectiveness” was unreliable and “could not constitutionally form the basis of [his] sentence.” In support of this contention, he points out various conduct by his counsel that was supposedly deficient. However, he does not explain why that conduct was deficient. This omission is significant for multiple reasons. First, counsel's conduct is presumptively reasonable. Strickland v. Washington, 466 U.S. 668, 689 (1984). Second, counsel has wide discretion in handling the matters that Lambright believes were mishandled. See id. at 690-91 (decision not to investigate); United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (opening statement); Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (decision whether, and how, to cross-examine witnesses); Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam) (closing argument). Finally, Lambright failed to show, in an earlier proceeding, that his counsel was ineffective during the guilt phase of trial. Lambright v. Stewart, 5 Fed.Appx. 712, 713 (9th Cir. 2001). Lambright cannot show ineffective assistance merely by identifying acts of counsel. That is all he has done. Moreover, even if he had shown ineffective assistance, that would not necessarily mean that evidence introduced at trial was unreliable for purposes of sentencing.
Next, Lambright makes various attacks on Foreman's testimony. He says that, as Foreman was an “unindicted co-defendant” who had incentive to testify again him, her testimony was “inherently unreliable.” This is correct, but only as a starting point. Franklin, 18 F.4th at 1114 (explaining that “a statement by a coconspirator that inculpates the defendant ‘is inherently unreliable'” (quoting United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995))). Lambright is wrong in contending that Foreman's testimony remained unreliable even after his counsel cross-examined her at trial. “Cross-examination is the ‘gold standard' of procedural reliability.” Id. at 1126 (quoting Murdoch v. Castro, 609 F.3d 983, 1003 (9th Cir. 2010) (en banc) (Kozinski, C.J., dissenting)); see Mancusi v. Stubbs, 408 U.S. 204, 216 (1972) (holding that testimony given in an earlier trial, and read into the record during a second trial, was reliable because it was subject to cross-examination). It is sufficient to render even an accomplice's testimony reliable. United States v. Flores, 725 F.3d 1028, 1038 (9th Cir. 2013).
Lambright also complains that the jury and the trial court were unable to assess Foreman's demeanor. He also raises this complaint with respect to the prosecution's medical examiner and forensic anthropologist, whose testimony was read into the record, and with respect to some of his own witnesses, whose testimony was given through video and audio recordings. No doubt, the opportunity to observe a witness testify can be an important factor in determining reliability. The presence of such an opportunity, however, is not essential. See Fed.R.Evid. 804 advisory committee notes to 1972 proposed rules (stating that “demeanor evidence” is “lacking with all hearsay exceptions”). At sentencing, due process requires only that hearsay have “some minimal indicium of reliability.” Vanderwerfhorst, 576 F.3d at 936 (emphasis added) (quoting Ibarra, 737 F.2d at 827). The testimony of the prosecution's witnesses met this standard because Lambright had the opportunity to confront and cross-examine them at trial. As for his own witnesses, Lambright (unsurprisingly) stops short of arguing that their testimony was unreliable. His mere preference for live testimony does not show that there was a due-process violation.
Lambright's counsel did not cross-examine the prosecution's medical examiner or forensic anthropologist, but this did not render their testimony unreliable. Reliability can be established if the defendant had, as Lambright did, “a prior opportunity for crossexamination.” Crawford v. Washington, 541 U.S. 36, 68-69 (2004) (emphasis added).
To further his argument that Foreman's testimony was unreliable, Lambright attempts to analogize his case to United States v. McGowan, 668 F.3d 601 (9th Cir. 2012), and United States v. Hanna, 49 F.3d 572 (9th Cir. 1995). These cases are inapposite. In McGowan, the testimony in question was found unreliable because it was given during an unrelated trial where “no one representing McGowan's interests . . . had an opportunity to cross-examine [the witness] in order to test the veracity of his accusations.” 668 F.3d at 607. In Hanna, the challenged testimony was found unreliable because, among other things, the trial court “severely restricted the scope of both the government's direct examination and Hanna's cross-examination of [the witness] and, despite numerous objections from both the government and Hanna, consistently upheld [the witness's] repeated invocations of the Fifth Amendment.” 49 F.3d at 575, 577-78. These extreme circumstances were not present in Lambright's case.
Unable to show that the information actually considered by the trial court was unreliable, Lambright turns his attention to information that was not considered by the trial court. He says that the law on aggravation changed after his original trial and sentencing, and he complains that, because multiple witnesses died before his resentencing, he was unable to question them as relevant to the new law. “We can never know,” he says, “how [the deceased witnesses] would have responded to a line of questioning tailored to [the law on aggravation] as it existed at the time of resentencing.” Lambright also says that Foreman's credibility was “artificially inflat[ed]” because he could not impeach her with evidence that was discovered only after she testified at his first trial.
Again, instead of offering facts that demonstrate the unreliability of information in the record, Lambright merely points out how the record could have been more complete. This does not change the fact that the witnesses' testimony, as given in 1982, had at least “minimal indici[a] of reliability.” Vanderwerfhorst, 576 F.3d at 936 (quoting Ibarra, 737 F.2d at 827). Indeed, and unsurprisingly, Lambright cites no authority holding that a witness's trial testimony can be found unreliable based on speculation about what the witness might have said at a second trial.
In the related context of preindictment delay, courts have held that a defendant cannot establish prejudice based on “generalized speculation as to what lost or deceased witnesses would have said.” United States v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007).
The Court will recommend that Lambright's claim be denied.
IV. Introduction of inadmissible hearsay during trial
Lambright contends that his confrontation rights were violated when Foreman's trial testimony was read into the record during his resentencing proceeding. The Arizona Court of Appeals rejected this claim on the merits without explanation. Lambright, 404 P.3d at 656. This claim need not be analyzed through the lens of AEDPA deference, however, because Lambright is not entitled to relief even under de novo review.
“The U.S. Supreme Court has never established a right to confront witnesses at sentencing.” Smith v. Ryan, 823 F.3d 1270, 1279 (9th Cir. 2016). To the contrary, the Supreme Court has affirmatively “held that the Confrontation Clause does not bar courts from considering unconfronted statements during sentencing proceedings.” Sivak v. Hardison, 658 F.3d 898, 927 (9th Cir. 2011) (citing Williams v. New York, 337 U.S. 241 (1949)). Consequently, there are no facts Lambright can prove to establish a violation of his confrontation rights at his resentencing. Lambright's reliance on Crawford v. Washington, 541 U.S. 36 (2004), is misplaced, because “Crawford speaks to trial testimony, not sentencing.” United States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006). His reliance on State v. McGill, 140 P.3d 930 (Ariz. 2006), is also misplaced; to obtain habeas relief, he must prove that his confinement violates federal law. 28 U.S.C. § 2254(a).
The Court will recommend that Lambright's claim be denied.
V. Delay before resentencing
Lambright contends that his due-process rights were violated by the eight-year delay before his resentencing. He complains that multiple witnesses died or became unavailable during the delay, prejudicing his ability to make an effective mitigation presentation. In addition, he argues that the delay was the result of bad-faith conduct by the respondent in his previous habeas case. The Arizona Court of Appeals rejected this claim because Lambright pointed to no authority holding that “habeas proceedings defended in good faith can result in a denial of due process simply because they take a long time.” Lambright, 404 P.3d at 657.
Lambright's claim is not supported by clearly established federal law. See Turner, 819 F.3d at 1176 (stating that § 2254(d)(1) cannot be satisfied if there is no clearly established federal law). He relies on United States v. Marion, 404 U.S. 307 (1971), and United States v. Lovasco, 431 U.S. 783 (1977), but those cases involved preindictment delay, not delay before sentencing. More importantly, the Supreme Court expressly declined, in both cases, to articulate a standard for determining when preindictment delay violates due process. Marion, 404 U.S. at 324-25; Lovasco, 431 U.S. at 796-97. The determination as to what standard applies has divided lower courts. Compare United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985) (concluding that the standard does not require the defendant to prove intentional or reckless conduct by the government), with United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996) (en banc) (reaching the opposite conclusion); see Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996) (noting the existence of a circuit split). This division supports finding that the law concerning due process and delay is not clearly established. See Ponce v. Felker, 606 F.3d 596, 605-06 (9th Cir. 2010) (stating that a circuit split supports the conclusion that the law is not clearly established); New v. Uribe, 532 Fed.Appx. 743, 744 (9th Cir. 2013) (holding that, “[i]n light of the lack of a clear test,” the state court did not unreasonably apply Marion and Lovasco).
Lambright also relies on Betterman v. Montana, 578 U.S. 437 (2016). Although this case concerned a delay before sentencing, it does not help Lambright's claim. In Betterman, the Supreme Court acknowledged in dicta that a sentencing-delay claim is cognizable under the Due Process Clause. Id. at 448. But, as the petitioner had advanced no such claim, the Supreme Court declined to state what standard would apply. Id. at 448 & n.12 (listing factors that “may” be relevant under the standard). Indeed, in her concurring opinion, Justice Sotomayor explained that the standard for determining whether sentencing delay violates due process “is an open [question].” Id. at 450 (Sotomayor, J., concurring).
Lambright also fails to establish that the Arizona Court of Appeals' decision was based on an unreasonable determination of the facts. He argues that the state court erred in finding that the protracted litigation over the protective order was pursued in “good faith,” because the dispute started only after the respondent improperly disclosed privileged information to the Pima County Attorney's Office. Lambright also points out that the respondent's request to modify the protective order was ultimately unsuccessful. Based on these factors, Lambright contends that the state court's finding is “unsupported by the record and therefore an unreasonable determination of the facts.”
However, at least three other factors support the state court's determination that the responded acted in good faith. The respondent submitted evidence showing that the disclosure to the Pima County Attorney's Office was inadvertent. (Doc. 31-1 at 17); Lambright v. Ryan, No. CV-87-235-TUC, 2010 WL 1780878, at *4 (D. Ariz. May 4, 2010). In addition, early in the dispute, the district judge who entered the protective order informed the parties that he did not intend for the order to be as broad as it was. (Doc. 31-1 at 15); Lambright v. Ryan, No. CV-87-235-TUC, 2009 WL 798926, at * 1 (D. Ariz. Mar. 25, 2009). Regardless of the ultimate outcome, this undoubtedly signaled to the respondent that the request to modify the order had merit. Finally, the Ninth Circuit affirmed the district court's finding that, although there was a violation of the order, the violation was inadvertent and warranted only a slight sanction (a non-sanction, in effect). Lambright v. Ryan, 698 F.3d 808, 825-26 (9th Cir. 2012). Considering these factors, the Court cannot conclude that the Arizona Court of Appeals' factual determination was “objectively unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (emphasis added) (citing 28 U.S.C. § 2254(d)(2)).
The Court will recommend that Lambright's claim be denied.
* * *
IT IS RECOMMENDED that Petitioner Joe Leonard Lambright's amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 16) be denied.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-19-00425-TUC-CKJ.