and Submitted March 26, 2019 San Francisco, California
from the United States District Court No. 2:02-cv-00358-JAT
for the District of Arizona James A. Teilborg, District
Therese Michelle Day (argued) and Michael L. Burke, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Petitioner-Appellant.
Jarvis (argued), Assistant Attorney General; Lacey Stover
Gard, Chief Counsel; Mark Brnovich, Attorney General; Office
of the Attorney General, Phoenix, Arizona; for
Before: M. Margaret McKeown, Ronald M. Gould, and Sandra S.
Ikuta, Circuit Judges.
Corpus / Death Penalty
panel affirmed the district court's dismissal of an
Arizona state prisoner's 28 U.S.C. § 2254 habeas
corpus petition challenging his conviction by guilty plea for
four counts of first-degree murder and his capital sentence.
a period of appointed representation, petitioner waived
counsel and represented himself. He entered guilty pleas, and
counsel resumed representation for sentencing.
panel held that counsel did not provide constitutionally
ineffective pre-trial assistance by failing adequately to
communicate with petitioner or visit him in jail, or to
diligently interview witnesses, review discovery, and examine
evidence. The panel concluded that, under any standard of
review, counsel's conduct was not objectively
unreasonable. Accordingly, petitioner's claims of
involuntary waiver of counsel and invalid guilty pleas,
premised on ineffective pre-trial assistance, failed.
Further, petitioner's procedural default of the
ineffective assistance claims was not excused.
panel affirmed the district court's denial of
petitioner's claim that counsel provided ineffective
assistance during sentencing by failing to investigate,
develop, and present additional mitigation evidence related
to his family background and mental health. The panel
concluded that the state post-conviction court did not
unreasonably apply Supreme Court precedent in holding that
there was no ineffective assistance of counsel during
sentencing, and the district court did not abuse its
discretion in denying petitioner's request for an
evidentiary hearing on that claim.
any error in the Arizona court's impermissibly ignoring
mitigating evidence of petitioner's family background
because it lacked a causal nexus to his crimes was harmless.
K. Djerf killed the mother, father, brother, and sister of a
former friend to avenge a petty theft. He was promptly
arrested and charged with numerous crimes. After a year and a
half of appointed representation, he waived counsel and
represented himself. Djerf pleaded guilty to four counts of
first-degree murder, and counsel resumed representation for
sentencing. The trial judge imposed a capital sentence for
each of the murder convictions. The Arizona Supreme Court did
the same on de novo review. Arizona courts denied Djerf's
requests for post-conviction relief, and the district court
dismissed his federal habeas petition. We affirm.
and Albert Luna, Jr. were friends from their job at the local
supermarket, but in early 1993 Albert stole several
electronics and a firearm from Djerf's apartment. Djerf
reported the incident and his suspicions about Albert's
involvement to the police, who took no action. Djerf sought
revenge several months later. Late one morning, Djerf arrived
at the Luna family home with a handgun, knife, latex gloves,
handcuffs, and fuse cord, using a vase with fake flowers as a
ruse to gain entry. Albert's mother and five-year-old
brother were home; Djerf bound them and asked the mother
whether she or her young son should die first and whether she
knew Albert's whereabouts. Djerf briefly untied the
mother, forcing her to load electronics and other valuables
from the home into the family car.
hours later, Albert's eighteen-year-old sister came home.
Djerf bound and gagged her, cut off her clothes, and raped
her before repeatedly stabbing her in the chest and head and
slitting her throat. Djerf then told Albert's mother what
he had done to her daughter.
after, Albert's father came home. Djerf handcuffed him
and forced him to crawl on all fours and lay face down on his
bed. Djerf struck him in the head several times with a
baseball bat, removed his handcuffs, bound his hands with
tape, and left him for dead. Djerf told the mother that he
had killed her husband.
then attempted, but failed, to snap the boy's neck and to
electrocute him with a stripped electrical wire. The father,
who had survived the earlier beating, charged and stabbed
Djerf with a pocketknife. During the ensuing struggle, Djerf
stabbed the father and then fatally shot him six times in
front of the mother and boy. Djerf asked the mother whether
she wanted to watch the boy die, or for him to watch her die,
before shooting both in the head. He covered the bodies and
the house with gasoline, turned on two stove burners, and
placed cardboard and a rag on the stove, before fleeing the
house in the family's car. The cardboard and rag never
ignited. When Albert returned to the house, he discovered the
gruesome scene and notified the police.
the next several days, Djerf described the murders to his
girlfriend and two other friends. Djerf was arrested shortly
jury charged Djerf with four counts of first-degree murder,
as well as first-degree burglary, kidnapping, sexual assault,
aggravated assault, attempted arson, theft, and unlawful use
of a prohibited weapon. Michael Vaughn and Alan Simpson were
appointed as counsel, and they represented Djerf at numerous
hearings over the next year and a half. In February 1995,
Djerf wrote to the trial judge to express his displeasure
with the frequency of counsel's communication, their
responsiveness, and their efforts to keep him apprised of
trial strategy. Djerf requested that Vaughn and Simpson be
withdrawn as counsel and asked to represent himself.
hearing several days later, the judge questioned Djerf at
length to ensure he understood the disadvantages of
self-representation and the severity of the potential
penalties he faced. Counsel expressed their belief that Djerf
was competent, but strongly advised against
self-representation. The judge reiterated this advice, but
nonetheless concluded Djerf knowingly, intelligently, and
voluntarily waived his right to counsel, accepted the waiver
of counsel, and appointed Vaughn and Simpson in an advisory
weeks later, the State requested an evaluation of Djerf's
competence. In a prescreening report, Dr. Jack Potts
concluded that Djerf understood the nature of the charges and
possible penalties, the pending proceedings, his
constitutional rights, and the necessary waiver of those
rights if he entered a guilty plea. According to the report,
Djerf understood he faced a "far greater burden" if
he represented himself, but believed he had "very little
to lose" given that the case against him was so strong.
The report concluded that Djerf was competent to represent
himself and that further evaluation of his competency was
unnecessary. The trial judge agreed.
months later, Djerf sent a letter to the prosecutor offering
to accept the maximum non-capital sentences on all charges in
exchange for an agreement not to pursue the death penalty,
though he admitted he had little negotiating leverage. The
prosecutor declined, affirming the State's intention to
pursue death sentences on the murder charges. The prosecutor
offered to dismiss all other charges if Djerf would plead
guilty to the murder charges "with no agreements as to
sentence." Djerf consulted with Vaughn and decided ...