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Djerf v. Ryan

United States Court of Appeals, Ninth Circuit

July 24, 2019

Richard Kenneth Djerf, Petitioner-Appellant,
Charles L. Ryan, Respondent-Appellee.

          Argued and Submitted March 26, 2019 San Francisco, California

          Appeal from the United States District Court No. 2:02-cv-00358-JAT for the District of Arizona James A. Teilborg, District Judge, Presiding

          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.

          Ginger Jarvis (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

          Before: M. Margaret McKeown, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [*]

         Habeas Corpus / Death Penalty

         The 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.

         Following a period of appointed representation, petitioner waived counsel and represented himself. He entered guilty pleas, and counsel resumed representation for sentencing.

         The 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.

         The 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.

         Finally, 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.



         Richard 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.

         Factual Background[1]

         Djerf 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.

         Several 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.

         Shortly 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.

         Djerf 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.

         Over the next several days, Djerf described the murders to his girlfriend and two other friends. Djerf was arrested shortly after.

         Procedural Background

         A grand 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.

         At a 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 capacity.

         A few 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.

         Several 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 ...

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