FILED
NOT FOR PUBLICATION AUG 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID SCOTT DETRICH, No. 08-99001
Petitioner - Appellant, D.C. No. 4:03-cv-00229-DCB
v.
MEMORANDUM **
CHARLES L. RYAN,* OF ARIZONA
DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted January 27, 2010
Pasadena, California
Before: PREGERSON, McKEOWN, and PAEZ, Circuit Judges.
David Detrich—sentenced to death by an Arizona judge after a jury
convicted him of murder, kidnapping, and sexual abuse—petitioned for habeas
*
Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relief in federal district court. In a separate opinion filed today, we reversed the
district court’s denial of habeas relief on Detrich’s claim of ineffective assistance
of counsel during the penalty phase, and remanded for the district court to issue a
conditional writ of habeas corpus. Detrich v. Schriro, No. 08-99001. In his
petition, Detrich also alleged violations of his constitutional rights to a fair trial, an
impartial jury, and due process during the guilt phase of his trial, when the trial
court (1) excused jurors based on their opposition to the death penalty, and (2)
refused to allow voir dire on jurors’ racial biases. Applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, the district court denied relief on the merits, and declined
to issue a certificate of appealability on these issues. Detrich presented the
uncertified issues in his opening brief, pursuant to Circuit Rule 22-1(e). We
granted a certificate of appealability on all of the uncertified issues and received
supplemental briefing from the parties. We affirm.
Under the AEDPA, a federal court may grant a state prisoner’s habeas
petition with respect to a claim that was “adjudicated on the merits in State court
proceedings” only if the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the
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United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). We agree with the district court’s determination that, under
the AEDPA, neither of Detrich’s guilt phase claims is meritorious.
First, Detrich alleged that contrary to Witherspoon v. Illinois, 391 U.S. 510
(1968), Adams v. Texas, 448 U.S. 38 (1980), and Wainwright v. Witt, 469 U.S. 412
(1985), three jurors were incorrectly dismissed for their views on the death penalty.
State v. Detrich, 932 P.2d 1328, 1336 (Ariz. 1997). Although Detrich generally
objected to death qualification prior to the commencement of voir dire, the Arizona
Supreme Court found that Detrich had waived the issue, absent fundamental error,
because he failed to object to each juror’s dismissal for cause during the voir dire
process. Id. The Arizona Supreme Court applied the standard explained in
Wainwright, and found no fundamental error because each of the three excused
jurors “expressly confirmed that their views on the death penalty would interfere
with their deliberations in the guilt phase of this case.” Id.
We agree with the district court’s determination that the claim was properly
exhausted and that the Arizona Supreme Court cited and applied the correct
standard from Wainwright. Detrich’s argument was squarely rejected by the
Supreme Court in Lockhart v. McCree, 476 U.S. 162, 183 (1986) (holding that
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Witherspoon and Adams are limited to capital sentencing and do not apply to the
“jury’s more traditional role of finding the facts and determining the guilt or
innocence of a criminal defendant”); see also Evans v. Lewis, 855 F.2d 631, 635
(9th Cir. 1988) (construing McCree as holding that Witherspoon and Adams apply
only in the sentencing context, rather than at the guilt phase). Therefore, we agree
that the state court’s decision was not “contrary to” nor an “unreasonable
application of” clearly established Supreme Court law.
Second, Detrich alleges that contrary to Turner v. Murray, 476 U.S. 28
(1986) and Rosales-Lopez v. United States, 451 U.S. 182 (1981), the trial court
erred by refusing to question jurors on racial prejudice during voir dire. Detrich,
932 P.2d at 1335. On the basis of the motions and the jury voir dire transcript, the
Arizona Supreme Court found that Detrich waived this issue, and it did not
conduct a fundamental error review on the merits of the claim. Id. Although the
parties disagree about whether this issue was properly exhausted, we agree with the
district court that this claim may be dismissed on the merits. See Cassett v.
Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an
unexhausted petition on the merits only when it is perfectly clear that the applicant
does not raise even a colorable federal claim.”). Under Ristaino v. Ross, 424 U.S.
589, 597 (1976), when issues of race are “inextricably bound up with the conduct
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of the trial” or the defense presented is “likely to intensify the prejudice that
individual members of the jury might harbor,” the trial court must allow voir dire
into racial bias if it is requested by the defendant. Id.
Here, Detrich’s passing mention of race in his proposed jury questionnaire
and citation to Turner and Rosales-Lopez in his motion for individualized
sequestered voir dire and for the jury to fill out a written questionnaire, were
simply insufficient to alert the trial judge of the importance of asking questions
related to racial prejudice as part of the jury voir dire. The memorandum
supporting Detrich’s motion made no mention of the importance of race to
Detrich’s defense. And, as the district court pointed out, when the trial judge asked
if there were any other issues prior to passing the panel for cause, Detrich never
explained the importance of racial issues to the defense, asked the judge to
question the jury on racial bias, or placed his objections to the lack of racial bias
voir dire on the record. Therefore, because it is perfectly clear that Detrich’s claim
does not raise even a colorable federal claim, we affirm the district court’s
conclusion that Detrich failed to establish that the state court’s rejection of this
claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court.” 28 U.S.C. §
2254(d).
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AFFIRMED.
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