FILED
NOT FOR PUBLICATION JAN 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY DICKENS, No. 08-99017
Petitioner - Appellant, D.C. No. CV-01-757-PHX-NVW
v.
MEMORANDUM*
CHARLES RYAN,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted June 24, 2013
Seattle, Washington
Before: KOZINSKI, Chief Judge, and PREGERSON, WARDLAW, BERZON,
BYBEE, CALLAHAN, IKUTA, N.R. SMITH, MURGUIA, CHRISTEN and
WATFORD, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 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 (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 (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 based on an unreasonable determination of the
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
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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) (per curiam). 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
484.
III.
Lastly, we decline to issue a COA on Dickens’s claim that the Arizona
Supreme Court’s decision to deny his Mattox claim—that the bailiff’s interaction
with the jury denied him a fair trial—was based on an unreasonable application of
Supreme Court precedent and on an unreasonable determination of the facts.
The Arizona Supreme Court denied Dickens’s Mattox claim, because:
(1) “the record shows that only one juror asked the bailiff to clarify an instruction,
not that the jury presented a question to the judge;” (2) “the bailiff [did not] refuse
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to submit a question to the judge or attempt to answer it herself;” (3) the “bailiff
merely instructed the juror to discuss any need for clarification with the other
jurors and present a question for transmittal to the judge if there was one;” and
(4) “[h]aving just asked a question and received an answer on another subject [the
jurors previously sought clarification of the word “culpability”], we must assume
that the jurors were well aware of their ability to address questions to the judge.
We do not see how the bailiff's statement could be considered interference with the
jurors’ prerogative to transmit questions to the judge.” State v. Dickens, 926 P.2d
468, 484 (Ariz. 1996).
Because these interactions were “harmless,” Mattox v. United States, 146
U.S. 140, 150 (1892), and the “intrusion [did not] affect the jury’s deliberations
and thereby its verdict,” United States v. Olano, 507 U.S. 725, 739 (1993),
reasonable jurists would not find the Arizona court’s assessment of this claim
debatable or wrong.
DENIED.
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