UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THEODORE WASHINGTON, No. 05-99009
Petitioner-Appellant, D.C. No. CV-95-02460-JAT
District of Arizona,
v. Phoenix
CHARLES L. RYAN, ORDER
Respondent-Appellee.
Before: GOULD, CALLAHAN, and N.R. SMITH, Circuit Judges.
The opinion in the above-captioned matter filed on April 17, 2019, and
published at 922 F.3d 419, is WITHDRAWN and the appeal is reopened.
Appellee Charles L. Ryan’s petition for panel rehearing and petition for rehearing
en banc (DE 266) are DENIED as moot. The parties are requested to file
simultaneous briefs addressing the significance of Shinn v. Kayer, 592 U.S.
____ (2020) to the above-captioned case within 30 days of the date of this order.
The briefs shall not exceed fifteen (15) pages.
The full court has been advised of Appellant Theodore Washington’s
petition for rehearing en banc from our memorandum disposition and no judge has
requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The
memorandum disposition filed April 17, 2019 is amended by replacing the fourth
sentence with: “Washington’s certified claim for ineffective assistance of counsel
remains under consideration.” Appellant Theodore Washington’s petition for
panel rehearing and petition for rehearing en banc (DE 267) are DENIED. The
memorandum disposition in the above-captioned matter filed on April 17, 2019, is
hereby amended, and filed concurrently with this order.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE WASHINGTON, No. 05-99009
Petitioner-Appellant, D.C. No. CV-95-02460-JAT
v.
AMENDED MEMORANDUM*
CHARLES L. RYAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted September 26, 2018
Pasadena, California
Before: GOULD, CALLAHAN, and N.R. SMITH, Circuit Judges.
Arizona state prisoner Theodore Washington was sentenced to death in 1987
for the first degree murder of Sterleen Hill. Washington appeals the district court’s
denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. On appeal,
Washington raises three certified issues and four uncertified issues. Washington’s
certified claim for ineffective assistance of counsel remains under consideration.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We address Washington’s remaining claims here, and on all these claims we affirm
the district court.
1. Although Washington filed his habeas corpus petition before the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996, his appeal is
subject to the certificate of appealability (COA) requirements of 28 U.S.C. § 2253.
Slack v. McDaniel, 529 U.S. 473, 478 (2000). We construe uncertified issues
raised on appeal as a motion to expand the COA. Ninth Cir. R. 22-1(d), (e);
Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012). We conclude that
reasonable jurists could disagree as to the propriety of the district court’s resolution
of the uncertified issues and therefore expand the COA and address them on the
merits.
2. The trial court’s failure to sever Washington’s case from Fred Robinson’s
did not result in prejudice so fundamental as to deny his due process right to a fair
trial. We review denial of a severance motion for abuse of discretion. See, e.g.
United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir. 1992). The primary inquiry in
determining whether a failure to sever was prejudicial to the defendant is whether
the evidence is easily compartmentalized. United States v. Patterson, 819 F.2d
1495, 1501 (9th Cir. 1987). Here, the evidence of Fred Robinson’s prior
abductions of Susan Hill was reasonably easy to separate from the evidence
pertaining to the murder of Sterleen Hill. Washington’s lawyer established that
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Washington was not present for the prior abductions, and both the prosecution and
defense noted that Washington was not involved with the prior abductions in their
closing arguments. Finally, the trial court offered limiting instructions, which the
jurors are presumed to have followed. See Cheney v. Washington, 614 F.3d 987,
997 (9th Cir. 2010). Washington therefore cannot show prejudice. There was no
abuse of discretion in denying severance.
3. The trial court did not err in applying the statutory cruel, heinous, and
depraved aggravating factor under Ariz. Rev. Stat. Ann. § 13-751(F)(6). Because
the statute is written in the disjunctive, the trial court only needed to find one of the
elements proven beyond a reasonable doubt to apply the aggravator. See State v.
Carlson, 48 P.3d 1180, 1191 (Ariz. 2002). The trial court’s finding that the killing
satisfied the cruelty prong, which was affirmed by the Arizona Supreme Court, is
amply supported by substantial evidence in the record. Sterleen Hill was forced to
listen helplessly as her husband was shot and then wait as the shotgun was
reloaded, knowing that she would be next. The trial court’s conclusion that the
suffering was reasonably foreseeable is also supported by the evidence.
Washington had been told before the invasion that the “real purpose of the trip to
Yuma was to take out a drug dealer and get his dope and his money.” And he was,
at a minimum, present while Sterleen Hill was bound and forced to lie on the floor
in preparation for the execution-style shootings of her and her husband. The trial
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court’s application of the cruelty aggravator was not arbitrary and capricious and
did not violate Washington’s due process rights.
4. There is sufficient evidence to support Washington’s conviction. When
assessing whether sufficient evidence exists to support a conviction, we determine
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact” could have made the finding beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Under this
standard, the evidence shows that Robinson, Mathers, and Washington discussed
going to Yuma on the day of the crimes. The evidence further shows that
Washington was seen in Robinson’s car with Mathers and Robinson leaving
Banning on the night of the crime wearing a red bandana and a tan trench coat.
Moreover, Ralph Hill’s description of one of his attackers as a young black man
wearing a red bandana with a moustache and long sideburns matched
Washington’s appearance that night. Ralph knew Robinson, who is also black, and
testified the man he saw was not Robinson. The jury could reasonably conclude
that Washington was one of the culpable intruders. Also, the shotgun used to shoot
the Hills and a tan trench coat containing a slip of paper with Eric Robinson’s
name on it were found in a nearby field. A few hours after the murder,
Washington called his girlfriend from Yuma, telling her he was stranded. From all
this evidence, a rational trier of fact could have found beyond a reasonable doubt
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that Washington participated in the crime.
5. We are also not persuaded that Washington’s counsel on direct appeal was
constitutionally ineffective for failing to raise a sufficiency of the evidence
challenge. To establish ineffective assistance of counsel, Washington must show
that his appellate counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms at the time and that the
ineffective assistance resulted in prejudice. Correll v. Ryan, 539 F.3d 938, 942
(9th Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Clarke testified that he made a tactical decision to focus on other issues on appeal
and there is nothing to suggest this decision was unreasonable. Even if Clarke
erred by failing to raise the issue on direct review, the evidence adduced at trial
was sufficient to support Washington’s conviction. As a result, Washington cannot
show a reasonable probability of a different outcome but for Clarke’s alleged error;
without prejudice, this claim fails.
6. The trial court did not unconstitutionally apply the “pecuniary gain”
aggravator. The pecuniary gain aggravator applies when “the defendant committed
the offense as consideration for the receipt, or in expectation of the receipt, of
anything of pecuniary value.” Ariz. Rev. Stat. Ann. § 13-751(F)(5). The
expectation of pecuniary gain must have been “a motive, cause, or impetus for the
murder and not merely the result of the murder.” State v. Hyde, 921 P.2d 655, 683
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(Ariz. 1996). The evidence shows that Washington was advised that the real
purpose of the trip to Yuma was to “knock off a dope dealer” and “take his coke
and take the cash.” In addition, Washington forced his way into the Hills’ home,
repeatedly demanded drugs or money from the couple, and searched for and took
items of value from the Hills’ home. The application of the pecuniary gain factor
is supported by evidence in the record and was not “so arbitrary or capricious as to
constitute an independent due process or Eighth Amendment violation.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
7. Washington’s death sentence is not constitutionally inadequate under
Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137
(1987). For a death sentence to be constitutional under the Eighth Amendment, the
state must show that (1) the defendant was a major participant in the felony
committed, and (2) the crime was committed with reckless indifference to human
life. See Tison, 481 U.S. at 158. The evidence supports the trial court’s conclusion
that Washington was a major participant in the crime. Washington entered the
Hills’ home and forced them into the master bedroom while demanding drugs and
money. Ralph Hill saw Washington riffling through drawers before he was shot.
And the gun used to shoot the Hills was recovered near the trench coat Washington
was seen wearing that day. The evidence likewise supports the trial court’s finding
that the crime was committed with reckless disregard for human life. Washington
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and his partner entered the Hills’ home armed and forced the couple to lie face
down while demanding drugs and money. Whether or not Washington pulled the
trigger, he was present and failed to render aid to the Hills. See Dickens v. Ryan,
740 F.3d 1302, 1316 (9th Cir. 2014). Washington was a major participant in the
tragic acts of that day. The Arizona court’s determination that Washington was
eligible for the death sentence is therefore well supported by the evidence in the
record.
8. The district court did not err in denying Washington’s motion to expand the
record because Washington cannot show cause for his failure to develop the facts
in the state PCR proceedings or that failure to admit the evidence resulted in a
fundamental miscarriage of justice. See Keeney v. Tomayao-Reyes, 504 U.S. 1,
11–12 (1992).
9. In conclusion, on all the claims discussed in this memorandum disposition,
we AFFIRM the district court and deny relief.
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