Dino Kyzar v. Charles Ryan , 780 F.3d 940 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DINO WAYNE KYZAR, No. 12-17564
Petitioner-Appellant,
D.C. No.
v. CV-06-02015-
SRB
CHARLES L. RYAN; STATE OF
ARIZONA ATTORNEY GENERAL,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
November 19, 2014—San Francisco, California
Filed March 12, 2015
Before: Marsha S. Berzon and Johnnie B. Rawlinson,
Circuit Judges, and Elaine E. Bucklo, Senior District
Judge.*
Opinion by Judge Bucklo
*
The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2 KYZAR V. RYAN
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of Arizona
state prisoner Dino Wayne Kyzar’s habeas corpus petition
challenging his conviction for conspiring with Leroy Cropper
to commit a deadly or dangerous assault by a prisoner, in a
case in which Cropper stabbed a correctional officer to death.
The panel held that Kyzar’s pro se filings before the
Arizona trial court and Arizona Court of Appeals fairly
presented his sufficiency of the evidence claim, which was
sufficient to exhaust his state remedies and avoid a procedural
default.
The panel held, after reviewing the full trial record, that
the Arizona trial court did not apply Jackson v. Virginia, 443
U.S. 307 (1979), in an objectively unreasonable fashion when
it rejected Kyzar’s sufficiency of the evidence claim, where
the State presented evidence that Kyzar knew Cropper
intended to attack someone, agreed to help him obtain a knife,
and took an overt act in furtherance of this conspiracy.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KYZAR V. RYAN 3
COUNSEL
Tara K. Hoveland (argued), South Lake Tahoe, California, for
Petitioner-Appellant.
David A. Simpson (argued), Deputy Attorney General;
Thomas C. Horne, Attorney General; Joseph T. Maziarz,
Chief Counsel, Criminal Appeals Section; and David A.
Sullivan, Assistant Attorney General, Arizona Attorney
General’s Office, Phoenix, Arizona, for Respondents-
Appellees.
OPINION
BUCKLO, Senior District Judge:
On March 7, 1997, Leroy Cropper, an Arizona prisoner,
stabbed a correctional officer to death at the Perryville state
prison. A jury convicted Petitioner Dino Kyzar of conspiring
with Cropper and others to commit a deadly or dangerous
assault by a prisoner in violation of Ariz. Rev. Stat. Ann.
§ 13-1206.
Kyzar sought federal habeas relief on multiple grounds.
In Kyzar’s first appeal, we vacated and remanded for the
limited purpose of having the district court consider in the
first instance whether the evidence adduced at trial was
constitutionally insufficient to support his conviction. See
Jackson v. Virginia, 443 U.S. 307, 324 (1979) (holding that
petitioner is entitled to habeas relief if, after viewing the
evidence in the light most favorable to the prosecution, “no
rational [jury] could have found proof of guilt beyond a
reasonable doubt”).
4 KYZAR V. RYAN
On remand, the district court rejected Kyzar’s sufficiency
of the evidence claim. We affirm.
I. Background
At this stage, we must view the record in the light most
favorable to the prosecution and presume that the jury
resolved any evidentiary conflicts in its favor. Id. at 326(“[A] federal habeas corpus court faced with a record of
historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.”).
Moreover, we “cannot second-guess the jury’s credibility
assessments; rather, ‘under Jackson, the assessment of the
credibility of witnesses is generally beyond the scope of
review.’” U.S. v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010)
(en banc) (quoting Schlup v. Delo, 513 U.S. 298, 330 (1995));
see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004)
(“A jury’s credibility determinations are…entitled to near-
total deference under Jackson.”).
A. Facts
At the time of the murder, Cropper lived in Building 26
of the San Juan unit at Perryville prison. The building was
divided into four pods—A, B, C, and D—with each pod
having an upper and lower tier. Cropper lived in Cell No.
258 on the D pod’s upper tier. Cropper’s cellmate was Lloyd
Elkins. Cropper and Elkins had been cellmates for about one
month in Building 24 before they were transferred to
Building 26 on March 3, 1997, four days before the murder.
KYZAR V. RYAN 5
While Cropper was living in Building 24—but before he
was cellmates with Elkins—Kyzar gave him a nine to twelve
inch steel knife with electrical tape wrapped around the base
to form a handle. A few weeks later, after Cropper and
Elkins became cellmates, Elkins saw Cropper in possession
of a second knife with a serrated blade. According to Elkins,
Cropper generally knew where to find knives buried around
the prison yard. With respect to the prevalence of knives at
Perryville, Cropper testified at trial that “[e]verbody on the
yard ha[d] some type of weapon.”
On the day of the murder, Deborah Landsperger, a
correctional officer assigned to Building 26, discovered that
mops and brooms were missing from the equipment room.
Around 10:30 A.M., Landsperger and Brent Lumley, another
correctional officer, decided to conduct a cell-to-cell search
for the missing items. They started searching in the D pod’s
upper tier of cells.
Cropper and Elkins lived in the second cell searched.
After Landsperger noticed tattoo patterns on top of a cabinet,
she ordered Cropper and Elkins to exit the cell. Lumley did
a pat down search of the inmates. The officers ordered
Cropper and Elkins to wait outside the cell until the search
was over.
Landsperger and Lumley confiscated several items of
contraband during their search of Cell No. 258, including
more tattoo paraphernalia, a serrated knife blade without a
handle, and either a “cement nail,” or a four to six inch
“railroad spike.” At some point during the search, Cropper
came back into his cell and called Landsperger a “corncob
cunt” and a “bitch.” Lumley told Cropper, “Don’t be doing
that,” which prompted Cropper to curse at Lumley too.
6 KYZAR V. RYAN
Cropper acknowledged that his tirade was so loud that other
inmates in D pod probably heard him.
Landsperger and Lumley ordered Cropper to sit in the dirt
area on the bottom tier of the D pod for the remainder of the
search. Joshua “Tiny” Brice, an inmate who lived in the B
pod of Building 26, saw Cropper standing by the stairs during
the search. As Brice walked by, Cropper said that his cell
was being shaken down. The search concluded around 11:30
A.M. because Landsperger and Lumley needed to count the
inmates and take them to lunch.
Landsperger showed her supervisor, Lieutenant Hugh
Matson, the knife she had confiscated from Cropper’s cell
and recounted his verbal tirade. Matson, Landsperger and
one or two sergeants went to Cropper’s cell to address his
behavior. When asked if he had been verbally abusive
towards Landsperger, Cropper said, “Fuck that bitch. She
doesn’t know what she’s doing.” Cropper told Matson,
“Fuck you, punk. Get out of my fucking house, you little
punk. Step off. I’ve got nothing to say to you.” Id. Cropper
also declared, “It’s on,” which Matson interpreted as a direct
threat of violence. Cropper agreed that his words were a
threat of revenge. Matson placed Cropper and Elkins on
lockdown pending a disciplinary investigation. Cropper
kicked or punched his cell door as the officers were leaving.
Id.After the correctional officers left, Cropper had a
conversation with Eugene Long through the vent between
their cells. Long lived in the neighboring cell, No. 257, with
Bruce Howell. According to Elkins, Long characterized the
shakedown of Cropper’s cell as a form of harassment and said
there “needed to be a fallout on the yard.” Elkins testified
KYZAR V. RYAN 7
that Cropper was acting “like a maniac” after this
conversation and ranting about how the correctional officers
had disrespected him.
About twenty minutes after his first conversation with
Long, Cropper said through the vent, “Hey, homeboy, go get
Dino and Blue for me.” Dino Kyzar and Sean “Blue” Gieslin
were inmates who lived together in the A pod of Building 26
and exercised authority over the other white prisoners. A
week or two before the murder, Gieslin told Dave Fipps,
another inmate in Building 26, that Kyzar was running the
yard to deflect attention from Gieslin. According to Fipps,
Kyzar and Gieslin were the people to see if you needed a
weapon because they were effectively in charge among the
white inmates.
Shortly after lunch, Kyzar and Gieslin arrived at
Cropper’s cell. Elkins, who was sitting on his bed, overheard
the conversation that took place through the cell door
window. Cropper told Kyzar, “I want the good one,” while
making a stabbing motion. A “good one” is prison slang for
a knife or “shank” with a handle on it. Kyzar responded, “I
ain’t got it. You got it.” Cropper replied, “Give me any
one.” Kyzar then cautioned Cropper about his apparent
intentions, “Well, are you sure about this? How much time
you got, homeboy?” Cropper said, “It don’t fucking matter.
I’m a career criminal anyway.” Id. As Kyzar and Gieslin
were leaving, Cropper said, “You guys need to get off the
yard,” an expression that was not defined at trial. The entire
conversation between Cropper and Kyzar lasted about two
minutes.
As Joshua Brice was returning from lunch, Gieslin,
Kyzar, and Long approached him near a picnic table in the B
8 KYZAR V. RYAN
pod. Kyzar instructed Brice to “[s]how Eugene [Long] where
the shank is.” Brice responded that he did not know exactly
where to find a knife. Kyzar replied, “Just show him the
general area.” Id. Brice complied because of the respect
Kyzar commanded among the white inmates.
Brice indicated to Long a dirt area in the B pod where
another inmate had buried a knife about one month earlier.
Brice watched for guards while Long started digging in that
area. As Long was digging, Clifford Settle, an inmate who
lived on the B pod’s bottom tier near where Long was
digging, asked Brice if he was looking for a knife. Brice said
no, but indicated that Long was trying to find a shank. After
Brice summoned Long, Settle told them a knife was hidden
between two concrete slabs outside his cell. Long straddled
the concrete slabs, pulled out a knife, and concealed it in his
pants. Brice and Long then walked back to their respective
cells.
Meanwhile, Kyzar and Gieslin encountered Dave Fipps
in the yard as they were heading to the administration
building. Gieslin cryptically instructed Fipps to go to Long’s
cell to see if everything had been handled. When Fipps
arrived at Cell No. 257, Howell was standing outside keeping
watch while Long and Brice were inside the cell. Fipps
reported that Kyzar and Gieslin wanted to know if everything
was being handled. Brice said yes.
According to Brice, Fipps held two flyswatters that Long
had taped together while Long taped the knife he had
retrieved to the flyswatters. Long stood on the toilet in his
cell and called through the vent, “Hey, Padlock,” which was
Cropper’s nickname. Elkins heard Long tell Cropper, “I got
it,” to which Cropper responded, “Let me see it.” After Long
KYZAR V. RYAN 9
showed Cropper the knife, Cropper said, “That ain’t the good
one. Fuck it. Send it through.” Id. Elkins testified that Long
used the flyswatters to pass the knife to Cropper through the
vent between their cells. Cropper also asked for a right-
handed glove, which Long passed through the vent using the
same technique. After wrapping a boot lace around the
bottom of the knife, Cropper asked Long to spin the lock on
his cell. Long complied. Elkins then heard either Long or
Howell say, “It’s open. Go, go, go.”
Landsperger, who had just finished writing a report in the
control room for the C and D pods about the items
confiscated from Cropper that morning, saw Long playing
with the lock on Cropper’s cell. When Landsperger heard
Long say, “Oh shit,” she ordered him to come down and talk
with her. As Long was talking to Landsperger, whose back
was turned to the control room where Lumley was writing his
own report, Cropper escaped from his cell. Cropper went
directly to the control room and stabbed Lumley to death with
the knife Long had passed to him only a few minutes earlier.
All four pods in Building 26 were immediately placed on
lockdown.
Brice was in the administration building when the
lockdown was ordered. As Brice was walking back to
Building 26, Gieslin and Kyzar approached him in the main
recreation yard. All three men were detained in a fenced in
area outside Building 26 along with other inmates. As Brice,
Gieslin, and Kyzar were waiting to reenter the building, they
saw Howell, Long, Cropper, and Elkins escorted across the
yard in restraints. The guards were yelling at Cropper and
crying as they brought him out of Building 26. Brice,
Gieslin, and Kyzar also saw an ambulance and helicopter
arrive and then leave. Shortly before Brice was removed
10 KYZAR V. RYAN
from the fenced in area, Kyzar told him to keep his mouth
shut.
B. Procedural History
The State of Arizona charged Kyzar with conspiring to
commit a deadly or dangerous assault by a prisoner (Count I);
aiding a dangerous or deadly assault by a prisoner (Count II);
and promoting prison contraband (Count III).
On September 13, 1999, a Maricopa County jury found
Kyzar guilty on Count I, but acquitted him on Counts II and
III. After denying Kyzar’s motion for a new trial, the trial
judge sentenced him to twenty-one years in prison. Kyzar’s
arguments on direct appeal to the Arizona Court of Appeals
were unsuccessful. The Arizona Supreme Court denied
Kyzar’s petition for review on November 1, 2001.
About one year later, in October 2002, Kyzar filed a pro
se petition for post-conviction relief arguing, inter alia, that
the State had not introduced sufficient evidence to convict
him of conspiring to commit a dangerous or deadly assault on
a prison guard under the standard recently announced in
Evanchyk v. Stewart, 47 P.3d 1114 (Ariz. 2002). In denying
Kyzar’s post-conviction petition, the trial court held that
Evanchyk was “inapposite” to his case. Kyzar renewed his
argument based on Evanchyk before both the Arizona Court
of Appeals and the Arizona Supreme Court, which summarily
denied Kyzar’s petitions for review on March 24, 2004 and
November 9, 2004, respectively. Kyzar’s subsequent motion
in state court is irrelevant to his sufficiency of the evidence
claim.
KYZAR V. RYAN 11
On August 21, 2006, Kyzar filed a pro se federal habeas
petition arguing, as its third ground for relief, that the
evidence admitted at trial was constitutionally insufficient to
support his conviction. The district court, adopting a
magistrate judge’s report and recommendation, denied
Kyzar’s habeas petition in its entirety in February 2008.
After issuing a certificate of appealability on Kyzar’s
challenge to the trial court’s denial of his motion to sever and
his sufficiency of the evidence claim, we vacated in part and
remanded only on the latter issue. See Kyzar v. Ryan, 430 F.
App’x 630 (9th Cir. 2011), cert. denied, 132 S. Ct. 431.
On remand, the district court rejected Kyzar’s sufficiency
of the evidence claim. See Kyzar v. Ryan, No. CV 06-2015-
PHX-SRB, 2012 WL 5497805 (D. Ariz. Nov. 13, 2012). We
granted a certificate of appealability on this issue. See
28 U.S.C. § 2253(c)(2).
II. Exhaustion of Remedies
Respondent’s first argument on appeal is that Kyzar failed
to exhaust available state remedies because he did not fairly
present his sufficiency of the evidence claim to the Arizona
courts in a timely fashion. Our review is de novo. See
Chambers v. McDaniel, 549 F.3d 1191, 1195 (9th Cir. 2008).
Kyzar’s claim is governed by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which
requires petitioners to exhaust the remedies available to them
in state court. 28 U.S.C. § 2254(b)(1)(A). “[T]he exhaustion
doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts.” O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). In practical terms,
12 KYZAR V. RYAN
“state prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.”
Id. A habeas claim is procedurally defaulted if it was not
fairly presented to the state courts in a timely fashion. Id. at
848.
“[E]xcept in habeas petitions in life-sentence or capital
cases, claims of Arizona state prisoners are exhausted for
purposes of federal habeas once the Arizona Court of Appeals
has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010
(9th Cir. 1999) (per curiam). Kyzar was charged with three
class 2 felonies under Arizona law: conspiracy to commit a
dangerous or deadly assault by a prisoner; aiding a dangerous
or deadly assault by a prisoner; and promoting prison
contraband.1 The statutory maximum sentence for a class 2
felony in Arizona is thirty-five years. Ariz. Rev. Stat. Ann.
§ 13-704(E). Because Kyzar did not face a possible life
sentence or the death penalty, our exhaustion analysis focuses
on whether he fairly presented his sufficiency of the evidence
claim to the Arizona trial court and the Arizona Court of
Appeals. See O’Sullivan, 526 U.S. at 845 (holding that
petitioners must “invoke[e] one complete round of the State’s
established appellate review process” (emphasis added)).
1
See Ariz. Rev. Stat. Ann. §§ 13-1206 (categorizing “dangerous or
deadly assault by a prisoner” as a class 2 felony), 13-2505(F)
(categorizing “promoting prison contraband” as a class 2 felony if
contraband is a “deadly weapon” or “dangerous instrument”); see also id.at §§ 13-303(B) (subject to qualifications not relevant here, aiding an
offense is treated the same as committing the underlying substantive
offense), 13-1003(D) (except for class 1 felonies, “conspiracy is an
offense of the same class as the most serious offense which is the object
of or result of the conspiracy”).
KYZAR V. RYAN 13
“In order to ‘fairly present’ an issue to a state court, a
[habeas] petitioner must ‘present the substance of his claim
to the state courts, including a reference to a federal
constitutional guarantee and a statement of facts that entitle
the petitioner to relief.’” Gulbrandson v. Ryan, 738 F.3d 976,
992 (9th Cir. 2013) (quoting Scott v. Schriro, 567 F.3d 573,
582 (9th Cir. 2009)). “[F]or the purposes of exhaustion, pro
se petitions are held to a more lenient standard than counseled
petitions.” Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir.
2003) (citing Peterson v. Lampert, 319 F.3d 1153, 1159 (9th
Cir. 2003) (en banc)); see also Slack v. McDaniel, 529 U.S.
473, 487 (2000) (“[T]he complete exhaustion rule is not to
‘trap the unwary pro se prisoner.’” (quoting Rose v. Lundy,
455 U.S. 509, 520 (1982))).
Applying these principles, we conclude that Kyzar’s pro
se filings before the Arizona trial court and Arizona Court of
Appeals fairly presented his sufficiency of the evidence
claim. In his petition for post-conviction relief, Kyzar argued
that Evanchyk constituted a significant change in Arizona
conspiracy law insofar as it required the State to prove “both
that the perpetrator ha[d] an intent to promote or aid
commission of a specific offense and that he agree[d] with
another person that the offense be committed.” 47 P.3d at
1117. In Kyzar’s view, the State failed to prove at trial that
he “premeditated an agreement to conspire [sic] dangerous or
deadly assault [on] Officer Lumley inside of the prison
officers control room or any other officer or person(s) before
or on March 7, 1999.” Kyzar argued that the absence of
evidence showing an agreement violated his due process
rights. Id.As a pro se filing, Kyzar’s post-conviction petition was
adequate to alert the district court to the “substance of his
14 KYZAR V. RYAN
claim,” including its constitutional basis. Scott, 567 F.3d at
582. The essence of Kyzar’s argument was that the State had
failed to prove the elements of his alleged crime. Although
Kyzar did not cite In re Winship, 397 U.S. 358 (1970), or
Jackson for the proposition that the Due Process Clause of the
Fourteenth Amendment protects him from being convicted
unless the State proves every element of the charged offense
beyond a reasonable doubt, the substance of Kyzar’s claim
was apparent from his attempt to articulate the legal elements
for the crime of conviction and his explicit reference to due
process. Indeed, Kyzar’s citation to an Arizona Supreme
Court case was entirely consistent with fair presentation of a
Jackson claim, which necessarily turns on how crimes are
defined under state law. See Jackson, 443 U.S. at 324 n.16
(“[T]he standard [of review] must be applied with explicit
reference to the substantive elements of the criminal offense
as defined by state law.”). The merits of Kyzar’s Evanchyk
claim are irrelevant to the fair presentation issue. Kyzar’s pro
se filing in the Arizona trial court plainly did enough to
“alert[] that court to the federal nature of [his] claim.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
The same is true of Kyzar’s petition for review in the
Arizona Court of Appeals. Kyzar argued that “the State
never established the grounds and rules outlined in
Evanchyk…establishing petitioner’s agreement to aid or
counsel with Leroy Cropper in the assault and murder of
Officer Brent Lumley on March 7, 1997.” Kyzar conceded
that the crime at issue in Evanchyk was conspiracy to commit
premeditated murder, but characterized the decision as
“reinforce[ing]” the “foundational grounds” or elements for
the crime of conspiracy under Arizona law. Id. Although
Kyzar did not mention due process, he cited State v. Mincey,
687 P.2d 1180 (Ariz. 1984), in which the Arizona Supreme
KYZAR V. RYAN 15
Court, citing Jackson, held that there was sufficient evidence
to support the defendant’s second-degree murder conviction.
Id. at 1187, 1190. Kyzar’s citation to Mincey, read in
conjunction with his attempt to articulate the legal elements
for the crime of conviction, fairly apprised the Arizona Court
of Appeals that he was raising a federal constitutional
sufficiency of the evidence claim. See Peterson, 319 F.3d at
1158 (holding that “for purposes of exhaustion, a citation to
a state case analyzing a federal constitutional issue serves the
same purpose as a citation to a federal case analyzing such an
issue”).
In sum, Kyzar fairly presented his sufficiency of the
evidence claim to the Arizona courts, which was sufficient to
exhaust his state remedies and avoid a procedural default of
that claim.
III. Analysis
We review the district court’s rejection of Kyzar’s habeas
petition claim de novo. See Chein v. Shumsky, 373 F.3d 978,
982 (9th Cir. 2004) (en banc). We apply AEDPA deference
to the Arizona Court of Appeals’s decision if the Jackson
claim was “adjudicated on the merits.” 28 U.S.C. § 2254(d).
“When a federal claim has been [fairly] presented to a state
court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary.” Harrington v. Richter, 131 S. Ct. 770,
784–85 (2011). Kyzar has not attempted to overcome the
presumption that his claim was adjudicated on the merits in
state court, so AEDPA’s deferential standards of review
govern this case.
16 KYZAR V. RYAN
Under AEDPA, Kyzar’s sufficiency of the evidence claim
“face[s] a high bar in federal habeas proceedings because [it
is] subject to two layers of judicial deference.” Coleman v.
Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam). First, the
Arizona courts were required to view the evidence in the light
most favorable to the prosecution and ask whether “any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson, 443 U.S.
at 319. Second, under AEDPA, we may grant habeas relief
only if the Arizona courts “unreasonabl[y] appli[ed]” the
already deferential Jackson standard, 28 U.S.C. § 2254(d)(1),
meaning that their application of law to facts was “objectively
unreasonable,” Williams v. Taylor, 529 U.S. 362, 409 (2000).
A state court’s application of Supreme Court precedent is
objectively unreasonable when it is “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 131 S. Ct. at 786–87.
Under AEDPA, “when a state court does not explain the
reason for its decision, we ‘look through’ to the last state-
court decision that provides a reasoned explanation capable
of review.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir.
2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079
n.2 (9th Cir. 2000)). The Arizona Court of Appeals
summarily denied Kyzar’s petition for discretionary review,
so the only possible candidate for a reasoned state court
decision capable of review is the Arizona trial court’s holding
that Evanchyk was inapposite to Kyzar’s sufficiency of the
evidence claim.
The Arizona trial court presumably found Evanchyk
inapposite because that case defined the elements of
conspiracy to commit first-degree murder, whereas Kyzar
KYZAR V. RYAN 17
was convicted of conspiracy to commit a dangerous or deadly
assault by a prisoner. However, Evanchyk also underscored
that “the crime of conspiracy requires both that the
perpetrator have an intent to promote or aid commission of a
specific offense and that he agrees with another person that
the offense be committed.” 47 P.3d at 1117. After citing
Evanchyk, Kyzar argued that the State had not established
that he “premeditated an agreement to conspire [sic]
dangerous or deadly assault [on] Officer Lumley inside of the
prison officers control room or any other officer or
person(s).” In other words, Kyzar used Evanchyk to argue
that the State had failed to prove an essential element of any
conspiracy crime: an agreement with another person that a
specific offense—here, a dangerous or deadly assault by a
prisoner—be committed.
The trial court rejected Kyzar’s Evanchyk argument,
thereby rejecting his fairly presented Jackson claim at the
same time, but did so without discussing whether the
evidence against Kyzar was constitutionally sufficient to
support his conviction. Without a “reasoned explanation” for
the trial court’s rejection of Kyzar’s sufficiency of the
evidence claim, we must “‘engage in an independent review
of the record and ascertain whether the state court’s decision
was objectively unreasonable.’” Murray, 745 F.3d at 996
(quoting Walker v. Martel, 709 F.3d 925, 939 (9th Cir.
2013)). “Crucially, this [independent review] is not a de novo
review of the constitutional question.” Id (same). The
ultimate question under AEDPA is still whether the Arizona
trial court’s rejection of Kyzar’s claim was an objectively
unreasonable application of the Jackson standard.
18 KYZAR V. RYAN
A. The Evidence Against Kyzar
Our independent review of the record, viewed in the light
most favorable to the prosecution, establishes the following.
Kyzar and Gieslin shared a cell at Perryville prison and
exercised authority over the other white inmates. In fact,
Kyzar and Gieslin were the people to see if a white inmate
needed a knife, as evidenced by the fact that Kyzar had given
Cropper a knife in the past.
On the day of the murder, Cropper threw a tantrum while
various items of contraband—including a serrated
knife—were confiscated from his cell. After Cropper was
placed on lockdown, he asked Long to summon Kyzar and
Gieslin. When Kyzar arrived at Cropper’s cell, Cropper said
he wanted “the good one,” meaning a knife with a handle,
while making a stabbing motion. After a short discussion
about whether Cropper already had the specific knife he was
asking Kyzar to obtain for him, Kyzar asked, “Well, are you
sure about this? How much time you got, homeboy?”
Cropper said, “It don’t fucking matter. I’m a career criminal
anyway.” Id. As Kyzar and Gieslin were leaving, Cropper
told them to “get off the yard.” Kyzar then instructed Brice
to show Long, who lived in the cell right next to Cropper,
where to find a specific knife that he referred to as “the
shank.” Kyzar was also present when Gieslin instructed
Fipps to go to Long’s cell and see if everything was being
handled.
After the murder, Kyzar was standing with Gieslin and
Brice while they saw Cropper taken out of Building 26 in
restraints. The guards who were escorting Cropper were
crying and yelling at him. Kyzar turned to Brice and told him
to keep his mouth shut.
KYZAR V. RYAN 19
B. Sufficiency of the Evidence
The ultimate question is whether, on the facts recounted
above, it was objectively unreasonable for the Arizona trial
court to deny Kyzar’s sufficiency of the evidence claim. We
think not.
Kyzar was convicted of conspiracy to commit a
dangerous or deadly assault by a prisoner in violation of Ariz.
Rev. Stat. Ann. § 13-1206.2 The elements of this crime come,
in part, from Arizona’s criminal conspiracy statute, which
provides:
A person commits conspiracy if, with the
intent to promote or aid the commission of an
offense, such person agrees with one or more
persons that at least one of them or another
person will engage in conduct constituting the
offense and one of the parties commits an
overt act in furtherance of the offense, except
that an overt act shall not be required if the
object of the conspiracy was to commit any
felony upon the person of another, or to
commit an offense under § 13-1508 [first-
degree burglary] or 13-1704 [arson].
2
Kyzar’s acquittal on two other counts—aiding a dangerous or deadly
assault by a prisoner and promoting prison contraband—proves nothing
about whether the evidence was constitutionally insufficient to support his
conviction for a different crime. See United States v. Powell, 469 U.S. 57,
67 (1984) (holding that sufficiency of the evidence review “should be
independent of the jury’s determination that evidence on another count
was insufficient”).
20 KYZAR V. RYAN
A.R.S. § 13-1003(A). The object of the alleged conspiracy in
this case—i.e., a dangerous or deadly assault—constitutes a
“felony upon the person of another,” so the State was not
required to prove that Cropper, Kyzar, or any other co-
conspirator took an overt act in furtherance of their unlawful
objective.
Kyzar’s habeas claim boils down to whether there was
sufficient evidence to find that he: (1) “inten[ded] to promote
or aid the commission of [the assault]” and (2) “agree[d] with
one or more persons that at least one of them or another
person [would commit the assault].” Id. The most damaging
evidence on these elements is Kyzar’s conversation with
Cropper about obtaining a knife. The Arizona trial court
could reasonably find that the combination of Cropper’s
stabbing motion and Kyzar’s questions—“Well, are you sure
about this? How much time you got, homeboy?”—
demonstrated that Kyzar knew Cropper intended to assault
someone with the knife rather than keep it for possible self-
defense. There was also evidence that Kyzar had given
Cropper a knife in the past. In light of this history, Kyzar’s
questions to Cropper could reasonably be construed to
suggest that he was concerned about something more serious
than Cropper possibly getting caught with prison contraband.
Further, Long, whom Cropper sent to summon Kyzar, knew
of Cropper’s tirade and had said that there needed to be a
“fallout.” The jury could infer that Long communicated that
background to Kyzar before the latter arrived at Cropper’s
cell and heard his request.3
3
As for Cropper’s warning that Kyzar and Gieslin needed to “get off
the yard,” the most we can say about this ambiguous expression is that it
does not suggest that Cropper was seeking to obtain a knife for purposes
of self-defense.
KYZAR V. RYAN 21
Knowing that Cropper wanted a knife to assault someone,
Kyzar used his authority over the other white inmates to enlist
Brice in the effort to help Cropper obtain a specific
knife—i.e., a shank that Cropper and Kyzar understood to be
“the good one” because it had a handle. Kyzar was also
present when Gieslin asked Fipps to see if everything in
Long’s cell was being handled. A jury could reasonably find
that Kyzar knew what was supposed to be happening in
Long’s cell. After all, Kyzar had set in motion a plan for
Long to obtain a knife shortly after Cropper said he wanted
one and, the jury could infer, had an opportunity to hear the
background circumstances from Long.
Kyzar’s comment to Brice while they were waiting to
reenter Building 26 after the murder also provides evidence
from which the jury could infer that Kyzar knew Cropper
wanted a knife to harm someone rather than simply for self-
defense. Guards who were crying and yelling at Cropper as
he and three other inmates were taken out of Building 26 in
restraints. Kyzar reacted to these events by telling Brice to
keep his mouth shut. The jury could infer from Kyzar’s
statement that he knew his earlier instruction to Brice to help
Long find a knife was part of a larger plan connected to
Cropper that had come to fruition.
On these facts, the Arizona trial court did not apply
Jackson in an objectively unreasonable fashion when it
rejected Kyzar’s sufficiency of the evidence claim. The State
presented evidence at trial suggesting that Kyzar knew
Cropper intended to attack someone, agreed to help him
obtain a knife, and even took an overt act in furtherance of
this conspiracy. Kyzar was more than merely present while
other inmates engaged in criminal activity, so his reliance on
22 KYZAR V. RYAN
Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001), is
misplaced.
After reviewing the full trial record, we cannot say that
Kyzar’s sufficiency of the evidence claim was so meritorious
that, by rejecting it, the Arizona trial court committed “an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786–87; see also Williams, 529 U.S. at
410 (emphasizing that “an unreasonable application of
federal law” is a more serious error than “an incorrect
application of federal law”). Therefore, under AEDPA,
Kyzar is not entitled to habeas relief.
* * * * *
AFFIRMED.