Jeffrey Landrigan v. Ernest Trujillo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY TIMOTHY LANDRIGAN, 
Petitioner-Appellant,
v.
ERNEST TRUJILLO, Warden of
Arizona State Prison Complex-

No. 10-73241
Eyman,
ORDER
and
CHARLES L. RYAN, Director of the
Arizona Department of
Corrections,
Respondents-Appellees.

Filed October 25, 2010
Before: Pamela Ann Rymer, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
ORDER
Arizona death-row prisoner Jeffrey Landrigan asks this
court for authorization to file a second or successive (SOS)
application for a writ of habeas corpus in district court pursu-
ant to 28 U.S.C. § 2244(b)(2). He also seeks a stay of his
scheduled execution date of October 26, 2010.1 We deny both
requests.
1
To the extent Landrigan also asks this court to convene an en banc
panel to consider his request to file an SOS petition as an initial matter,
the request is denied as an application to file an SOS petition must be
heard by a three-judge panel. 28 U.S.C. § 2244(b)(3)(B).
17963
17964 LANDRIGAN v. TRUJILLO
Chester Dean Dyer’s body was found in his apartment on
December 15, 1989 after he failed to show up for work.2 On
December 13, 1989, before his death, Dyer had called a
friend, Michael, and told Michael he had picked up a man
known to him as “Jeff.” In another phone call a few minutes
later Dyer told Michael that he was currently having sexual
intercourse with Jeff. In a third call Dyer asked whether
Michael could get Jeff a job and Michael spoke to Jeff about
possible employment. When Dyer was found he was fully
clothed, face down on his bed, with a pool of blood at his
head. An electrical cord hung around his neck. Ligature stran-
gulation was the cause of death. Medical testimony at the pre-
sentence hearing indicated that Dyer probably was strangled
after being rendered unconscious from blows to the head with
a blunt instrument.
When first questioned, Landrigan denied knowing Dyer or
having been to his apartment. However, Landrigan was wear-
ing one of Dyer’s shirts when he was arrested. Fingerprints
from the scene matched Landrigan’s, and a shoeprint taken
from Dyer’s apartment matched one of Landrigan’s sneakers.
The sneaker had a small amount of blood on it that matched
blood on the shirt Dyer wore. Landrigan’s ex-girlfriend testi-
fied that, in a telephone conversation in December of 1989,
Landrigan told her he was “getting along” in Phoenix by “rob-
bing.” And in a phone call around Christmas, Landrigan told
her that he had “killed a guy . . . with his hands” about a week
before.3
Landrigan was convicted on June 28, 1990 of theft, second
degree burglary, and felony murder for having caused the vic-
2
The facts are taken from the Arizona Supreme Court’s opinion on
direct appeal. Arizona v. Landrigan, 859 P.2d 111, 113-14 (Ariz. 1993).
3
Smith testified that Landrigan said: “I did it with my hands. Me and
another dude. I just beat ‘em, you know what I mean? . . . And he killed
him. They ain’t got him. He disappeared . . . . Well, like I said all I did
was knock him out, the other guy killed him.”
LANDRIGAN v. TRUJILLO 17965
tim’s death in the course of and in furtherance of the burglary.
The jury also found that Landrigan had been convicted in
Oklahoma of assault and battery with a deadly weapon, sec-
ond degree murder, and possession of marijuana. At the time
of the Dyer murder, he was an escapee from an Oklahoma
prison.
The trial judge (who was also the sentencer) found two stat-
utory aggravating circumstances under Ariz. Rev. Stat. § 13-
703(F), that Landrigan was previously convicted of a felony
involving the use or threat of violence on another person; and
that he committed the offense in expectation of receiving
something of pecuniary value. The judge found no statutory
mitigating circumstances sufficient to call for leniency, but
she identified family love and lack of premeditation as non-
statutory mitigating circumstances. On balance, the sentenc-
ing judge concluded, the mitigating factors did not outweigh
the aggravating circumstances. Accordingly, Landrigan was
sentenced to an aggravated term of 20 years on the burglary
count, six months in county jail for theft, and death for mur-
der.
In the course of rendering her decision, the sentencing
judge found from the evidence at trial and at sentencing that
Landrigan “was the actual killer, that he intended to kill the
victim and was a major participant in the act. Although the
evidence shows that another person may have been present,
the Court finds that the blood spatters on the tennis shoes of
the defendant demonstrate that he was the killer in this case.”
The Arizona Supreme Court affirmed Landrigan’s convic-
tion and sentence on direct appeal. Landrigan, 859 P.2d at
114, 117-18. After post-conviction relief proceedings in state
court, Landrigan filed a petition for writ of habeas corpus in
federal district court on October 16, 1996. The petition
focused on claims of ineffective assistance at sentencing. Ulti-
mately, the United States Supreme Court reversed this court’s
grant of an evidentiary hearing. Schriro v. Landrigan, 550
17966 LANDRIGAN v. TRUJILLO
U.S. 465 (2007), rev’g 441 F.3d 638 (9th Cir. 2006) (en
banc).
Meanwhile, an Arizona statute was enacted in 2000 that
provided for post-conviction DNA testing.4 In the wake of
that statute, an investigator with the office of the Federal Pub-
lic Defender for the District of Arizona contacted the Phoenix
Police Department to determine whether hair found on or in
Dyer’s hand, and a fingernail found in his apartment, still
existed. The Police Department couldn’t find them. In the
summer of 2006, Landrigan sought an order from the Mari-
copa County Superior Court authorizing him to conduct post-
conviction DNA testing on the fingernail and hairs. Although
the state indicated that this evidence was available, and an
order was issued, on January 29, 2007 the Phoenix Police
Department again said it couldn’t find the fingernail or hairs.
On August 6, 2007, Landrigan asked the superior court to
expand its 2006 DNA testing order to include Dyer’s jeans,
the blanket from his bed, and a set of two curtains from his
apartment. The court did so. The jeans, blanket, and curtains
were sent to Technical Associates Inc. (TAI), a Ventura, Cali-
fornia laboratory, for testing. TAI reported on April 22, 2008
that Landrigan was excluded as a contributor of any of the
DNA. Landrigan asked for an evidentiary hearing which the
superior court denied (August 7, 2009) on the footing that
there was no dispute about the findings for an evidentiary
hearing to resolve.
On August 10, 2009 Landrigan sought to amend his post-
conviction review petition to assert that the results of the
4
Ariz. Rev. Stat. § 13-4240(A) provides for post-conviction testing of
“any evidence that is in the possession or control of the court or the state,
that is related to the investigation or prosecution that resulted in the judg-
ment of conviction, and that may contain biological evidence.” Before
seeking DNA testing under this statute, the prisoner must demonstrate to
the court that the evidence still exists. Id. § 13-4240(B)(2).
LANDRIGAN v. TRUJILLO 17967
DNA testing showed that the sentencing judge erroneously
concluded he was eligible for the death penalty under Enmund
v. Florida, 458 U.S. 782, 797 (1982). The superior court dis-
missed this petition (October 5, 2009), finding that the DNA
evidence would not have affected the trial court’s sentence of
death. It found that at most, the new DNA evidence shows
only that someone else may have been involved in the crimes.
The court also noted that Landrigan told his psychological
expert that he put the victim in a headlock while his accom-
plice hit him. Further, both the trial judge and the Arizona
Supreme Court determined that the record did not present mit-
igating evidence sufficiently substantial to call for leniency.
Finally, the court observed that if an accomplice were
involved in the murder, Landrigan knew it and could have
presented this fact, or his lesser culpability, as mitigation. The
superior court denied rehearing. The Arizona Supreme Court
declined review, and the United States Supreme Court
declined to issue a writ of certiorari. Landrigan v. Arizona,
No. 10-5280, 2010 WL 2717732 (U.S. Oct. 4, 2010).
While TAI performed tests on blood stains on the jeans, it
did not subject them to DNA analysis. At Landigran’s
request, the superior court on October 10, 2010 released the
jeans for TAI to complete the testing ordered in 2007. Prelim-
inary results furnished on October 20, 2010 show that the
semen and blood left on both the jeans and the blanket are the
victim’s or someone else’s, not Landrigan’s.
After some procedural back and forth, the Arizona
Supreme Court refused to stay the execution on account of the
new DNA test results. In the midst of that court’s consider-
ation of the issue, Landrigan filed the application for leave to
file an SOS petition that we now consider. In the application,
Landrigan asserts that the DNA evidence supports a claim for
habeas relief in that it clearly shows he is not eligible for the
death penalty under Enmund and Tison v. Arizona, 481 U.S.
137, 158 (1987). The petition he wishes to file in district court
seeks a writ of habeas corpus as to the death sentence and an
17968 LANDRIGAN v. TRUJILLO
order that the Arizona courts conduct whatever proceedings
are necessary to comply with Enmund and Tison.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), we may only authorize the filing of an SOS
application if the applicant makes a prima facie showing that
“the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2244(b)
(2)(B)(ii).5 In addition, the applicant must show that the fac-
tual predicate for the claim could not have been discovered
previously through the exercise of due diligence. Id.§ 2244(b)(2)(B)(i).
On diligence, we note that Landrigan was convicted in June
1990. The Arizona DNA-testing statute was adopted in 2000,
but Landigran did not seek DNA testing until 2006. Even
then, testing was sought only as to the hair and a fingernail.
It was not until 2007, when the Police Department finally said
it didn’t have this evidence, that Landrigan asked for DNA
testing on Dyer’s jeans, blanket, and curtains. Landrigan
offers no explanation for waiting six years after the Arizona
DNA statute was enacted to seek DNA testing of any sort.
Nor does any explanation appear for why he did not ask for
DNA testing on the jeans, blanket, or curtains in 2006 when
he asked for it on the hair and fingernail. In these circum-
stances a serious question exists whether the factual predicate
for the claim — results of DNA testing on the jeans — could
not have been discovered earlier.
5
The state suggests that only a conviction may be challenged under
§ 2244(b), as the statute pertains to the “underlying offense.” However, we
have treated a claim that a petitioner is ineligible for the death penalty as
covered. See Thompson v. Calderon, 151 F.3d 918, 923-24 (9th Cir. 1998)
(en banc). Regardless, the outcome in this case is the same, given our con-
clusion that no adequate showing of a constitutional violation has been
made.
LANDRIGAN v. TRUJILLO 17969
But assuming diligence, Landrigan must make a prima
facie showing6 of ineligibility for the death penalty under
Enmund and Tison. He submits that he has done so by show-
ing that he was not the actual killer or a major participant
because he is excluded as a source of the DNA found on the
victim’s curtains, blanket, and jeans.
In Enmund, a couple was robbed and fatally shot by Samp-
son and Jeanette Armstrong. Enmund was in the get-away car,
not at the house where the murders occurred. He, along with
the Armstrongs, was convicted of first-degree murder and
robbery. The Court held that the death penalty may not consti-
tutionally be imposed on one who aids and abets a felony
(such as robbery) in the course of which a murder is commit-
ted by someone else when he did “not himself kill, attempt to
kill, or intend that a killing take place or that lethal force will
be employed.” 458 U.S. at 797. Tison involved two individu-
als whose participation was neither as killer, nor as someone
who wasn’t on the scene and didn’t intend or plan to kill as
in Enmund. Rather, they armed the actual killers knowing
they had previously killed others, they were present and stood
by and watched their companions shoot and kill the victims,
and could have foreseen that lethal force might be used. Thus,
they were not minor participants and their mental state was
one of reckless indifference to the value of human life. In
these circumstances, the Court concluded, the Enmund culpa-
bility requirement could be met.
We disagree that the DNA test results make a prima facie
showing of a constitutional violation under Enmund and
6
A “prima facie showing” is “ ‘a sufficient showing of possible merit to
warrant a fuller exploration by the district court,’ ” and we will grant an
application for an SOS petition if “ ‘it appears reasonably likely that the
application satisfies the stringent requirements for the filing of a second
or successive petition.’ ” Woratzeck v. Stewart, 118 F.3d 648, 650 (9th
Cir. 1997) (per curiam) (quoting Bennett v. United States, 119 F.3d 468,
469 (7th Cir. 1997)); Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir.
2004) (en banc) (quoting Woratzeck, 118 F.3d at 650)).
17970 LANDRIGAN v. TRUJILLO
Tison. Together Enmund and Tison indicate that major partici-
pation in the felony, together with reckless indifference to
human life, suffices for death penalty eligibility. Here, the
sentencing judge found that Landrigan was the actual killer,
that he intended to kill Dyer, and that he was a major partici-
pant in the act — in other words, the Enmund/Tison culpabil-
ity requirements were met. Landrigan maintains that the
sentencing judge’s finding clearly lacks support in the evi-
dence in light of the DNA test results, but these results simply
show that Landrigan did not contribute semen or blood found
on Dyer’s jeans. They do not show that Landrigan was not,
at a minimum, a major participant in Dyer’s death. Landrigan
further suggests that the results demonstrate the sentencing
judge’s “folly in believing the testimony of Cheryl Smith,”
but whether part, all, or none of her testimony was credible,
Landrigan confessed to his psychologist that he “put the vic-
tim in a head lock, and his partner hit him until he was uncon-
scious. The client [Landrigan] went back to robbing the place,
his original intention, while the partner took an electric cord
and began to choke him to death.” Thus, Landrigan was pres-
ent at the scene (unlike Enmund), and he has admitted facts
that demonstrate his major participation in, and reckless indif-
ference to, Dyer’s murder.
We conclude that Landrigan’s second and successive
habeas application presents no substantial ground on which
relief might be granted. Our review of the record convinces
us that further exploration by the district court is unwarranted.
Accordingly, we deny his application. This moots the request
for a stay.7
APPLICATION DENIED. REQUEST FOR STAY DIS-
MISSED.
7
Our denial “shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.” 28 U.S.C.
§ 2244(b)(3)(E).