Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1989)

MEMORANDUM^** 

Robert Dean Billhymer appeals the district court's denial of his petition for a writ of habeas corpus, alleging a variety of constitutional errors in his conviction and sentence by an Arizona court on two counts of first degree murder. We affirm.

Billhymer was indicted in September 1974 on two counts of murder, one count of armed robbery and one count of grand theft auto under Arizona law. The parties entered into a trial agreement in which the petitioner waived his right to a jury trial and agreed to submit his case to the trial court based upon certain written reports. The agreement further provided that the State would dismiss the last two counts and, if the trial court convicted the petitioner on the two murder charges, it would recommend against imposition of the death penalty. In addition, the petitioner waived all of his pending motions, except one raising the issue of his right to a "lunacy" defense.

Concluding that Billhymer was not entitled to a "lunacy" defense as a matter of Arizona law, the trial court convicted him on both counts of first degree murder and sentenced him to two consecutive life sentences. The Arizona Supreme Court rejected Billhymer's appeal of his conviction, finding that he was legally sane and that Arizona law recognizes no distinction between insanity and lunacy. State v. Billhymer, 114 Ariz. 390, 561 P.2d 311 (1977).

From 1985 to 1987, the petitioner sought post-conviction relief in the Arizona state courts, raising a variety of constitutional claims, some of which he repeats here. His state petition was ultimately denied when the Arizona Supreme Court declined to review the superior court's denial of his petition.

Billhymer then sought a writ of habeas corpus in the district court on the following grounds: 1) that rejection of his lunacy defense violated the Fifth, Sixth and Fourteenth Amendments; 2) that the sentences imposed violated his Fourteenth Amendment right to due process; and 3) that the sentences imposed violated the Fifth Amendment guarantee against Double Jeopardy. The petitioner later dismissed his second claim in response to respondents motion to dismiss for failure to exhaust the claim in state court proceedings. The district court then granted respondents' motion for summary judgment on the remaining claims and dismissed the petition for habeas corpus. Billhymer now appeals. We have jurisdiction over his appeal, 28 U.S.C. §§ 2253, 2254, and we affirm the district court's order.

Billhymer argues that he should have been allowed to raise a lunacy defense to the two murder charges. He relies upon the language of former Arizona Revised Statute Sec. 13-135 which provided that:

All persons are capable of committing crimes except:

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2. Idiots, lunatics and insane persons.

Relying on an 1828 opinion, Owings Case, 1 Bland 370 (Md.1828), the petitioner argues that lunacy is a defense distinct from insanity. While legal insanity connotes an inability to distinguish right from wrong and to understand the nature and quality of one's actions, lunacy, according to the petitioner, involves a defect of the will, such that an individual is incapable of refraining from acts understood to be wrong. In essence, Billhymer argues that Arizona law recognizes a defense to criminal liability based on volitional as well as cognitive disorders.

The Arizona courts have accepted insanity as a defense where the defendant was unable to perceive the wrongfulness of an act. Judd v. State, 41 Ariz. 176, 183, 16 P.2d 720 (1932), citing Foster v. State, 37 Ariz. 281, 294 P. 268 (1930). However, they have repeatedly rejected attempts to assert the existence of volitional incapacity as a defense to a criminal charge. Id.; see also State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. denied, 382 U.S. 1015 (1966); State v. Macias, 60 Ariz. 93, 131 P.2d 810 (1942).

In the absence of exceptional circumstances, we are bound by a state court's construction of that state's laws. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); Gentry v. MacDougall, 685 F.2d 322 (9th Cir. 1982). As no such circumstances exist here, we have no authority to read into Sec. 13-135 a separate lunacy defense where the Supreme Court of Arizona has clearly held that no legal difference exists between insanity and lunacy for purposes of determining criminal responsibility. Billhymer, 114 Ariz. at 313.

The petitioner asserts that the Arizona Supreme Court's interpretation of Sec. 13-135 impermissibly altered the meaning of that statute, thereby depriving him of his constitutional rights. Since a state court is clearly empowered to construe the statutes of that state, we have no authority to review its interpretation unless the statute itself, as interpreted, violates the constitution. The Supreme Court has held that the unavailability of an "irresistible impulse" defense which excuses criminal liability based on volitional impairments does not raise due process concerns. Leland v. Oregon, 343 U.S. 790, 801 (1952). Because the petitioner has no constitutional right to a "lunacy" defense, we lack the power to review the Arizona Supreme Court's interpretation of Sec. 13-135.

Billhymer also complains that the trial court never made a finding that he had the capacity to distinguish right from wrong. While he may be correct that the district court did not explicitly make such a finding, every person charged with a crime is presumed sane under Arizona law, unless the defendant raises a defense of insanity. Judd, 41 Ariz. at 183. In this case, Billhymer asserted only a lunacy defense--based upon his alleged volitional incapacity--and specifically argued that it was distinct from an insanity defense. He never asserted an insanity defense, nor did he offer any evidence to bring his sanity into question. In fact, the expert witness who testified on Billhymer's behalf on the lunacy issue conceded that the petitioner had understood the nature and consequences of his actions and was legally sane under existing Arizona law. Where the defendant has not raised an insanity defense, as in this case, the trial court is not required to make a specific finding that the defendant was capable of distinguishing right from wrong.

Billhymer's second claim of constitutional error is that the sentences imposed violated his due process rights because the trial court failed to set a specific date for commencement of the second term. When respondents moved to dismiss this claim in the district court for failure to exhaust state remedies, the petitioner voluntarily dismissed it. He has waived this claim and cannot now revive it on appeal.

Finally, Billhymer claims that the imposition of consecutive sentences violates his Fifth Amendment right to be free from double jeopardy. The district court dismissed this claim on the ground that the petitioner was procedurally barred from raising it in state court and had failed to show cause and prejudice warranting relief in federal court under Wainwright v. Sykes, 433 U.S. 72 (1977).

The petitioner appears to concede that the double jeopardy issue was not properly raised in the Arizona courts due to a procedural default. However, he argues that he has made a sufficient showing of cause to excuse the default. In order to obtain review in the federal court, Billhymer must show both cause for noncompliance with the procedural rules and some showing of actual prejudice from the alleged constitutional violation. Wainwright, 433 U.S. at 84. We need not consider petitioner's arguments that he had good cause for the procedural default because he has clearly suffered no prejudice from the district court's refusal to consider this issue.

The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb." (emphasis added) While multiple punishments for the same offense may violate the Fifth Amendment, two separate sentences imposed for two separate offenses do not. Blockburger v. United States, 284 U.S. 299, 304 (1932). Because Billhymer was convicted of two counts of first degree murder for the deaths of two individuals, the fact that he received two life sentences does not raise any double jeopardy concerns.

The order of the district court is AFFIRMED.