Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1990)

Lewis S. McDANIEL, Petitioner-Appellant,v.STATE OF ARIZONA, Attorney General of State of Arizona,Respondents-Appellees.

No. 89-15510.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1990.Decided Dec. 28, 1990.

MEMRORANDUM* 

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.


Lewis McDaniel appeals the denial of his petition for habeas corpus. Our review is de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986). We affirm on all but one issue, and remand for determination of that issue.1 

The Arizona Supreme Court commuted McDaniel's death sentence for murder to life imprisonment, and at the same time provided that concurrent sentences McDaniel had received for robbery and kidnapping connected with the homicide were to be served after his new life sentence.2 

McDaniel alleges he was not credited for the seven years he had served before resentencing. Punishment already exacted for an offense must be fully credited in imposing a new sentence. North Carolina v. Pearce, 395 U.S. 711, 718 (1969). If McDaniel was only awaiting execution of a death sentence and not serving a term of years, the sentence would not yet have begun to run, and no credit would be due. See Knapp v. Cardwell, 667 F.2d 1253, 1263 (9th Cir. 1982). McDaniel was originally sentenced to nine to ten years for kidnapping and 20 years to life for robbery, in addition to the death sentence. The record does not reveal whether McDaniel had begun serving either of the terms of years while awaiting the results of his death penalty appeal. We remand to the district court for a determination of that issue. If McDaniel had begun serving either of the terms of years, he must be credited for the portion of those sentences served at the time of resentencing.

McDaniel argues that because the general verdict did not specify whether the jury convicted on the basis of felony murder or intent to kill, and the Supreme Court of Arizona held there was insufficient evidence of intent to kill, the verdict may have rested on insufficient evidence and his conviction must be vacated.

McDaniel concedes this argument is procedurally barred because he did not raise it below in either state or federal court and he is now precluded from relief by Arizona Rules of Criminal Procedure 32.2(c) and 32.9(a), unless he can show cause and prejudice. See, e.g., Teague v. Lane, 489 U.S. 288, 298, (1989). McDaniel failed to do so. This is not a case in which the default may be overlooked because a "constitutional violation has probably resulted in the conviction of one who is actually innocent...." Murray v. Carrier, 477 U.S. 478, 496 (1986). See also Smith v. Murray, 477 U.S. 527, 537 (1986).

McDaniel argues the jury, not the judge, should have found whether the "aggravating circumstances" required for imposition of the death penalty existed. This claim is moot since McDaniel is no longer subject to the death penalty, see Lane v. Williams, 455 U.S. 624, 631 (1982). In any event it is barred by Walton v. Arizona, 110 S. Ct. 3047, 3057 (1990).

McDaniel contends the trial court's failure to notify him or his counsel of three notes submitted by the jury and responded to by the court violated his constitutional rights. We agree. United States v. Birges, 723 F.2d 666, 671 (9th Cir. 1984). However, McDaniel has not shown the error would have affected the outcome. Id. The judge's response that testimony of witnesses was not available was harmless in view of the court's right not to give the jury the requested evidence during deliberations. United States v. Castillo, 866 F.2d 1071, 1084 (9th Cir. 1988). The judge's response to the jury's questions about registration of the gun was no more than a brief factual comment on the evidence and therefore was not improper. See United States v. Steel, 759 F.2d 706, 711-12 (9th Cir. 1985).

The steps taken by the prosecution reflect a good-faith effort to locate Teresa Hill prior to submitting her preliminary hearing transcript as evidence. Ms. Hill was therefore unavailable, and the transcript, though hearsay, was properly admitteD. Ohio v. Roberts, 448 U.S. 56, 74-77 (1980). The fact that Ms. Hill was in state prison at some point during the relevant period does not establish her availability.

McDaniel contends his trial counsel was ineffective on six grounds. The fifth and sixth claims are procedurally barred,3  and McDaniel does not demonstrate cause and prejudice to excuse his default. McDaniel's first four claims (a breakdown in communication based on counsel's failure to examine witnesses, to object to the introduction of evidence, to question defendant more fully and to pursue an alibi defense) fail to meet either the unreasonable performance or prejudice prongs of Strickland v. Washington, 466 U.S. 668, 689 (1984).

McDaniel challenges the trial court's admission of a gun and the testimony of Denise Androvondi. The Arizona Supreme Court found both admissible under state law. These rulings did not "rise to constitutional dimension." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Nor did the prosecutor's allegedly improper closing argument so prejudice McDaniel's defense as to deny him due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974).

The trial court properly prohibited McDaniel's counsel from putting two accomplices on the stand, finding after an in camera hearing that the witnesses could legitimately refuse to answer all relevant questions. See United States v. Tsui, 646 F.2d 365, 368 (9th Cir. 1981).

The Arizona Supreme Court concluded the state did not have the interview notes of Ken Chambers. State v. McDaniel, 665 P.2d 70, 77 (Ariz.1983). The district court held this factual finding presumptively correct. Accordingly no violation of Brady v. Maryland, 373 U.S. 83 (1973), occurred.

AFFIRMED on all but the issue of credit due for time served prior to resentencing; REMANDED for a determination of that issue only.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Although the state argues McDaniel failed to exhaust state remedies, the state raised this defense in the district court only as to a single claim that is not before this court. See Granberry v. Greer, 481 U.S. 129, 131-35 (1986). We reach the merits because no unresolved issues of fact or state law are presented and the interests of comity and federalism will be better served. Id. at 134-35

 2

McDaniel claims the change from concurrent to consecutive sentences violated the double jeopardy clause. We dispose of this issue in a separate per curiam opinion filed this date

 3

In its decision on McDaniel's motion for post-conviction relief, the Maricopa County Superior Court said these claims had been waived under Ariz.R.Crim.P. 32. The court's statement meets the requirements of Harris v. Reed, 489 U.S. 255, 262-63 (1989)