832 F.2d 476
24 Fed. R. Evid. Serv. 321
Jimmie Wayne JEFFERS, Petitioner-Appellant,v.James R. RICKETTS, Director, Arizona Department ofCorrections;  Donald Wawrzaszek, Superintendent,Arizona State Prison, Respondents-Appellees.
No. 86-1840.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 13, 1987.Decided Nov. 9, 1987.

Donald S. Klein, Frank P. Leto, Tucson, Ariz., for petitioner-appellant.
Gerald R. Grant, Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before PREGERSON and CANBY, Circuit Judges and WILSON*, District Judge.
CANBY, Circuit Judge:

1
Jimmie Wayne Jeffers appeals the dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. Sec. 2254.  Jeffers' habeas petition challenges his convictions for assault with a deadly weapon and first degree murder and his sentence of death.  We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.FACTS AND PROCEDURAL HISTORY

2
Jeffers' was convicted of murdering Penelope Cheney and of assaulting Doris Van der Veer with a deadly weapon.  Penelope Cheney had been Jeffers' girlfriend and had been arrested with Jeffers in May of 1976 on state charges of receiving stolen property.  Jeffers had posted bail for Cheney, but had been unable to post bond for himself and remained in custody at the Pima County Jail.  While in jail Jeffers received reports that Cheney had been cooperating with the police, providing information to them about Jeffers and certain heroin transactions.  Jeffers wrote a note to another jail inmate offering him money if he would kill Cheney.  The detention officer who was supposed to deliver the note read it and seized it.  Jeffers was finally released on bail in early October.

3
Later that same month, Jeffers was living with Doris Van der Veer in the Linda Vista Motel in Tucson, Arizona.  Jeffers sent a note to Cheney requesting that she meet with Jeffers.  On October 20th Jeffers told Van der Veer that Cheney was coming over and asked her to leave while Cheney was there.  Cheney arrived at the motel room when Jeffers and Van der Veer were there.  The two women met briefly and Van der Veer then went outside, leaving Jeffers and Cheney in the room.  Approximately two hours later Van der Veer returned to the motel room and knocked on the door.  Jeffers opened the door.  Jeffers had a gun in his hand;  Cheney was lying on the bed and appeared to be cyanotic.  While Van der Veer watched, Jeffers injected a liquid into Cheney's hand and said, "I have given her enough shit to kill a horse and this bitch won't die."    Jeffers told Van der Veer, a former licensed practical nurse, to check Cheney.  Cheney's heartbeat was faint, her breathing was labored, and a foamy fluid was coming out of her mouth.  Van der Veer asked if appellant was going to help Cheney.  He responded, "No, I'm going to kill her."    Jeffers straddled Cheney's body and began choking her, first with his belt and then with his hands.  After it appeared that she had died, Jeffers prepared another syringe and forced Van der Veer to inject heroin into Cheney's groin and hand.  He also told Van der Veer to get on top of Cheney and choke her.  He took photographs of both of these acts.  Jeffers then got on top of Cheney and began beating her with his hands.  As he did this, he called her a "bitch" and a "dirty snitch" and said, "This one is for [naming several names]."  Jeffers finally dragged Cheney's body into the bathroom and put it in the shower.

4
The body remained in the shower for three days.  When the body began to smell, Jeffers and Van der Veer wrapped it in garbage bags and put it in a sleeping bag.  That night they put the body in the trunk of Van der Veer's car.  Jeffers and Van der Veer took Cheney's body to a place near Sedona, Arizona, and buried it in a shallow grave.

5
On February 9, 1978, a jury found Jeffers guilty of first-degree murder and assault with a deadly weapon.  The trial judge sentenced Jeffers to death on the first degree murder conviction.  He also sentenced Jeffers to not less than 5 nor more than 10 years in prison on the assault conviction.  Jeffers appealed from the judgments and the sentences imposed.

6
As a result of the appeal, Jeffers was resentenced on the murder conviction.  On July 10, 1980, the trial court found two aggravating circumstances and no mitigating circumstances, and again imposed the death penalty.  The Arizona Supreme Court affirmed both the convictions and the sentences.    State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983).  The sole aggravating circumstance upheld by the Arizona Supreme Court was that Jeffers had committed the murder "in an especially heinous ... or depraved manner."    Ariz.Rev.Stat.Ann. Sec. 13-703(F)(6).  The Supreme Court of the United States denied certiorari.    Jeffers v. Arizona, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).

7
On December 2, 1983, Jeffers filed a petition for writ of habeas corpus in the district court.  He subsequently filed an amended petition and requested an evidentiary hearing.  On Feb. 4, 1986, the district court denied Jeffers' motion for evidentiary hearing and dismissed his petition.    Jeffers v. Ricketts, 627 F.Supp. 1334 (D.Ariz.1986).  Jeffers appealed to this court on Feb. 27, 1986.

DISCUSSION
A. Issues

8
Jeffers raises some 13 questions for our consideration.  Because we find that Jeffers was unconstitutionally sentenced to death, we need not reach some of the issues he presents.  The questions we address are:

9
1.   Did the prosecutor's refusal to grant immunity to a defense witness, while granting immunity to four state witnesses, violate Jeffers' sixth amendment right to compulsory process, thereby denying due process?

10
2. Did certain evidentiary rulings at his trial deprive Jeffers of due process?

11
3. Did the introduction of evidence of other "bad acts" deny Jeffers a fair trial?

12
4. Was Jeffers denied due process of law when he made a single appearance before the jury in jail clothing?

13
5. Was Jeffers denied an impartial sentencing tribunal?

14
6. Was Arizona's standard of aggravation for murder committed in an "especially heinous ... or depraved manner" constitutionally applied to Jeffers?

B. Matters Concerning the Trial

15
1. Refusal to grant immunity to defense witness

16
Jeffers contends that refusal to grant immunity to a defense witness, when the state had previously offered and granted immunity to four state witnesses, violated Jeffers' sixth amendment right to compulsory process and denied him due process of law.  The state granted immunity to Doris Van der Veer, Ramona Eppling, Sharon Galarza, and Rich Honton.  The state refused to grant immunity to Louis Rosso, who was called to the stand to help Jeffers establish his alibi defense.

17
Denial of immunity for a defense witness can violate due process.    United States v. Lord, 711 F.2d 887 (9th Cir.1983).  The defendant is entitled to an evidentiary hearing if he makes "an unrebutted prima facie showing of prosecutorial misconduct that could have prevented a defense witness from giving relevant testimony."    Id. at 891.  In order to make a prima facie showing of prosecutorial misconduct, a defendant has the burden of showing, first, that the evidence was relevant and, second, that the prosecution deliberately intended to distort the judicial factfinding process by denying immunity to the defense witness.  Id. (citing with approval Government of Virgin Islands v. Smith, 615 F.2d 964, 968 (3d Cir.1980)).  Jeffers has not met his burden.

18
Jeffers testified that on the day that Cheney died, he was out making a heroin purchase.  Earlier in that week Van der Veer and Jeffers had made a purchase from Louis Rosso.  Van der Veer testified that on that occasion Rosso had sold Jeffers enough heroin to satisfy Jeffers' needs for several days.  Her testimony therefore made Jeffers' alibi that he was out buying heroin somewhat less credible.  According to Jeffers, Rosso would have testified that he had only sold Jeffers a small quantity of heroin.  Although neither clearly exculpatory nor essential to the defense, Rosso's testimony would have been relevant, satisfying one element of the Lord test.

19
There is, however, no evidence whatsoever of prosecutorial misconduct.  The defense did not make known until the middle of the trial that it intended to call Rosso.  There is no suggestion that the prosecutor made any threat to Rosso that induced him to invoke the fifth amendment, as was prima facie shown to have occurred in Lord, 711 F.2d at 891.  Nor is there any showing that the prosecution presented a distorted factual picture by immunizing its witnesses to testify to one side of a story while denying immunity to defense witnesses who would present the other side.    See United States v. Alessio, 528 F.2d 1079, 1080-82 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976);  United States v. Paris, 812 F.2d 471, 477 (9th Cir.1987).  Jeffers' challenge therefore fails the second prong of the Lord test.    See United States v. Disla, 805 F.2d 1340, 1353 (9th Cir.1986).  He has made no prima facie showing that the decision not to grant immunity to Rosso denied him a fair trial.  We affirm the district court's decision on this issue.

2. Evidentiary rulings

20
Jeffers contends that evidentiary rulings in capital cases must meet a standard of "extra reliability."    He draws support from the plurality opinion in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which stated that "[i]n capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability."    Id. at ----, 107 S.Ct. at 2603, 91 L.Ed.2d at 347.  Insofar as Jeffers' argument suggests that evidentiary rulings and their review are subject to a totally different methodology in capital cases from that in all other criminal cases, we do not accept it.  We readily agree, however, that we must review capital cases with heightened concern for the reliability of the state court's procedures, see Spaziano v. Florida, 468 U.S. 447, 456, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984), because "the penalty of death is qualitatively different from a sentence of imprisonment, however long."    Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion of Stewart, J.).  Even by that standard, however, we find that none of the challenged state court evidentiary rulings amount to constitutional error.

21
a. Exclusion of Myron McRoberts' Testimony

22
In order to show that only Van der Veer, and not Jeffers, was with Cheney at the time of her drug overdose and death, the defense called Myron McRoberts, a guest at the motel.  He testified that he saw Van der Veer and a blonde woman (presumably Cheney) leave the motel together on the day in question.  Among the reasons offered by McRoberts why he remembered the events on the day of Cheney's death, more than 14 months prior to his testimony, was that he was told "there [was] a cute blonde in room 7."    The trial court excluded that statement, and Jeffers contends that the court erred.  The Arizona Supreme Court held that the evidence was improperly excluded as hearsay, but that the error was harmless.  We find no constitutional error.  The evidence was cumulative of other testimony offered by McRoberts.  Its exclusion will not support the granting of habeas corpus relief.

23
b. Prior "bad acts" involving Cheney

24
Jeffers also contends that the trial court committed constitutional error when it admitted statements of Cheney through the testimony of Edith Meck, the manager of the apartment complex where Jeffers was living at the time, and of Nurse Ramirez, a nurse at Tucson Medical Center where Cheney went to be treated in November of 1975.  Meck testified that Cheney said that Jeffers had drugged her and had thrown her through the bedroom window.  Ramirez testified that Cheney said that her boyfriend had drugged her and that she had jumped through the bedroom window because she feared further violence from Jeffers.  The Arizona Supreme Court held that the statement made to Meck was properly admitted under the excited utterance exception to the hearsay rule.  It held that most of the statement made to Ramirez was properly admitted under the medical treatment exception.  The comment that her boyfriend had drugged her was held improperly admitted, but harmless, because it was cumulative of the properly admitted statements made to Meck.

25
The inability to cross-examine the declarant Cheney did not deprive Jeffers of a fundamentally fair trial.    See Barker v. Morris, 761 F.2d 1396 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986).  The confrontation clause permits the introduction of out-of-court statements if they are both necessary and reliable.    Barker, 761 F.2d at 1399.  The statement was sufficiently reliable as an excited utterance.    See, e.g. State v. Peeler, 126 Ariz. 254, 614 P.2d 335 (Arix.App.1980).  Moreover, Cheney's statements were partially corroborated by independent evidence.

26
Cheney's statements were also necessary.  At trial Jeffers contended that he loved Cheney and that he would be unable to hurt her.  The challenged testimony was necessary to rebut this contention.  We conclude that the admission of Cheney's statements to Meck and Ramirez did not deprive Jeffers of a fair trial.

3. Other "bad acts" testimony

27
Jeffers contends that the admission of evidence of other "bad acts" denied him a fair trial.  The evidence of prior bad acts was elicited through the testimony of the immunized witness Sharon Galarza.  Galarza testified that Jeffers had committed other acts of violence, including assaults with drugs, knives and guns, upon Galarza, Cheney, and others.  For Galarza's willingness to testify for the prosecution, the state dropped drug and prostitution charges against her.  Her testimony is reported in State v. Jeffers, 135 Ariz. at 416-17, 661 P.2d at 1117-18.

28
Rule 404(b) of the Arizona Rules of Evidence, like the federal rule, forbids admission of evidence of a defendant's prior crimes, wrongs, or acts "to prove the character of a person in order to show that he acted in conformity therewith."    The trial court instructed the jury that it could consider the evidence of bad acts to show a common scheme or plan, identity, or other similar purposes.  On appeal, the Arizona Supreme Court held that the evidence of bad acts was admissible, not to show a common plan or identity, but as an explanation why the murder was not reported sooner by those who were threatened.

29
Jeffers argues that the evidence ought not to have been admitted, but he offers no reason why the Arizona Supreme Court's ruling was erroneous.  Our review of the record discloses no ground for concluding that the admission of the evidence denied Jeffers a fair trial.    See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986).  Jeffers' real complaint is that the evidence was admitted under on theory by the trial court, and the jury was so instructed, while the Arizona Supreme Court held the evidence admissible on a different theory.

30
An erroneous instruction by itself justifies habeas relief only if it "so infected the entire trial that the resulting conviction violates due process."    Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).  The trial court's instruction had no such effect.  Nor did it lead to the evil that Rule 404(b) is intended to prevent.  Under the trial court's instructions, the jury was not permitted to consider the evidence of bad acts to prove Jeffers' character in order to show that he acted in conformity with that character.  The district court did not err in denying habeas relief.

31
4. Appearance before the jury in jail clothing

32
Jeffers contends that his trial was rendered unfair by his involuntary appearance before the jury in readily identifiable jail clothing.  The facts surrounding the issue are not in dispute.  On one occasion Jeffers appeared before the jury in his jail clothing after telling his jailor that he didn't want to wear his civilian clothing to court.  In order to prevail on this issue, Jeffers must establish that the appearance in jail clothing was involuntary, Bentley v. Crist, 469 F.2d 854, 856 (9th Cir.1972);  that a juror would recognize the clothing as issued by a jail, United States v. Rogers, 769 F.2d 1418, 1422 (9th Cir.1985);  and that the error was not harmless.  Jeffers cannot meet his burden.  The choice of apparel was his, the clothing was not readily identifiable, and the jury already knew that Jeffers had been incarcerated.  During voir dire the jurors were informed of Jeffers' efforts to escape from the Pima County Jail.  We affirm the district court's denial of habeas relief on this ground.

C. Sentencing Matters

33
1. Denial of an impartial sentencing tribunal

34
Jeffers contends that his constitutional rights were violated when he was resentenced by Judge Birdsall, the judge who had originally sentenced him.  After the initial sentencing, Judge Birdsall became the recipient of a "mail order blitz."    The Judge filed a complaint with the postal authorities and Jeffers' name was provided to investigators as the likely source of the unwanted mailings.  Jeffers admitted to his part in the mailings;  the mail blitz ceased;  and no charges were brought against Jeffers.  At his later resentencing, Jeffers filed a motion for a new judge.  An evidentiary hearing was held before a different judge and his motion was denied.  The Arizona Supreme Court upheld the lower court's findings that Jeffers had failed to establish bias.  It also observed that bias caused by a defendant's voluntary conduct ought not to be ground for disqualification.

35
The district court found that Jeffers had received a full and fair evidentiary hearing in state court and that there was, therefore, no need for an evidentiary hearing in federal court.  After reviewing the evidence, the district court found that Judge Birdsall's conduct fell short of any constitutional bias.  We agree.  We reject Jeffers' contention that there was an appearance of impropriety that required the district court to hold an evidentiary hearing.  Jeffers was not treated unfairly in the circumstances he brought into being.  The district court did not err in its ruling.

36
2. Application of the "especially heinous, cruel or depraved" aggravating circumstance

37
Jeffers contends that Arizona's statute prescribing the death penalty when the murder was committed in an "especially heinous, cruel, or depraved manner" is unconstitutionally vague on its face and as applied.  See Ariz.Rev.Stat.Ann. Sec. 13-703(F)(6) (1982).  His argument that the statute is void on its face is foreclosed by our decision in Chaney v. Lewis, 801 F.2d 1191, 1194-96 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987).  There, we rejected a similar challenge to the same statute, pointing out that "[a]lthough the statutory language is broad, as any murder could be considered cruel, heinous, or depraved, the Arizona Supreme Court need not construe the statute open-endedly."    Id. at 1195.  In so stating, we were echoing the plurality opinion in Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976), where the Court upheld a Georgia statute providing a death penalty if a murder was " 'outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.' "    Id. (quoting Ga.Code Ann. Sec. 27-2534.1(b)(7);  see also Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976) (plurality opinion).

38
In Chaney, we also stated that "[t]he Arizona Supreme Court appears to have sufficiently channeled sentencing discretion to prevent arbitrary and capricious capital sentencing decisions."    Chaney, 801 F.2d at 1195.1   Finally, we held that the death sentence imposed upon Chaney was consistent with the Arizona law as established by the Arizona Supreme Court:  the murder was cruel because the victim suffered greatly, and was depraved because Chaney's helpless victim (a sheriff's deputy) was shot in the back when Chaney could have made his escape without again shooting the victim.  Id.

39
While Chaney establishes that the Arizona statute is not void on its face and is capable of constitutional application, it naturally does not answer the question whether the Arizona statute was constitutionally applied to Jeffers in this case.  In any individual application, the statute must not be so broadly construed that "[t]here is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not."    Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (plurality opinion).  After reviewing the Arizona Supreme Court cases defining "especially heinous ... or depraved," we conclude that Jeffers' death sentence violated the Eighth and Fourteenth Amendment.  See id. at 423, 100 S.Ct. at 1762.

40
"Heinous" and "depraved" are inherently more difficult terms to define than is "cruel."2   The Arizona Supreme Court has defined cruelty to include the infliction of physical and mental pain on the victim.    State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).  Especially cruel murders involve the senseless or sadistic infliction of great pain.    State v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979).  In order to establish that a murder is especially cruel, the court must find beyond a reasonable doubt that the victim was conscious and able to suffer physical pain and mental anguish.  Id.  The Arizona Supreme Court held that such evidence was lacking in Jeffers' case.    State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130 (1983).  Jeffers' death sentence accordingly rests on the application of the more elusive standard of murder committed in an "especially heinous ... or depraved manner."

41
The Supreme Court of Arizona has adopted dictionary definitions of "heinous" as "hatefully or shockingly evil;  grossly bad" and of "depraved" as "marked by debasement, corruption, perversion or deterioration."    State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).  Both terms "go to the mental state and attitude of the perpetrator as reflected in his words and actions."    State v. Gretzler, 135 Ariz. at 51, 659 P.2d at 10.  In Gretzler, the Arizona Supreme Court set forth factors which lead to a finding of heinousness or depravity, with examples of all but one.  They were:

42
(1) a relishing of the murder by the killer.    See State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980) (defendant murdered four people and "kept a spent bullet as a grisly souvenir of his crime");  State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980) (defendant killed victim by repeated blows with hammer, tied him up, caused him to fall down mine shaft, threw rocks on victim as he lay twitching, drove away saying "Good-by Norman.  I hope we never see you again").

43
(2) gratuitous violence against the victim.    See State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980) (defendant shot female victim twice, dragged her into another room and shot her four more times in head for no apparent reason;  shot male victim three times and, after he had fallen, shot him once more in back and then kicked him repeatedly when victim was unconscious or dead).

44
(3) needless mutilation of the victim.    See State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981) (defendant strangled cellmate, then carved words "Bonzai" into victim's back);  State v. J.C. Smith,3 131 Ariz. 29, 638 P.2d 696 (1981) (defendant mutilated female murder victims' breasts and genitalia).

45
(4) senselessness of the crime.    See State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982) (unnecessary murder of victims, including two-year-old child, in no position to thwart murderer's escape);  State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982) (defendant stabbed woman to death and then indiscriminately attacked her children, attempting to stab and burn them to death).

46
(5) helplessness of the victim.

47
Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12.  The last two factors, senselessness of the crime and helplessness of the victim, need not always lead to a finding that a murder is heinous or depraved, however.    Id. at 53, 659 P.2d at 12;  See also State v. B. Smith, 146 Ariz. 491, 503, 707 P.2d 289, 301 (1985).

48
Illumined as the above standard is by the case examples furnished by the Arizona Supreme Court, it seems to call for conduct or attitudes more shocking than those exhibited by Jeffers.  We do not minimize Jeffers' conduct;  murder is a grisly affair and this one certainly qualifies.  Nevertheless, the Arizona Court on more than one occasion has emphasized that, "because most first degree murders are cruel, heinous and depraved the statutorily required inquiry with respect to imposition of the death penalty is whether the conduct was especially cruel, heinous or depraved."    State v. Johnson, 147 Ariz. 395, 401, 710 P.2d 1050, 1056 (1985);  See State v. B. Smith, 146 Ariz. at 503, 707 P.2d at 301;  State v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979).  That Jeffers' crime cannot meet this rigorous standard becomes even more apparent when his case is compared with those in which the Supreme Court of Arizona found that one or more of the components of heinousness and depravity had not been shown.

49
The Supreme Court of Arizona held that Jeffers had "relished" his crime:

50
[W]hile Jeffers was beating the [dead] victim he called her "a bitch and a dirty snitch" and with each striking blow said, "This one is for so and so.  [naming several names].  This evidences the relish with which appellant committed the murder....  [W]e find that the remarks made by appellant, while at the same time beating his victim, establish that the offense was committed in an especially heinous and depraved manner.4

51
Jeffers, 135 Ariz. at 430, 661 P.2d at 1131.  Yet in State v. R.D. Smith, 138 Ariz. 79, 673 P.2d 17 (1983), the Arizona Supreme Court held that a defendant had not been shown to have exhibited a heinous and depraved attitude when he had repeatedly raped the murder victim and had requested the playing of a tape "We are the Champions."5   Id. at 86, 673 P.2d at 24.  And in State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983), a defendant who shot his victim was not shown to have demonstrated a heinous or depraved attitude when he smiled and told his companion that the victim had "squealed like a rabbit" when shot.    See also State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979) (murder not committed in heinous or depraved manner when a defendant shot victim once in back, told groaning victim "Don't worry * * * it will be over soon" and shot him again, placed victim's body in victim's van and abandoned van at airport).

52
Of all of the components of heinousness and depravity set forth by the Arizona Supreme Court in Gretzler, none is more subjective than the relishing of the crime by the defendant.  When remarks made by the defendant at the time of the crime are used to establish especial heinousness and depravity, the distinction between ordinary and especial depravity must be clear in order to avoid arbitrary application of the standard.  We conclude that the line is not clear in this case, and that Jeffers' remarks provide "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not."    Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (plurality opinion).6

53
The other factor that the Arizona Supreme Court relied upon to support a finding of heinousness or depravity was the infliction of gratuitous violence upon the victim after death.  Jeffers climbed on top of the dead victim and hit her several times in the face, while making the remarks referred to above.  Here again, the level of objectionable conduct was far below that in the case the Court principally relied on, State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980), and was wholly unaccompanied by mutilation in any meaningful sense of that term.  We are unable to find a principled means of distinguishing the depravity of Jeffers' conduct from that in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979) (robber in shootout shoots victim in back four times, the last time while victim is face down on floor;  held not heinous or depraved), or State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (evidence that victims, who may have been unconscious, were placed in weighted sacks and submerged in lake not sufficient to show heinousness or depravity).  Nor, at the level of violence displayed by Jeffers, are we able to attach controlling significance to the fact that the victim had passed from unconsciousness to death by the time Jeffers inflicted the blows.7   He displayed no state of mind that signifies a level of depravity greater than those found not to meet the definition of "especially heinous ... or depraved" in the cases last cited.8

54
Because we conclude that the standard of heinousness and depravity delineated in prior Arizona cases cannot be applied in a principled manner to Jeffers, his death sentence must be struck down as arbitrary.    See Godfrey, 446 U.S. 432-33, 100 S.Ct. at 1767.  In so ruling, we are mindful of the recent decision of the United States Supreme Court in McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).  There the Court stated that "absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty."    Id. 107 S.Ct. at 1774.  In further explanation, the Court quoted Gregg v. Georgia, 428 U.S. at 199, 96 S.Ct. at 2937, to the effect that "[n]othing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution."    Id.

55
Our ruling is not contrary to these principles.  No acts of prosecutorial discretion or judicial clemency are involved in our comparisons.  The Arizona cases upon which we rely are those establishing the minimum requirements for the aggravating factor of especial heinousness or depravity.  While the Arizona Supreme Court is entitled to reweigh aggravating and mitigating factors in reviewing a capital case, e.g., State v. Johnson, 147 Ariz. 395, 400, 710 P.2d 1050, 1055 (1985), that de novo assessment is not the purport of its rulings holding that particular conduct falls outside the standard of heinousness or depravity.  Whether the conduct qualifies as heinous or depraved is a threshold issue, and the Arizona Supreme Court's rulings on that issue are part of the process of defining the standard.9   See Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986) ("aggravating circumstances are not separate penalties or offenses but are 'standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment.")  (quoting Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 1858, 68 L.Ed.2d 270 (1981)).  If the conduct is not heinous or depraved (and does not meet any of the other standards of aggravation), there is no opportunity for a discretionary act of mercy;  state law then precludes the death penalty.  Ariz.Rev.Stat.Ann. Sec. 13-703(E) (1982).  To apply the standard of especial heinousness and depravity to Jeffers case when the facts do not permit it is arbitrary or capricious, and is therefore an unconstitutional application of the standard.    See Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-65;  Gretzler, 135 Ariz. at 50, 659 P.2d at 9 (constitutional error may occur by court straying in an individual case from an otherwise constitutionally narrow construction).10

56
We emphasize, therefore, the nature of our decision.  We are not saying that Jeffers' conduct could not be punished by death under some different system of selecting penalties.  Our ruling is simply that Arizona's existing standard of aggravation for murder committed in an "especially heinous ... or depraved manner," as that standard has been defined and applied by the Supreme Court of Arizona, cannot be extended to Jeffers' case without losing its ability to distinguish in a principled manner between those it condemns to death and those it does not.

57
The writ must therefore issue to vacate Jeffers' sentence on his murder conviction, subject to the state's resentencing him consistently with the Constitution within a reasonable period of time.  Our ruling makes it unnecessary for us to reach additional questions Jeffers raises concerning his death penalty.11CONCLUSION

58
The judgment of the district court is affirmed insofar as it upholds Jeffers' convictions of murder and aggravated assault, and his sentence on the assault conviction.  The judgment is reversed insofar as it upholds Jeffers' death sentence.  The case is remanded to the district court with instructions to issue a writ with regard to Jeffers' death sentence, subject to the State's resentencing him within a reasonable period of time.

59
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

60
WILSON, District Judge (dissenting in part and concurring in part):

61
The majority concludes that the Arizona Supreme Court, in affirming petitioner's death sentence, adopted such a broad construction of Arizona Revised Statute Sec. 13-703(F)(6) as to violate the Eighth and Fourteenth Amendments to the United States Constitution.  Because I believe the majority is doing little more than second-guessing the Arizona Supreme Court's interpretation of facts that quite reasonably fit within the statutory definition of aggravating circumstances, I dissent.1

STANDARD OF REVIEW

62
Generally, a federal court in a habeas corpus proceeding must accord a presumption of correctness to a state court's factual findings.  28 U.S.C. Sec. 2254(d).  This statutory presumption, however, does not apply to questions of law or to mixed questions of law and fact.    Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982);  Fendler v. Goldsmith, 728 F.2d 1181, 1191 n. 21 (9th Cir.1983).  Rather, the federal court reviews such non-factual questions de novo.    Chaney v. Lewis, 801 F.2d 1191, 1194 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987);  Fendler, 728 F.2d at 1191 n. 21 (federal courts are "obligated to conduct a complete and independent review of all purely legal or mixed fact and law questions raised by [a state prisoner's] habeas corpus petition").

63
Some federal courts in habeas proceedings have applied the presumption of correctness under Sec. 2254(d) to state court findings of aggravating circumstances.    See Woratzeck v. Ricketts, 820 F.2d 1450, 1459 (9th Cir.1987) (finding of "cruel, heinous, or depraved" aggravating circumstances by Arizona Supreme Court presumed correct under Sec. 2254(d));  Magwood v. Smith, 791 F.2d 1438, 1449 (11th Cir.1986) (existence of aggravating or mitigating circumstance a question of fact subject to review under Sec. 2254(d)).  These courts, however, appear to have applied the presumption without considering whether the finding of an aggravating circumstance is a question of fact or a mixed question of fact and law.

64
A state court conclusion that the defendant killed in a "heinous, cruel, or depraved" manner appears to be a mixed question of fact and law.    Chaney, 801 F.2d at 1194.  The court must first determine that the defendant engaged in certain conduct (e.g., beat the victim after she was dead), and then, by reference to the decisions of the state supreme court, conclude that such conduct meaningfully distinguishes the defendant from the "usual or norm of first degree murders."    As a mixed question of fact and law, the state court finding is not entitled to a presumption of correctness.2

65
On the other hand, the state court's conclusion that the defendant killed in a "heinous, cruel or depraved" manner should not be subject to de novo review.  The United States Supreme Court has stated that its review of state court findings of aggravating circumstances is "limited to the question whether they are so unprincipled or arbitrary as to somehow violate the United States Constitution."    Barclay v. Florida, 463 U.S. 939, 947, 103 S.Ct. 3418, 3423, 77 L.Ed.2d 1134 (1983) (plurality).  The Ninth Circuit has interpreted this language to support deferential habeas corpus review of aggravating circumstances.    Adamson v. Ricketts, 758 F.2d 441, 450 (9th Cir.), withdrawn, 764 F.2d 1343 (9th Cir.1985), reh'g en banc, 789 F.2d 722 (9th Cir.), cert. granted, --- U.S. ----, 107 S.Ct. 62, 93 L.Ed.2d 21 (1986).

66
Deferential review is justified by the presence of "procedural protections intended to ensure that the death penalty will be imposed in a consistent, rational manner."    Barclay, 463 U.S. at 960, 103 S.Ct. at 3430 (Stevens, concurring).  Where the state's sentencing procedures "focus discretion on 'the particularized nature of the crime and the particularized character of the defendant,' we lawfully may presume that [defendant's] death sentence was not 'wantonly and freakishly' imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment."    McClesky v. Kemp, --- U.S. ----, ----, 107 S.Ct. 1756, 1775, 95 L.Ed.2d 262 (1987) (emphasis added).3

67
The Arizona capital sentencing process contains the appropriate checks on arbitrariness.  The procedural protections include bifurcation of the penalty phase, statutorily-defined aggravating and mitigating circumstances which must be proved beyond a reasonable doubt, written findings by the sentencing body, and automatic review by the state supreme court.    See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).  On review, the Arizona Supreme compares "each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate."    Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976);  State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51, cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).  Moreover, the Arizona Supreme Court has demonstrated an ability to rationally apply the statutory aggravating and mitigating circumstances.    See State v. Gretzler, 135 Ariz. 42, 52-53, 659 P.2d 1, 11-12, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) and cases cited therein.

68
Where a state's capital sentencing process is procedurally sound and responsibly managed, I believe the correct standard of review is "whether 'any rational factfinder' could have found the existence of aggravating circumstance[s]."  Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality) (White, J. dissenting) (quoting Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979)).4CONSTITUTIONAL QUESTION

69
Despite the open-ended language contained in Ariz.Rev.Stat. Sec. 13-703(F)(6), providing the penalty of death for those who commit murder in a "heinous, cruel, or depraved" manner, the Arizona death penalty statute passes constitutional muster by virtue of the narrowing constructions available through the Arizona Supreme Court.    Chaney v. Lewis, 801 F.2d at 1195.  The majority, however, holds that the Arizona Supreme Court's application of the death penalty statute to petitioner violates the constitution.

70
A. Analysis Under the "Rational Factfinder" Standard of Review

71
The Supreme Court of Arizona has set forth in considerable detail those factors which support a finding that a murder was committed in an "especially heinous, cruel, or depraved" manner.    See Gretzler, 135 Ariz. at 51-53, 659 P.2d at 10-12.  In particular, the Arizona Supreme Court has identified the defendant's relishing of the killing and the infliction of gratuitous violence as two bases for finding a heinous or depraved attitude.  Id.  Given the parameters identified by the Arizona Supreme Court, I believe a "rational factfinder" could have found the existence of aggravating circumstance Sec. 13-703(F)(6).

72
The Arizona Supreme Court found that Jeffers had relished the killing:

73
[W]hile Jeffers was beating the [dead] victim he called her "a bitch and a dirty snitch" and with each striking blow said, "This one is for so and so."    [naming several names].  This evidences the relish with which appellant committed the murder....  [W]e find that the remarks made by appellant, while at the same time beating his victim, establish that the offense was committed in an especially heinous and depraved manner.5

74
State v. Jeffers, 135 Ariz. 404, 430, 661 P.2d 1105, 1131, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).  This is a rational finding based on petitioner's words and actions.

75
The Supreme Court of Arizona additionally found that Jeffers had inflicted "gratuitous violence."    Id.  The record shows that Jeffers "climbed on top of the dead victim and hit her in the face several times which eventually resulted in additional wounds and bleeding."    Id.  Based on these facts, the Arizona Supreme Court could rationally find that the petitioner inflicted gratuitous violence:  "In short, it was this additional violence, over and above that which was necessary to carry out the defendant's criminal intent, that in effect distinguishes the [defendant's murder] from the 'usual or the norm' of first degree murders."    State v. Ceja, 115 Ariz. 413, 417, 565 P.2d 1274, 1278 (1977).  In light of the factual grounds for finding that the petitioner "relished" the act of killing and inflicted "gratuitous violence," the Arizona Supreme Court could rationally conclude that Jeffers' committed murder in an "especially heinous, cruel, or depraved manner."

76
B. Analysis Under the De Novo or "Independent" Standard of Review

77
The majority acknowledges that the Arizona Supreme Court has adopted standards which narrow the class of first degree murderers who may be put to death, but concludes that a finding of aggravating circumstances under Sec. 13-703(F)(6) "seems to call for conduct or attitudes more shocking than those exhibited by Jeffers."    Ante at 484.  In holding that Jeffers' conduct is not sufficiently objectionable, this Court simply substitutes its judgment for the judgment of the Arizona Supreme Court.  Nothing in the Eighth or Fourteenth Amendments permits this result.

78
The majority's reliance on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality) is misplaced.  There the Georgia Supreme Court affirmed a death sentence without articulating how the defendant's actions differed from the norm of first degree murders.  The United States Supreme Court reversed the death sentence, finding that it had been imposed in a "standardless and unchanneled" fashion.    Id. at 429, 100 S.Ct. at 1765.  As Justice Marshall wrote, it was not a question of whether the facts supported the jury's finding:

79
"As in any case raising issues of vagueness, the question is whether the court below has adopted so ambiguous a construction of the relevant provision that the universe of cases it comprehends is impermissibly large, thus leaving undue discretion to the decisionmaker and creating intolerable dangers of arbitrariness and caprice."

80
446 U.S. at 420 n. 1, 100 S.Ct. at 1762 n. 1 (concurring opinion).

81
The Arizona Supreme Court, unlike its counterpart in Godfrey, "has gone to great lengths to precisely define and correctly apply Ariz.Rev.Stat. Sec. 13-703(F)(6)."    Adamson v. Ricketts, 758 F.2d at 451.  In finding that Jeffers committed his crime in a heinous or depraved manner, the Arizona Supreme Court identified the specific conduct which, in its judgment, set this murder apart from other first degree murder:  (1) He climbed on to his dead victim;  (2) repeatedly struck her in the face so as to draw blood;  (3) called her a "bitch and a dirty snitch," and, (4) with each blow, said, "This one is for so and so."    See State v. Jeffers, 135 Ariz. 404, 430, 661 P.2d 1105, 1131, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).  The Arizona Supreme Court further explained how petitioner's conduct satisfied Sec. 13-703(F)(6) under existing Arizona precedent.  By repeatedly striking his victim in the face after she was dead, Jeffers inflicted "gratuitous violence," and by the remarks he made while inflicting this additional violence, Jeffers showed he "relished" the killing.  Id.

82
The majority attacks this finding not on the basis that it is "standardless and unchanneled" under Godfrey, but that it does not comport with other decisions of the Arizona Supreme Court.  The majority's conclusion that Sec. 13-703(F)(6) requires "conduct or attitudes more shocking than those exhibited by Jeffers," ante at 484, represents one possible reading of the Arizona death penalty statute and Arizona precedent, but the majority fails to show that this reading is constitutionally required.  The Arizona Supreme Court may constitutionally impose the death sentence on petitioner provided the court consistently applies the death penalty statute to other defendants in Jeffers' position.  The fact that Jeffers' conduct may lie close to the line separating ordinary first degree murders from "heinous, cruel, or depraved" killings--and could be interpreted to fall below the threshold for imposing the death penalty under current Arizona case law--does not give rise to a constitutional violation absent inconsistent determinations by the Arizona Supreme Court.6

83
In an effort to show that the Arizona Supreme Court's decision in Jeffers was so unprincipled that it violated the constitution, the majority undertakes a selective review of other Arizona death penalty cases.  The majority emphasizes those cases in which the defendant's conduct seemingly was more objectionable than Jeffers' but the Arizona Supreme Court did not find the defendant killed in a "heinous, cruel, or depraved" manner.7   None of the cited cases, however, involved conduct similar to Jeffers', and little can be distilled from broad comparisons.

84
In State v. R.D. Smith, 138 Ariz. 79, 673 P.2d 17 (1983), the Arizona Supreme Court found that the only evidence of a heinous or depraved mind was the uncorroborated testimony of a codefendant that Smith, the defendant, had requested the tape "We Are The Champions" be played at some stage during the kidnap-rape-murder.  The court found this to be insufficient evidence of heinousness or depravity, particularly in light of the defendant's suicide attempt, which was motivated in part by remorse.    Id. at 86, 673 P.2d at 24.  The finding in R.D. Smith is not inconsistent with the Arizona Supreme Court's finding that Jeffers "relished" the killing.  Unlike the defendant in R.D. Smith, Jeffers made statements that directly captured the gusto with which he killed, at the time he killed.8

85
In State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983), the court found insufficient evidence of a heinous or depraved attitude where the defendant, who was organically brain-damaged and highly impressionable, smiled while recounting that the victim "squealed like a rabbit" when shot.  The court concluded that "[w]hatever statements Graham may have made about the killings are more likely attributable to his immaturity, nervousness and need to impress his peers than to a hardened attitude towards the death of another."    Id. at 212, 660 P.2d at 463.  No such charitable interpretation can be given to the statements of Jeffers, made while repeatedly striking his dead victim in the face.

86
In State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979), the Arizona Supreme Court found that the defendant had not committed murder in an especially "heinous, cruel, or depraved" manner where he shot the victim in the back, told the groaning victim "Don't worry ... it will be over soon" and shot the victim again.  The court found that the defendant's words and actions, all in furtherance of a deliberate plan to "rip-off" a drug dealer and, in the process, impress other narcotics traffickers, failed to adequately distinguish the crime from other first degree murders.    Id. at 40-41, 601 P.2d at 1324-25.  Again, nothing in Brookover shows the Arizona Supreme Court inconsistently applied the death penalty statute to petitioner.  Jeffers did not commit "cold and deliberate homicide" as in Brookover;  rather, his words and actions show that he "relished" taking the life of a "dirty snitch."

87
The majority cites two additional cases to show the Arizona Supreme Court inconsistently found Jeffers to have inflicted gratuitous violence.  Both cases are readily distinguishable.

88
In State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), a robbery victim engaged the defendants in a shoot-out, and was shot four times in the back, the last time while face down on the floor.  In finding that the killing was not committed in an especially "heinous, cruel, or depraved" manner, the Arizona Supreme Court looked to the victim's role in bringing about his own death.  Id. at 447-48, 586 P.2d at 1260.  No such consideration is present here.

89
Likewise, State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985), aff'd 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), fails to be instructive.  There the court's inability to ascertain the exact circumstances of the victims' deaths precluded any finding that the murders were heinous or depraved.  Id. at 405, 698 P.2d at 200.  Nothing in Poland suggests that Jeffers' words and actions, established firmly on the record, fail to show depravity or heinousness.

CONCLUSION

90
The foregoing case-by-case analysis should be unnecessary.  As a federal habeas corpus court, we offer a limited forum for petitioner's collateral attack on his state court conviction and sentence.  Our duty is to ensure that the petitioner is not being held in violation of the constitution.  Our role does not extend to re-writing the law of Arizona to comport with our own interpretation of Arizona precedent.  Where state courts are responsibly and consistently interpreting state death penalty statutes which have been held to be constitutional, our review should be limited to whether "any rational factfinder" could have found the existence of aggravating circumstances.

*
 The Honorable Stephen V. Wilson, United States District Judge for the Central District of California, sitting by designation

1
 In Tison v. Arizona, --- U.S. ----, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), petitioners argued that Arizona had given an unconstitutionally broad construction to its aggravating factors in Sec. 13-703.  The Supreme Court held that the issue was not within the grant of certiorari, and expressed no opinion on it.  Id. at ---- n. 2, 107 S.Ct. at 1682 n. 2
The Tenth Circuit has recently held, en banc, that Oklahoma had failed to give an adequate narrowing construction to its aggravating factor of murder that is "especially heinous, atrocious, or cruel."    Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987) (en banc).

2
 This difficulty of definition is of major importance because Arizona, unlike some other states using similar standards, applies "heinous, cruel, or depraved" disjunctively.    State v. Richmond, 136 Ariz. 312, 319, 666 P.2d 57, 64, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983);  see Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987) (en banc) (disjunctive application of "especially heinous, atrocious, or cruel" struck down for lack of adequate narrowing construction);  Rosen, The "Especially Heinous" Aggravating Circumstance in Capital Cases--The Standardless Standard, 64 No.Car.L.Rev. 941, 980-82 (1986).  Problems of definition are considerably reduced under the Arizona standard when the facts of a case suggest both cruelty and depravity.  See, e.g., Chaney, 801 F.2d at 1195;  Woratzek v. Ricketts, 820 F.2d 1450, 1458 (9th Cir.1987) (amended opinion)

3
 Because there are several Arizona death penalty cases entitled State v. Smith, we have added initials to the Smith surnames

4
 The facts regarding Jeffers' conduct are drawn entirely from the testimony of Van der Veer, who testified under a grant of immunity.    See State v. R.D. Smith, 138 Ariz. 79, 87, 673 P.2d 17, 25 (1983) (Feldman, J., concurring and dissenting) (questioning death penalty imposed on strength of testimony of accomplice testifying under immunity), cert. denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984)

5
 The murder was found to have been especially cruel however, and the death sentence was accordingly affirmed.  Id. R.D. Smith, 138 Ariz. at 85, 673 P.2d at 23

6
 In rejecting Jeffers' petition, the district court referred to the fact that Jeffers had forced Van der Veer to choke the dead victim while he took pictures.  This fact was not relied upon as evidence of depravity by either the sentencing court or the Arizona Supreme Court.  Van der Veer testified that Jeffers told her the reason he was taking the pictures was to have proof that Van der Veer had been an accomplice

7
 It is not clear that the Arizona Supreme Court placed importance on the fact that the victim was dead rather than unconscious at the time of the blows.  In discussing the much greater level of gratuitous violence in State v. Ceja, the Court referred to repeated violence "although the victim was already unconscious or dead."    Jeffers, 135 Ariz. at 430, 661 P.2d at 1131 (emphasis added).    But see State v. Richmond, 136 Ariz. 312, 666 P.2d 57, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983), in which a majority of the Court (two concurring and one dissenting Justices) held the view that twice driving over a victim would not demonstrate depravity if the perpetrator had no way of knowing that the first run was sufficient to kill.  Id. at 323, 324, 666 P.2d at 68, 69

8
 The Arizona Supreme Court found it unnecessary to rule on whether Jeffers' disposing of the body in a shallow grave three days after the murder constituted further evidence of depravity.  We fail to see how this action of Jeffers can be differentiated from placing a victim alive in a weighted sack and sinking the sack into a lake, see Poland, 144 Ariz. 388, 698 P.2d 183 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), or abandoning the victim's body in the victim's own van, see Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979), both of which were held not to demonstrate depravity

9
 If the Arizona Supreme Court's rulings on aggravation were simple de novo applications of the bare phrases "heinous" and "depraved," rather than being part of a process of narrowing construction, the sentencing system would probably be invalid for lack of standards offering sufficient guidance in determining who should be sentenced to death.    See Gregg, 428 U.S. at 198, 200-03, 96 S.Ct. at 2937, Chaney, 801 F.2d at 1195.  We consequently are reviewing the Arizona Supreme Court's definition and application of a standard.    For that reason, we disagree with the views of the dissenting opinion that an examination of comparable Arizona cases should not be necessary, and that our review is confined to determining whether a rational factfinder could have determined Jeffers' crime to have been heinous or depraved

10
 Because we conclude that the application of the Arizona standard to Jeffers would violate the Eighth and Fourteenth Amendments, within the meaning of Godfrey and Gretzler, the writ may issue under 28 U.S.C. Sec. 2254(d)(7) against Jeffers' death sentence.  Jeffers' attack, and our analysis, is on the structure of the standard as applied to Jeffers.    See Chaney, 801 F.2d at 1194 ("since Chaney's claim raises no factual issues, his challenge to the constitutionality of the Arizona death penalty statute as applied is a purely legal question").  We are not dealing here with a simple finding of fact of the Arizona Court, which binds us if fairly supported in the record.  See id., at Sec. 2254(d)(8);  Woratzeck v. Ricketts, 820 F.2d 1450, 1458 (9th Cir.1987) (amended opinion)

11
 Among other issues, Jeffers contends that he is entitled to jury determinations of aggravating and mitigating factors.  He is not.    See Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340 (1984) (trial judge may override jury's recommendation of life imprisonment and sentence defendant to death)

1
 I concur with the majority opinion to the extent it affirms petitioner's conviction

2
 Even if the state court finding of aggravating circumstances is "essentially factual" so that it would be reviewed under the "clearly erroneous" standard if on direct appeal, see United States v. McConney, 728 F.2d 1195, 1199-1202 (9th Cir.)  (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), it is not an "issue of fact" subject to the presumption of correctness under Sec. 2254(d).  The presumption only applies to "basic, primary or historical facts:  'facts (in the sense of recital of external events and the credibility of their narrators).' "    Fendler, 728 F.2d at 1191 n. 21 (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963))

3
 The Eleventh Circuit until recently held that these procedural protections not only raised a presumption that the sentence was imposed consistent with the Constitution, but foreclosed federal review:
[w]here in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court.  This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, 'we may at times reach results different from those reached in the Florida state courts.'
Ford v. Strickland, 696 F.2d 804, 819 (11th Cir.)  (en banc) cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) (quoting Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)) (citations omitted).
The Eleventh Circuit has since abandoned its position of total deference to state court findings of aggravating and mitigating circumstances.  In Magwood, 791 F.2d at 1449, the court held that a federal habeas corpus court is not precluded from reviewing state fact-findings that determine the existence of a particular aggravating or mitigating circumstance.  The court additionally held that such findings are issues of fact, and are presumed to be correct under Sec. 2254(d).  Id.

4
 The majority does not identify the standard of review it applies in this habeas corpus proceeding, but it appears to be the "complete and independent" standard of review provided for in Fendler, 728 F.2d at 1191 n. 21

5
 The Arizona Supreme Court's findings of historical facts, such as what Jeffers said and did at the time of the killing, are presumed to be correct under 18 U.S.C. Sec. 2254(d).  The majority questions the strength of Van der Veer's testimony, see ante at 488 n. 4, but in no way shows that the state court findings are not "fairly supported by the record."    18 U.S.C. Sec. 2254(d)

6
 The majority in effect challenges the constitutionality of any capital sentencing system which recognizes an aggravating circumstance as open-ended as A.R.S. 13-703(F)(6).  Inevitably, courts must draw difficult lines between ordinary first degree murder and those murders which are committed in an "especially heinous, cruel, or depraved" manner.  But the constitution is satisfied where state courts draw lines based on "rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold [below which the death penalty cannot be imposed]."  McClesky v. Kemp, --- U.S. at ----, 107 S.Ct. at 1774 (emphasis added)

7
 These cases are relevant benchmarks to the extent that similar or worse conduct did not result in a finding of aggravating circumstances.  They help to answer a threshold question:  What is the minimum level of objectionable conduct required for a finding of aggravating circumstances under A.R.S. Sec. 13-703(F)(6)?    The decision in Jeffers is not undermined by those cases in which the Arizona Supreme Court found aggravating circumstances based on conduct more objectionable than Jeffers'.  Such cases say very little about whether Jeffers' conduct meets the threshold below which the death penalty cannot be imposed

8
 It is not clear that the defendant in R.D. Smith requested the tape be played while killing the victim, as opposed to raping her.  Under Arizona case law, the defendant must "relish the murder" for Sec. 13-703(F)(6) to be satisfied.    See Gretzler, 135 Ariz. 52, 659 P.2d at 10


735 F.Supp. 269 (1990)
UNITED STATES of America ex rel. Earl PETERSON, Petitioner,
v.
James A. CHRANS, Warden, and Neil F. Hartigan, Attorney General of Illinois, Respondents.
No. 87 C 8977.
United States District Court, N.D. Illinois, E.D.
March 22, 1990.
Robert J. Raab, Barnett and Raab, Chicago, Ill., for petitioner.
Terence Madsen, Asst. Atty. Gen., Gary H. Schwartz, Chicago, Ill., for respondents.

MEMORANDUM OPINION
BRIAN BARNETT DUFF, District Judge.
In January 1979, Earl Peterson and two other persons were indicted for murder, attempted murder, armed violence, and attempted armed robbery in Cook County, Illinois. One of Peterson's co-defendants pleaded guilty; Peterson and the remaining co-defendant were tried simultaneously with separate juries. Peterson and the prosecution picked the jury in Peterson's case on March 11-12, 1980. During selection, the trial judge criticized Peterson's attorney several times for writing down the addresses of prospective jurors. At one point, the trial court went so far as to prevent Peterson's attorney from even looking at his clerk's cards containing this information.
Shortly before lunch on March 12, 1980, the parties finished selecting Peterson's jury. After lunch, a deputy sheriff approached the bench. He told the court that one of the jurors "felt like he was the criminal.... He said they was writing down every word that was said, that they were taking notes on him and he thought maybe someone would, after this was over, and doesn't go their way, they would call his house and try to threaten him or talk to him about something." Supplemental Record B, 254.[1] Peterson's counsel first asked the court to "calm this juror down," id. at 256, and proceeded to argue with the court about Peterson's right to take notes. The trial judge initially indicated that he would not tell the juror anything. Peterson's *270 counsel then moved for a mistrial, without stating his grounds. Id. at 258.
The trial judge allowed Peterson's counsel to move for a mistrial, but reiterated his refusal to tell the jury anything about Peterson's right to have his counsel take notes. Peterson's counsel then asked "that the Court do something now to alleviate the fears of the juror who apparently is at this time in some way influenced against my client ... because of my action as his attorney in doing something." The court reassured counsel that he had not done anything wrong. Counsel and the court continued their debate over counsel's right to take notes. At the end of this discussion, Peterson's counsel asked the court once again to "make some effort to show the jurors nothing wrong occurred and the concerns they have should not exist." Id. at 258-60.
The court initially thought that "[t]he least said about it the better...." Id. at 260. Counsel dropped the matter. Later, after the jury for Peterson's co-defendant had heard opening statements, the court asked Peterson's jury to come to the court-room to hear opening statements in Peterson's case. At this point the court admonished the jury that "during the course of the trial, as during the voir dire when you were selected, counsel may take notes, as counsel uses those notes in order to conduct the trial. These notes, though, should be no concern to you as those notes do not figure to be misused." Supplemental Record A, 28.[2]
The trial proceeded, and the jury found Peterson guilty. The trial court sentenced Peterson to concurrent prison terms of forty years for murder, fifteen years for attempted murder, and five years for attempted armed robbery. Peterson appealed to the Illinois Appellate Court, and raised the issue of juror bias. The court affirmed Peterson's conviction in an unpublished order. Peterson's counsel then filed a timely Petition to Appeal to the Illinois Supreme Court. Peterson's counsel omitted the issue of juror bias from the petition, which the Illinois Supreme Court later denied.
Peterson petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Peterson first argued that the State of Illinois violated his constitutional rights by not allowing jurors at his trial to take notes. This court denied relief on this ground in an order dated September 26, 1989. Peterson's second argument was that his jury was biased against him, which deprived him of a right to an impartial jury under the Sixth and Fourteenth Amendments to the Constitution. The court appointed Peterson counsel to assist him in persuading the court that the court should grant the writ for this reason. Subsequently, Peterson amended his petition and raised a new ground for release, that his appellate counsel was ineffective for having omitted Peterson's claim of juror bias in Peterson's Petition to Appeal.
Peterson's claims are related. As the State rightly points out, Peterson could not seek release on account of a biased jury unless he shows cause for not having presented the issue of bias in his Petition to Appeal, and prejudice as a result. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Nutall v. Greer, 764 F.2d 462, 463-65 (7th Cir.1985). Peterson blames his appellate attorney for having omitted the issue in the Petition, and insists that the attorney's conduct amounted to ineffective assistance. Ineffective assistance also is the theme of Peterson's second claim.
The parties invite the court to resolve a question which may have split the court of appeals for this circuit. The panels on both sides of the proto-debate begin with the proposition that there is no constitutional right to counsel to pursue discretionary appeals in the state courts. See Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974). The court in Buelow v. Dickey, 847 F.2d 420, 426 (7th Cir.1988), reasoned from this (albeit *271 in dicta) that one could not claim cause sufficient to overcome Wainwright's procedural default rule by alleging ineffective assistance by appellate counsel. The court in dicta in a later case, Madyun v. Young, 852 F.2d 1029, 1033 & n. 2 (7th Cir.1988), suggested that while ineffective assistance of appellate counsel may not violate the Constitution, one could claim ineffective assistance as a good cause under Wainwright.
This court need not resolve this dispute. Buelow and Madyun agree that Peterson cannot claim a constitutional violation from ineffective assistance of counsel on a discretionary appeal, and so Peterson's second amended claim fails. As for his first amended claim, even if this court adopted the more liberal approach to ineffective assistance recommended by Madyun, the court still would have to deny Peterson's petition for the writ. This is because the State did not violate Peterson's Sixth and Fourteenth Amendment rights to a trial by an impartial jury.
The several States are under the same obligation as the federal government to provide criminal defendants with impartial juries at trial. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1967); Davis v. Warden, Joliet Corr. Inst. at Stateville, 867 F.2d 1003, 1006 (7th Cir.1989). "When a question is raised before the jury retires about whether a juror can fulfill his duties with an open mind, the ... court must determine that the juror is competent to proceed before continuing with the trial." United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir.1984). See also United States v. Taylor, 554 F.2d 200, 202 (5th Cir.1977) ("The right to an impartial jury, free of fear," overcomes considerations such as costs of mistrial). Nevertheless, the Sixth Amendment does not instruct trial judges on how to insure impartiality among juries. Developing directions to prevent bias could be impossible. Bias appears in many ways, and seldom gives advance warning. There are also many ways of responding to an allegation of bias. Sometimes investigation will reveal that it does not exist. Other times, an instruction from the court can dispel it. On still other occasions, the court can dismiss the biased juror, or take the ultimate step of declaring a mistrial. Recognizing how difficult it is to treat bias or suspected bias, the courts have interpreted the Sixth Amendment as giving wide discretion to the trial judge to respond to allegations of bias. See United States v. Hendrix, 549 F.2d 1225, 1227-29 (9th Cir.1977); United States v. Chiantese, 582 F.2d 974, 978 (5th Cir.1978); Thompson, 744 F.2d at 1068; United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985); United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir. 1986).
The first decision a trial court must make in responding to an allegation of bias is whether to inquire into it, and if so, when. There are only a few instances when a trial court must immediately investigate allegations of juror bias. See Chiantese, 582 F.2d at 979 (must investigate allegations of improper influence from outside sources or discussions about the case among jurors prior to deliberations); United States v. Doe, 513 F.2d 709, 711 (1st Cir.1975) (must investigate private communications between jurors and others); Shackelford, 777 F.2d at 1145 (same); Bradshaw, 787 F.2d at 1390 (must investigate when court learns of actual bias). Outside of these instances, an investigation is prudent, but the Constitution does not demand it. For example, if the trial court has reason to believe that the person making the allegation is untrustworthy, or that the bias is not serious, it may postpone investigating the allegation until later, or conduct only a limited inquiry. See Hendrix, 549 F.2d at 1227-29 (allegations from relatives of defendant about juror's general attitudes towards drug merchants; Sixth Amendment allowed trial court to postpone inquiry until after verdict and to inquire only into source of allegations); United States v. Kelly, 749 F.2d 1541, 1551-52 (11th Cir.1985) (Sixth Amendment allows trial court not to question jury about allegations of bias made by excused juror whom trial court found to be incredible).
*272 The influence upon the juror in this case did not come from the outside, nor was it a product of impermissible conversations among jurors. Further, there is no evidence that the juror was actually biased against Peterson. The record reveals only a juror who was concerned about note-taking by lawyers. The courtroom deputy did not report how the juror's concerns influenced his view of Peterson's guilt or innocence. If the juror feared Peterson, it is plausible that he actually could have been biased in Peterson's favor, thinking that an acquittal would save him from retaliation.
Because there is no indication that forces outside of the courtroom were affecting Peterson's fearful juror, nor any evidence that the juror was actually biased, this court cannot say that the trial judge abused his discretion in declining to question the juror. By this the court does not imply that it approves of the trial judge's handling of this matter. Investigation probably would not have taken much time. Further, once his inquiry was complete, the judge could have made a factual determination about the extent of the juror's bias. Had the trial judge found that the juror was not biased, all of the courts which have reviewed this case  including this court  essentially could have stopped their work right there. A reviewing court usually will accept a trial judge's factual determination before it defers to a judge's exercise of discretion.[3]
Nevertheless, the court cannot say that the trial court judge abused his discretion in failing to investigate the allegations of juror bias in this matter. The court also cannot hold that the trial judge abused his discretion in coping with the allegations of bias. Indeed, the only specific request Peterson's counsel made of the court was to reassure the jury that counsel had a right to take notes. The trial judge complied with this request at the earliest opportunity. The courtroom deputy did not report bias, and Peterson's counsel never gave bias as his ground for moving for a mistrial. The trial court acted within its discretion, consistent with the Sixth Amendment's guarantee of an impartial jury.
The court denies Earl Peterson's petition for a writ of habeas corpus.
NOTES
[1]  Supplemental Record B is that portion of the record which the State filed with the court on August 15, 1989. This part of the record was missing when the State filed what it thought was the complete record when answering Peterson's petition in December 1987.
[2]  Like Supplemental Record B, Supplemental Record A is a portion of the record which was missing when the State filed its answer. The State filed Supplemental Record A on March 27, 1989.
[3]  The State asserts that by allowing the trial to proceed, the trial judge implicitly found that the juror in question was not biased, and that this court must presume that finding was correct. See 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 1036-37, 104 S.Ct. 2885, 2891-92, 81 L.Ed.2d 847 (1984). The court has reviewed the record and finds nothing which suggests that the trial judge made such a finding. Even if he had made an explicit finding on the question, this court would be compelled to ignore it, as the judge would have made such a determination without questioning anyone, let alone the juror. See Ray v. Duckworth, 881 F.2d 512, 515-16 (7th Cir.1989) (court need not accept findings of state court when findings lack fair support in the record).


         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 19, 2000 Session

                  TRAVIS PLUMMER v. STATE OF TENNESSEE

               Appeal as of Right from the Criminal Court of Davidson County
                    No. 96-B-1056 & 96-C-1281      Seth Norman, Judge

                    No. M1999-01406-CCA-R3-PC - Filed October 27, 2000

The petitioner, Travis Plummer, was convicted by a jury in the Criminal Court of Davidson County
of one count of rape of a child, and subsequently also pled guilty to one count of rape. The trial court
sentenced the petitioner to twenty years incarceration in the Tennessee Department of Correction for
rape of a child and to twelve years incarceration for rape. The trial court further ordered that the
petitioner’s sentences be served consecutively. In this post conviction proceeding, the petitioner
raises the following issue(s) for review: whether the petitioner was denied his constitutional rights
at trial and at the plea proceeding when his counsel(s) failed to investigate and evaluate his
competency to stand trial and to plead guilty. Upon review of the record and the parties’ briefs, we
affirm the judgment of the post-conviction court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, and
THOMAS T. WOODALL , JJ., joined.

David Byrne, Nashville, Tennessee, for the appellant, Travis Plummer.

Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., for the appellee, State
of Tennessee.

                                              OPINION

                                      I. Factual Background
                On February 12, 1997, the petitioner, represented by Ms. Wendy Tucker and Ms.
Collins Weaver Hooper (hereinafter “trial counsel”), was found guilty by a jury in the Criminal Court
of Davidson County of one count of rape of a child. Subsequently, the petitioner requested that the
trial court appoint him new counsel, alleging the ineffective assistance of his trial counsel. The trial
court complied and appointed Mr. Larry Hoover (hereinafter “plea counsel”) to serve as petitioner’s
counsel. On July 17, 1997, the petitioner pled guilty to one count of rape in the Criminal Court of
Davidson County. The plea bargain provided that the appellant would receive a sentence of twenty
years incarceration in the Tennessee Department of Correction for rape of a child and twelve years
incarceration for rape, with the sentences to be served consecutively.

               The petitioner subsequently filed a petition for post-conviction relief alleging that he
had received ineffective assistance of counsel at both his trial and at his plea hearing. The post-
conviction court dismissed the petition. The petitioner appeals the post-conviction court’s denial of
his petition contending that he was denied his constitutional rights at trial and at the guilty plea
proceeding when his counsel(s) failed to investigate and evaluate his competency to stand trial and
his competency to plead guilty.

                                               II. Analysis
                At a post-conviction hearing, the petitioner bears the burden of proving all factual
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)(1997). Evidence
is clear and convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). Moreover, unless the evidence preponderates otherwise, this court is bound by the factual
findings of the post-conviction court. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The post-
conviction court must resolve all questions concerning witness credibility and the weight and value
to be accorded to their testimony. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
Furthermore, the trial court’s findings at an oral hearing, after observing witnesses testify and
considering conflicting testimony, will be given the weight of a jury verdict. Bratton v. State, 477
S.W.2d 754, 756 (Tenn. Crim. App. 1971). Accordingly, this court will not reweigh or reevaluate
the evidence or substitute its inferences for those of the post-conviction court. Williams v. State, No.
03C01-9801-CC-00013, 1999 WL 58608, at *2 (Tenn. Crim. App. at Knoxville, February 9, 1999).

                                                A. Trial
                This court reviews mixed questions of law and fact, such as claims of ineffective
assistance of counsel, de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). In order to prove
a claim of ineffective assistance of trial counsel, the petitioner must demonstrate that counsel's
performance was deficient and that the deficiency prejudiced the petitioner by creating a reasonable
probability that the result of the trial is unreliable or the proceedings were fundamentally unfair.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). In determining whether
counsel’s performance was deficient, this court must decide whether counsel’s performance was
within the range of competence required of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975).

               Compelling a mentally incompetent petitioner to stand trial violates his right to due
process of law. Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975). To this end, the
United States Supreme Court set forth the following test to apply in determining a petitioner’s
competency to stand trial:
       whether he has sufficient present ability to consult with his lawyer with a reasonable
       degree of rational understanding and whether he has a rational as well as factual
       understanding of the proceedings against him.

                                                  -2-
Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789 (1960). Accordingly, the petitioner
must be able to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense. Drope, 420 U.S. at 171, 95 S. Ct. at 903.
Furthermore, Tennessee courts have adopted this standard. See State v. Black, 815 S.W.2d 166,
173-174 (Tenn. 1991).

               However, not every person affected by a mental illness is thereby rendered
incompetent to stand trial. Wilcoxson v. State, 22 S.W.3d 289, 305 (Tenn. Crim. App. 1999), perm.
app. denied (Tenn. 2000). Accordingly, “evidence of a [petitioner’s] past psychiatric problems does
not necessarily require counsel to ask for a competency hearing if the petitioner’s behavior does not
reflect incompetence at the time of trial or while his attorney is preparing for trial.” Id. at 310.

               The American Bar Association’s Standards for Criminal Justice provide that when
defense counsel has a good faith doubt in petitioner’s competence to stand trial, counsel should move
for a psychological evaluation of the petitioner. ABA Standards for Criminal Justice § 7-
4.2(c)(1986). Accordingly, this court has found that, in deciding whether counsel’s performance was
deficient, we must determine if counsel had reasonable cause to raise the issue of the petitioner’s
competency before trial. See Wilcoxson, 22 S.W.3d at 306. To make this determination, we must
examine the information that was available to counsel prior to trial. Id.

                However, at the post-conviction hearing, the petitioner failed to introduce the mental
health records that, he argues, indicate that he would have been incompetent to stand trial.1 In any
event, trial counsel testified at the post-conviction hearing that, although the mental health records
indicated that the petitioner had problems in the past, there was nothing in his record to indicate that
he was incompetent. Moreover, trial counsel asserted that the petitioner was slow to understand, but
he did understand the proceedings after they were repeatedly explained to him. Additionally, trial
counsel stated that the petitioner assisted in his defense as much as he could. We do not find
sufficient evidence to establish that trial counsel was deficient in failing to pursue a competency
hearing prior to trial.

                 However, even if counsel had been deficient in failing to request a competency
hearing before trial, the petitioner would need to also establish that he had been prejudiced by the
deficiency. This the petitioner has failed to do. In order to establish prejudice, “the burden must
remain upon the petitioner to establish a reasonable probability that he was, in fact, incompetent at
the time of his trial” See Wilcoxson, 22 S.W.3d at 313. But see Smith v. State, No. 02C01-9801-
CR-00018, 1998 WL 899362, at *22 (Tenn. Crim. App. at Jackson, December 28, 1998), perm. app.
granted (Tenn. 1999)(finding prejudice even though there was no evidence that the petitioner was
incompetent to stand trial). The petitioner failed to introduce at the post-conviction hearing any
medical records or testimony by psychiatric experts that he was not competent to stand trial or to

         1
            Moreover, the petitioner also failed to include the trial transcript in the record for our review. T herefore, it
is difficult for us to evaluate trial counsel’s performance.

                                                            -3-
plead guilty. We cannot say that the evidence preponderates against the post-conviction court’s
finding that the petitioner received effective assistance of trial counsel.

                                            B. Guilty Plea
                To prove ineffective assistance of plea counsel, the petitioner must establish that, but
for counsel's errors, the petitioner would not have pled guilty and would have insisted upon going
to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); see Tate v. State, No.
02C01-9810-CR-00304, 1999 WL 608703, at *3 (Tenn. Crim. App. at Jackson, August 12,1999).
The petitioner claims that he would not have pled guilty if he had been found incompetent after a
competency hearing. Furthermore, the petitioner seems to argue that his guilty plea was not
“knowing” and “voluntary.” Additionally, the petitioner alleged that he did not understand, and plea
counsel did not explain, that his sentences would run consecutively for an effective sentence of
thirty-two years.

                 This court has found that, “the level of competence required to enter a guilty plea is
the same as is required to stand trial.” McMahan v. State, No.03C01-9212-CR-00422, 1993 WL
455290, at *2, (Tenn. Crim. App. at Knoxville, November 5, 1993). Therefore, we must determine
if the petitioner was able to assist plea counsel in preparing his defense, to consult with counsel, and
to understand the nature and object of the proceedings against him. State v. Wilson, No. 03C01-
9609-CC-00352, 1998 WL 564021, at *9-10, (Tenn. Crim. App. at Knoxville, September 1, 1998),
perm. app. granted (Tenn. 1999).

                Petitioner’s plea counsel testified at the post-conviction hearing that he discussed the
facts and possible defenses with the petitioner. Moreover, plea counsel stated that the petitioner
suggested a possible consent defense to the rape case. Additionally, plea counsel stated that he
explained the plea agreement to the petitioner, a fact the petitioner admitted at the post-conviction
hearing. Furthermore, plea counsel acknowledged that the petitioner had his difficulties, but
nevertheless believed he understood the plea. Accordingly, plea counsel indicated that, because of
the strength of the State’s case against the petitioner and the fact that the petitioner was facing three
counts of aggravated rape, one count of attempt to commit aggravated rape, and one count of
aggravated assault if he had proceeded to trial, the plea bargain had been to the petitioner’s benefit.
See Warren v. State, No. M1999-1319-CCA-R3-PC, 2000 WL 1133558, at *3 (Tenn. Crim. App.
at Nashville, August 10, 2000).

                We do not find that petitioner’s plea counsel’s performance was deficient. However,
even if plea counsel had been deficient in failing to request a competency hearing prior to the guilty
plea, we once again note that the petitioner has not established prejudice because he presented no
evidence at the post-conviction hearing that he was incompetent at the time of his guilty plea. See
Wilcoxson, 22 S.W.3d at 313. We agree with the trial court that the petitioner failed to prove the
ineffective assistance of plea counsel.

                Furthermore, a guilty plea must be made voluntarily, understandingly, and knowingly
in order to withstand constitutional scrutiny. Hicks, 983 S.W.2d at 246(citing Boykin v. Alabama,

                                                  -4-
395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969)); see also State v. Mackey, 553 S.W.2d 337, 341
(Tenn. 1977). This court must examine the following circumstantial factors in determining the
“knowing” and “voluntary” nature of a guilty plea:
       the relative intelligence of the defendant; the degree of his familiarity with criminal
       proceedings; whether he was represented by competent counsel and had the
       opportunity to confer with counsel about the options available to him; the extent of
       advice from counsel and the court concerning the charges against him; and the
       reasons for his decision to plead guilty, including a desire to avoid a greater penalty
       that might result from a jury trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn.1993). Furthermore, the petitioner should
understand the direct consequences of his guilty plea, i.e., the penalty to be imposed. Id.

                Petitioner’s plea counsel testified that he met with the petitioner several times and
repeatedly explained consecutive sentencing to him. Plea counsel also averred that the petitioner
voluntarily chose to plead guilty to rape and receive a twelve year sentence, in return for the
dismissal of the additional charges against him. At the plea hearing, the trial court informed the
petitioner of the rights he would relinquish by pleading guilty. Moreover, the trial court asked the
petitioner if he understood the sentence he would receive by pleading guilty and the petitioner
responded that he understood. Additionally, the petitioner maintained at the guilty plea hearing that
he had no mental difficulties that he was aware of and that he was satisfied with his plea counsel.
Furthermore, the petitioner asserted that he understood the proceedings and nevertheless wanted to
plead guilty. As a result, we find that the petitioner’s plea was “knowing” and “voluntary.”

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the post-conviction court.

                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE

                                                -5-


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CLOVUS M. SYKES,                                No. 16-73708

                Petitioner-Appellant,           Tax Ct. No. 24394-15

 v.
                                                MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                            Submitted April 19, 2018**

Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
             Judges.

      Clovus M. Sykes appeals pro se from the Tax Court’s decision upholding the

Commissioner of Internal Revenue’s determination of income tax deficiencies for

tax year 2012, and imposing a penalty under 26 U.S.C. § 6673. We have

jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo questions of law,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
including whether the Tax Court has subject matter jurisdiction, and for clear error

its factual findings. Meruelo v. Comm’r, 691 F.3d 1108, 1114 (9th Cir. 2012). We

review the imposition of penalties under § 6673 for abuse of discretion. Wolf v.

Comm’r, 4 F.3d 709, 716 (9th Cir. 1993). We affirm.

      The Tax Court had jurisdiction when the Commissioner mailed valid notices

of deficiency. See 26 U.S.C. § 6212; see also Scar v. Comm’r, 814 F.2d 1363,

1366–70 (9th Cir. 1987) (discussing requirements for valid notice of deficiency

such that jurisdiction is conferred upon the Tax Court). We reject as without merit

Sykes’s contention that a letter he received from the Social Security

Administration affected the validity of the notice of deficiency.

      The Tax Court properly upheld the Commissioner’s deficiency

determination for 2012 because the Commissioner presented “some substantive

evidence” that Sykes failed to report income and Sykes did not submit any relevant

evidence “showing that the deficiency was arbitrary or erroneous.” Hardy v.

Comm’r, 181 F.3d 1002, 1004–05 (9th Cir. 1999).

      The Tax Court did not abuse its discretion by imposing against Sykes a

penalty under § 6673 for maintaining frivolous positions. See 26 U.S.C.

§ 7443A(b) (authorizing chief judge to assign proceedings to a special trial judge);

id. § 6673(a)(1) (authorizing a penalty not in excess of $25,000 where the

taxpayer’s position is frivolous or groundless).

                                          2                                  16-73708
      Sykes’s motion to consolidate Appeal Nos. 13-74293, 14-70446, 14-73956,

and 16-73708 (Docket Entry No. 16) is denied as moot.

      AFFIRMED.

                                       3                               16-73708