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Kyzar v. Ryan

United States Court of Appeals, Ninth Circuit

March 12, 2015

DINO WAYNE KYZAR, Petitioner-Appellant,
v.
CHARLES L. RYAN; STATE OF ARIZONA ATTORNEY GENERAL, Respondents-Appellees

Argued and Submitted, San Francisco, California November 19, 2014.

Page 941

Appeal from the United States District Court for the District of Arizona. D.C. No. CV-06-02015-SRB. Susan R. Bolton, District Judge, Presiding.

SUMMARY[**]

Habeas Corpus

The panel affirmed the district court's denial of Arizona state prisoner Dino Wayne Kyzar's habeas corpus petition challenging his conviction for conspiring with Leroy Cropper to commit a deadly or dangerous assault by a prisoner, in a case in which Cropper stabbed a correctional officer to death.

The panel held that Kyzar's pro se filings before the Arizona trial court and Arizona Court of Appeals fairly presented his sufficiency of the evidence claim, which was sufficient to exhaust his state remedies and avoid a procedural default.

The panel held, after reviewing the full trial record, that the Arizona trial court did not apply Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in an objectively unreasonable fashion when it rejected Kyzar's sufficiency of the evidence claim, where the State presented evidence that Kyzar knew Cropper intended to attack someone, agreed to help him obtain a knife, and took an overt act in furtherance of this conspiracy.

Tara K. Hoveland (argued), South Lake Tahoe, California, for Petitioner-Appellant.

David A. Simpson (argued), Deputy Attorney General; Thomas C. Horne, Attorney General; Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section; and David A. Sullivan, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, Arizona, for Respondents-Appellees.

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and Elaine E. Bucklo, Senior District Judge.[*]

OPINION

Page 942

BUCKLO, Senior District Judge:

On March 7, 1997, Leroy Cropper, an Arizona prisoner, stabbed a correctional officer to death at the Perryville state prison. A jury convicted Petitioner Dino Kyzar of conspiring with Cropper and others to commit a deadly or dangerous assault by a prisoner in violation of Ariz. Rev. Stat. Ann. § 13-1206.

Kyzar sought federal habeas relief on multiple grounds. In Kyzar's first appeal, we vacated and remanded for the limited purpose of having the district court consider in the first instance whether the evidence adduced at trial was constitutionally insufficient to support his conviction. See

Page 943

Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that petitioner is entitled to habeas relief if, after viewing the evidence in the light most favorable to the prosecution, " no rational [jury] could have found proof of guilt beyond a reasonable doubt" ).

On remand, the district court rejected Kyzar's sufficiency of the evidence claim. We affirm.

I. Background

At this stage, we must view the record in the light most favorable to the prosecution and presume that the jury resolved any evidentiary conflicts in its favor. Id. at 326 (" [A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." ). Moreover, we " cannot second-guess the jury's credibility assessments; rather, 'under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.'" U.S. v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010) (en banc) (quoting Schlup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)); see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (" A jury's credibility determinations are...entitled to near-total deference under Jackson." ).

A. Facts

At the time of the murder, Cropper lived in Building 26 of the San Juan unit at Perryville prison. The building was divided into four pods--A, B, C, and D--with each pod having an upper and lower tier. Cropper lived in Cell No. 258 on the D pod's upper tier. Cropper's cellmate was Lloyd Elkins. Cropper and Elkins had been cellmates for about one month in Building 24 before they were transferred to Building 26 on March 3, 1997, four days before the murder.

While Cropper was living in Building 24--but before he was cellmates with Elkins--Kyzar gave him a nine to twelve inch steel knife with electrical tape wrapped around the base to form a handle. A few weeks later, after Cropper and Elkins became cellmates, Elkins saw Cropper in possession of a second knife with a serrated blade. According to Elkins, Cropper generally knew where to find knives buried around the prison yard. With respect to the prevalence of knives at Perryville, Cropper testified at trial that " [e]verbody on the yard ha[d] some type of weapon."

On the day of the murder, Deborah Landsperger, a correctional officer assigned to Building 26, discovered that mops and brooms were missing from the equipment room. Around 10:30 A.M., Landsperger and Brent Lumley, another correctional officer, decided to conduct a cell-to-cell search for the missing items. They started searching in the D pod's upper tier of cells.

Cropper and Elkins lived in the second cell searched. After Landsperger noticed tattoo patterns on top of a cabinet, she ordered Cropper and Elkins to exit the cell. Lumley did a pat down search of the inmates. The officers ordered Cropper and Elkins to wait outside the cell until the search was over.

Landsperger and Lumley confiscated several items of contraband during their search of Cell No. 258, including more tattoo paraphernalia, a serrated knife blade without a handle, and either a " cement nail," or a four to six inch " railroad spike." At some point during the ...


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