Thomas Paul West applies to this court for authorization to file a second or successive petition for a writ of habeas corpus in the District of Arizona. See 28 U.S.C. § 2244(b)(3). We deny his application.
West was convicted of first-degree felony murder, second degree burglary, and theft in March 1988. In our opinion denying his first federal habeas petition, we set out the facts surrounding the murder and trial:
West v. Ryan, 608 F.3d 477, 480 (9th Cir. 2010). We also set out the facts surrounding West's sentencing. Because West challenges his sentence, rather than his conviction, those facts are important here as well:
Id. at 481-82.
West's conviction was affirmed on direct review by the Arizona Supreme Court on September 30, 1993. State v. West, 176 Ariz. 432, 862 P.2d 192 (1993). The Supreme Court denied certiorari on April 25, 1994. West v. Arizona, 511 U.S. 1063, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994). On March 26, 1996, West filed his first petition for post-conviction relief in state court, raising numerous claims including ineffective assistance of counsel for not presenting sufficient mitigation evidence at sentencing. The superior court denied the petition without a hearing, and the Arizona Supreme Court summarily denied the petition.
On May 6, 1998, West filed a timely petition for a writ of habeas corpus in the District of Arizona. On November 9, 2007, the district court denied West's third amended habeas petition. West v. Schriro, No 98-218, 2007 WL 4240859. The court denied West's motion to reconsider on December 11, 2007. We denied his appeal in a published decision on June 10, 2010. West v. Ryan, 608 F.3d 477. The Supreme Court denied certiorari on February 22, 2011. West v. Ryan, ___ U.S. ____, 131 S.Ct. 1473, 179 L.Ed.2d 314 (2011).
Following the habeas appeals, Arizona moved for a warrant of execution, which was issued by the Arizona Supreme Court on May 24, 2011. The warrant set the execution for July 19, 2011. In opposing the warrant of execution, West filed a successive petition for post-conviction relief in the Arizona Superior Court, which that court denied on June 29, 2011. The Arizona Supreme Court summarily denied review on July 13, 2011, and West filed a petition for a writ of certiorari on July 15,
The first step in our consideration of West's application requires us to "determine whether a `claim presented in a second or successive habeas corpus application' was also `presented in a prior application.'" Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). If it has, "the claim must be dismissed." Id. The Supreme Court has clarified that the term "claim" means "an asserted federal basis for relief from a state court's judgment of conviction." Id. West alleges that his claims have not been presented in a previous petition, but, at least as to his first claim, we are not convinced.
In his proposed second or successive petition, West makes two claims: (1) that sentencing counsel rendered ineffective assistance because they failed to adequately investigate his background and introduce evidence that would have invalidated all three statutory aggravating factors found by the sentencing court; and (2) that his recent diagnoses of post-traumatic stress disorder ("PTSD") rendered him ineligible for the death penalty because it invalidates all three aggravating factors. While the PTSD is a new wrinkle, we have seen at least the first of these claims before. Specifically, in claim A8 of his previous habeas petition, West contended that his counsel were ineffective at sentencing by failing to investigate and present mitigation evidence of West's impaired mental health, head injuries, childhood abuse, immaturity, substance abuse, and failure to complete drug rehabilitation. While the current proposed petition focuses on the effect the evidence of his childhood abuse would have on the aggravating factors rather than the mitigating effect, this is two sides of the same coin. West's complaint is that counsel should have discovered the truth about his childhood and the effect it had on his decision to murder Mr. Bortle.
The current claim adds nothing new except the contention that the investigation would have revealed his PTSD. However, even that is not truly new, because West argued the same thing to this court in his appeal of the prior habeas denial. In fact, West argued his PTSD warranted relief in seven different places in his opening brief of the first habeas appeal and three places in his reply brief. Because West's first claim regarding ineffective assistance of sentencing counsel was raised in a prior habeas petition, it must be dismissed. 28 U.S.C. § 2244(b)(1).
Even if West's claims are distinct enough from those raised in his first petition so that we may consider them, we must dismiss his application unless he meets Antiterrorism and Effective Death Penalty Act's (AEDPA) stringent standards. 28 U.S.C. § 2244(b)(2)(B). "Permitting a state prisoner to file a second or successive federal habeas corpus petition is not the general rule, it is the exception, and an exception that may be invoked only when the demanding standard set by Congress is met." Bible v. Schriro, 651 F.3d 1060, 1063 (9th Cir.2011). Because West is not claiming that a new rule of constitutional law supports his claim, this demanding standard requires that we dismiss his application unless
28 U.S.C. § 2244(b)(2)(B). While West must satisfy both requirements to prevail in his application, he cannot satisfy either.
West must first demonstrate that the evidence he now presents is newly-discovered, i.e., it "could not have been discovered previously through the exercise of due diligence." Id. West offers two pieces of evidence he deems newly-discovered. First, West asserts that he suffered physical and emotional abuse from his family and he was sexually molested by three different men during his childhood. This information was not brought out at trial or in mitigation during sentencing. Second, West was diagnosed after the trial and sentencing as suffering from PTSD. His medical experts opine that West was suffering from PTSD at the time he murdered Bortle.
West cannot demonstrate that the evidence of physical and emotional abuse by his family or sexual molestation is newly-discovered because it could have been discovered before trial through the exercise of due diligence. In fact, West knew it all along, and it is undisputed that his counsel knew of at least some of the allegations of sexual abuse in 1996. Under the facts of this case, this was not newly-discovered information which could not have been discovered through the exercise of due diligence. See King v. Trujillo, 638 F.3d 726, 730 (9th Cir.2011).
West now contends that his family life during his childhood was much worse than he had previously admitted. Prior to trial, West discussed his family life with Dr. Allender, a court-appointed psychologist, in 1987.
In 2010, however, West reported a much different relationship with his parents in interviews with Dr. Smith, a clinical psychologist referred by the Arizona Federal Public Defender:
The only explanation for the stark difference in stories is in Dr. Allender's May 7, 2011 letter:
There is no question that, to the extent West contends his abusive home life is a mitigating factor, West knew about his home life and the alleged family abuse at trial and at sentencing. There is no legitimate reason for his failure to disclose it before this late date.
Dr. Allender's May 7, 2011 letter also describes West's failure to report sexual abuse:
Regardless, West was at all times aware of the three instances of sexual abuse he now raises. Notably, he does not argue that his counsel was ineffective for failing to inquire about sexual abuse. Rather, he complains only that counsel was not successful in discovering what West already knew and not getting the court to pay for yet another mental health expert.
Even if counsel had been successful in securing funding for another mental health expert, it is pure speculation that the information about his abuse would have come out. The mental health defense efforts at the time were not focused on West's background, but rather on whether he had an organic brain injury. Accordingly, it is by no means clear that the mental health expert, if appointed, would have addressed the psychological consequences of West's sexual abuse. West acknowledges that his post-conviction relief counsel was aware of one of the childhood sexual abuse allegations as early as 1996. While West identifies several requests for funding for defense investigations that were denied in 1996 and 1997, the evidence shows that counsel diligently pursued mitigation evidence based on organic brain injury and substance abuse, but sexual abuse was at
To the extent West contends his first post-conviction relief counsel was ineffective for not discovering the sexual abuse in 1997 and for not obtaining funding to investigate, the facts do not support his claim. West's first post-conviction relief counsel, Carla Ryan, explained in her motion for a funded mental health expert, that West "apparently was sexually abused, on numerous occasions, by a teacher. Therefore, a mental health expert is also needed to explain how the family environment and the sexual abuse affected Petitioner's emotional development." The court denied this request, but did so without prejudice to bringing the motion again with additional evidence. Thus, West had ample incentive at the time to more fully disclose his background and history of sexual abuse. He might have satisfied the diligence requirement if he had done so then, but he chose not to.
West's primary argument regarding diligence is that we have already found he was diligent, citing West v. Ryan, 608 F.3d at 484-85. West misreads our prior opinion. We held that West's prior counsel had been diligent in seeking an evidentiary hearing regarding her need for funding for a mental health expert and investigator. We did not hold that West had been diligent in disclosing information about his childhood; he clearly was not. If we were to rule that West had been diligent in pursuing and developing evidence of sexual abuse and abuse by family members by failing to disclose the information, even to his counsel, for twenty years, we would be creating a strong incentive for capital defendants to withhold the strongest mitigation evidence until the eve of execution. We are not prepared to create that incentive.
The state court concluded that although West's diagnosis of PTSD had not been made at the time of trial, West was not diligent in obtaining the diagnosis. We agree. Dr. Allender and Dr. Smith based their diagnoses on conversations with West regarding information known by him at the time of trial. There was no new information that led to the diagnoses; the only new turn of events is that West has now chosen to disclose that he is the victim of sexual abuse, which apparently resulted in his PTSD. West argues that his allegations of sexual abuse were only corroborated within the past few weeks. This proves too much, because Dr. Allender and Dr. Smith both diagnosed PTSD before the allegations of sexual abuse were corroborated.
The evidence of family and sexual abuse is not newly discovered. While West's PTSD diagnosis was not made until well after the trial and sentencing, West at all times possessed the information that forms the basis of the diagnosis. Had West been forthcoming with the events of his childhood in 1987, there is no reason to think that the diagnosis would not have been made. West cannot withhold the information he claims is critical mitigating evidence and then complain when it is not considered. West chose not to reveal the information at trial and sentencing, and made at least a partial disclosure in his post-conviction proceedings in 1997. He cannot now claim that the information he chose to withhold for over 20 years is new.
Even if the evidence were accepted as newly-discovered, we must still deny West's application unless it "would be sufficient to establish by clear and convincing evidence that ... no reasonable factfinder would have found [him] guilty of the underlying offense." Bible, 651 F.3d at 1064 (quoting 28 U.S.C. § 2244(b)(2)(B)(ii)). Here, West challenges only his death sentence, and not his conviction. When a "capital defendant challenges his death sentence in particular, he must show by `clear and convincing evidence' that no reasonable juror would have found him eligible for the death penalty in light of the new evidence." Calderon v. Thompson, 523 U.S. 538, 559-60, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 348, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). Thus, West has the burden of showing, by clear and convincing evidence, that no reasonable sentencing judge aware of his family and sexual abuse and resulting PTSD would have sentenced him to death.
The state trial court found three aggravating circumstances in the penalty phase: (1) prior conviction of a violent crime in Illinois; (2) murder committed for pecuniary gain; and (3) murder committed in an especially cruel and heinous manner. West contends each of these findings is completely negated by the PTSD diagnosis and, had the sentencing court known of his PTSD, it would not have been able to sentence him to death.
West contends that had the Illinois judge in 1981 known West suffered from PTSD, he would not have convicted him, and therefore the prior Illinois conviction should not have been considered by the Arizona court. The Supreme Court has held "that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid." Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). The Court noted a possible exception to this rule in a case where, "after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner." Id. at 405, 121 S.Ct. 1567 (emphasis added).
West has not presented "compelling evidence" of actual innocence. In support of this argument, he submitted a letter from the Illinois judge (unsworn, but declared to be "true to the best of [the judge's] information
This evidence is insufficient to meet the "compelling evidence" standard for at least two reasons. First, there is no evidence establishing that West suffered from PTSD at the time of the 1981 shooting.
Most importantly, however, is the requirement that "the challenged prior conviction must have adversely affected the sentence that is the subject of the habeas petition." Coss, 532 U.S. at 406, 121 S.Ct. 1567. West cannot show that his prior manslaughter conviction had the requisite adverse affect on his current sentence. In affirming West's death sentence, the Arizona Supreme Court accepted "the trial judge's finding that the circumstances of defendant's previous manslaughter conviction were not mitigating," but nonetheless stated that "we believe this to be an appropriate death penalty case even if it be assumed that the Illinois voluntary manslaughter conviction was not properly proved." State v. West, 176 Ariz. 432, 862 P.2d 192, 211, 212 n. 4 (1993).
The mere showing that a murder occurred during the commission of a robbery is not sufficient to establish that the murder was committed with the expectation of pecuniary gain. Woratzeck v. Stewart, 97 F.3d 329, 334 (9th Cir.1996). "To establish the pecuniary gain aggravating circumstance, the state must prove that the expectation of pecuniary gain was a motive, cause, or impetus for the murder and not merely a result of the murder." State v. Prasertphong, 206 Ariz. 167, 76 P.3d 438, 440 (2003) (internal quotation and alteration omitted). West contends that the murder was committed due to an exaggerated startle response attributable to his PTSD, and was nothing more than a killing during a "robbery gone bad." The circumstances surrounding Bortle's murder do not support the argument.
West intended to steal Bortle's property. West had been to Bortle's house shortly before the murder and carefully examined the extensive amount of electronics equipment Bortle had for sale. Moreover, West ran out of cocaine on the day of the murder and did not have enough money to buy more. When Bortle interrupted him, West savagely beat Bortle, hogtied him stuck him in a closet, and left him to die. And then West continued to do what he came for — he stole Bortle's electronic equipment and then stole his car to carry it away. West's alleged PTSD may help explain why West was motivated to steal Bortle's property, but it does nothing to undermine the finding the murder was committed for pecuniary gain. West offers no other explanation for the savageness of the beating he inflicted upon Bortle or hogtying him
West contends that because he was suffering from PTSD, no reasonable factfinder could have found the manner in which he killed Bortle was especially cruel or heinous. While West offers conclusory statements that a PTSD diagnosis would defeat the factors used to establish heinousness, he does not actually explain how PTSD affects any of the factors that the court weighed to establish that the manner in which he murdered Bortle was especially cruel and heinous. Rather, he primarily argues that the evidence was insufficient to establish the factors. West submits that an exaggerated startle response stemming from his PTSD explains his reaction. However, while a startle response might explain an initial, violent reaction, it does nothing to explain why West took further affirmative actions to hogtie Bortle, to move him into a closet where he left him to die, or why, after that savage outburst, he went on to steal Bortle's possessions and his car. Moreover, it does nothing to undercut the evidence of his behavior after the murder. Lisa Murray testified that she overheard West tell Richard Wojahn that West had "beat the fuck out of this old man and thrown him in a closet" in Tucson. When Lisa confronted him, West told her "not to worry about it" and that she "would have to live with it." He also bragged to others about getting cuts and bruises on his hand from beating up "the old man he ripped off." State v. West, 862 P.2d at 208. Taken together with the evidence of the cold-blooded and methodical nature of the crime itself, this severely undercuts West's argument that this aggravating factor would have been negated by evidence that he committed the crime in the midst of a startle response.
West's argument that he is actually innocent of the death penalty under Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), fails because his cruel, calculated conduct in hogtying Bortle and abandoning him to die following the beating shows "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death [and] represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." Id.; see also Landrigan v. Trujillo, 623 F.3d 1253, 1257-58 (9th Cir.2010). West's reliance on the trial testimony of the prosecution pathologist suggesting that Bortle may have been rendered unconscious by the first blow does not advance the Tison claim. Even if the PTSD startle response theory were accepted, and even if Bortle had been rendered unconscious right away, it would not overcome West's subsequent behavior of binding the bloody victim, throwing him in a closet, and leaving him to die while later boasting about what happened.
West has not shown that a PTSD diagnosis would have changed the outcome of any of the three aggravating factors found by the sentencing court. At best, it would have supported the mitigating factor the court found — his family life. However, he has not satisfied his burden of showing, by clear and convincing evidence, that strengthening this one mitigating factor would have mandated a different outcome.
West has not satisfied his burden of proving, by clear and convincing evidence, that the evidence he now proffers is newly-discovered or that no reasonable factfinder would have found him eligible for the
