Frank R. Zapata, Senior United States District Judge.
This matter is before the Court on limited remand from the Ninth Circuit Court of Appeals. (See Doc. 195.)
This Court ordered supplemental briefing to address whether cause exists under Martinez to excuse the procedural default of Claims A-24 and A-27, and whether Petitioner is entitled to habeas relief under 28 U.S.C. § 2254 on the claims. (Doc. 197.) The Court also ordered Petitioner to include any requests for evidentiary development with the supplemental briefing. (Id.)
Petitioner filed a supplemental brief addressing the applicability of Martinez to Claims A-24 and A-27, arguing that post-conviction counsel acted ineffectively in litigating claims against sentencing counsel in state court, and requesting evidentiary development and an evidentiary hearing on the procedural default of these claims. (Doc. 200.) Respondents filed a response, and Petitioner filed a reply. (Docs. 212, 217.)
Claims A-24 and A-27 as alleged in the supplemental briefing, however, appear to be factually distinct from the claims Petitioner alleged in his second amended petition. In his second amended petition, Petitioner asserted ineffectiveness of counsel based on a general allegation of a failure to conduct an investigation into Petitioner's background, and failing to present that information to his mental health expert. (Doc. 114 at 24-25.) Petitioner is now asserting very specific allegations of severe family dysfunction and neuropsychological impairments that have never before been alleged in this Court. (Compare
On July 25, 1986, Sara Kaplan, a frail 83-year old woman who lived alone, was beaten and strangled in her home. Petitioner and a co-defendant, Michael Wayne Davis, were charged and tried separately on one count each of burglary, kidnaping, and first degree murder. Petitioner was represented at trial and sentencing by court-appointed counsel William Redondo and Patrick Hurd. A jury convicted Petitioner of all counts on December 14, 1987, and Pima County Superior Court Judge Gilbert Veliz sentenced him to death for the murder and to concurrent terms for the burglary and kidnapping.
The Arizona Supreme Court stayed the appeal pending resolution of the Rule 32 proceedings. (APP-DR at item No. 13.) The trial court granted Petitioner's motion for an evidentiary hearing on several issues raised in his PCR, including claims of ineffective assistance of counsel ("IAC") at trial and at sentencing, and granted Petitioner's request for an investigator. (ROA II at 495-97.) Following an evidentiary hearing, oral argument, and additional briefing on the PCR petition, the trial court denied relief. (ROA II at 221-24.) Petitioner filed a petition for review of the Rule 32 proceedings. (ROA II at 257.) The Arizona Supreme Court consolidated the petition with the reinstated appeal and treated the consolidated matters as a single appeal. (APP-DR at item No. 41.) As a result, the court struck the substantive portion of Petitioner's petition for review and directed Petitioner to include Rule 32 arguments in the appellate opening brief. (APP-DR at item No. 37.) On December 17, 1992, the Arizona Supreme Court affirmed Petitioner's convictions and sentences and denied his PCR-related claims. See State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993).
Petitioner filed a preliminary Petition for Writ of Habeas Corpus in this Court on February 5, 1996, and an amended petition on December 19, 1997. (Docs. 1, 62.) A second amended petition was filed on July 30, 1999. (Doc. 113.) The Court initially dismissed several claims as procedurally barred, including the claims at issue in this order: Claims A-24 and A-27. (Doc. 121.) The Court subsequently denied the remainder of Petitioner's claims in two orders addressing the conviction- and sentencing-related claims separately. (Docs. 169, 177.)
While Petitioner's appeal from this Court's denial of habeas relief was pending, the Supreme Court decided Martinez v. Ryan, holding that where IAC claims must be raised in an initial PCR proceeding, failure of counsel in that proceeding to raise a substantial trial IAC claim may provide cause to excuse the procedural default of that claim. 132 S.Ct. at 1320. Subsequently, Petitioner moved the Ninth Circuit to stay his appeal and grant a limited remand in light of Martinez. The Ninth Circuit granted the motion and remanded for consideration of Claims A-24 and A-27 in light of intervening law, stating that the "remanded claims are for purposes of remand substantial." (Doc. 195) (citing Martinez, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272; Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013); Detrich v. Ryan, 740 F.3d 1237 (9th Cir.2013) (en banc); Dickens v. Ryan, 740 F.3d 1302 (9th Cir.2014) (en banc)).
In August 2015, the parties completed supplemental briefing in this Court.
Petitioner seeks reconsideration based on Martinez for two claims alleging counsel ineffectiveness for failing to investigate and prepare a social history of Petitioner for sentencing (Claim A-24), and failing to provide information concerning Petitioner's background to mental health experts (Claim A-27). The Court previously found these claims to be procedurally defaulted because Petitioner failed to present them in state court and no remedies remained available to exhaust the claims. (Doc. 121 at 18, 33.)
To excuse the default of Claims A-24 and A-27, Petitioner argues there is a reasonable probability that post-conviction relief would have been granted, and Petitioner would have received a life sentence, had PCR counsel adequately presented his IAC at sentencing claims by conducting an investigation into Petitioner's social history, presenting that history to a mental health expert, and providing the resulting mitigating evidence to the PCR court to establish prejudice as a result of trial counsel's failures at sentencing. (Doc. 200 at 20-21, n.4.)
Respondents assert that Petitioner's supplemental brief is beyond the scope of this remand, that Petitioner has not shown that PCR counsel was ineffective in failing to raise Claims A-24 and 27 in state court, and that Petitioner is not entitled to relief on the merits of the claims. After due consideration, the Court finds that Petitioner's claims and supplemental briefing do not fall outside the scope of remand, but that further briefing is necessary before the Court determines if these claims are properly before the Court, and, if so, whether Petitioner can establish cause to excuse the procedural default of the substantial claims.
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As a general matter, habeas review of a defaulted claim is barred unless a petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Ordinarily, "cause" to excuse a default exists if a petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 753, 111 S.Ct. 2546. In Coleman, the Court held that ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim. Id.
In Martinez, however, the Court established a "narrow exception" to the rule announced in Coleman. The Court explained:
132 S.Ct. at 1320; see also Trevino, 133 S.Ct. at 1918 (noting that Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of counsel claim if "the claim ... was a `substantial' claim [and] the `cause' consisted of there being `no counsel' or only `ineffective' counsel during the state collateral review proceeding" (quoting Martinez, 132 S.Ct. at 1320)).
Accordingly, under Martinez, a petitioner may establish cause for the procedural default of an ineffective assistance claim, "where the state (like Arizona) required the petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) `counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),' and (2) `the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'" Cook v. Ryan, 688 F.3d 598, 607 (9th Cir.2012) (quoting-Martinez, 132 S.Ct. at 1318); see Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir.2014) overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, at 818-19 (9th Cir.2015); Dickens, 740 F.3d at 1319-20; Detrich, 740 F.3d at 1245.
Respondents argue Martinez does not apply to excuse Petitioner's procedural default of these claims because, at the time of Petitioner's appeal, state law allowed Petitioner to raise his IAC claims on direct appeal. Petitioner responds that this argument misrepresents the actual procedure in place at the time of Petitioner's PCR proceeding and that Martinez does not hinge on whether Petitioner's IAC claims, brought first in a collateral proceeding, are later consolidated for review with the direct appeal. After the parties completed supplemental briefing, the Ninth Circuit issued its decision in Runningeagle v. Ryan, No. 07-99026, 825 F.3d 970, 2016 WL 3213095 (9th Cir. June 10, 2016), finding Martinez applicable to habeas petitioners who were required, by virtue of Arizona's procedural system in place during the relevant period, to assert their IAC
Petitioner's IAC claims relate to claims which this Court has previously resolved on the merits. Therefore, some of the factual background set forth herein repeats what has previously been set out in the Court's July and September 2005 orders addressing Petitioner's IAC claims during both the guilt- and penalty-phases of trial.
The following events, as described by the Arizona Supreme Court, led to Petitioner's prosecution and conviction:
Salazar, 173 Ariz. at 403-04, 844 P.2d at 570-71.
Prior to trial, Petitioner was evaluated by two psychiatrists and one psychologist. John LaWall, M.D., a neurologist-psychiatrist, examined Petitioner after the court granted Petitioner's request to evaluate his "mental condition at the time of the crime charged and his competence to stand trial," pursuant to Rule 11.2 of the Arizona Rules of Criminal Procedure ("Rule 11"). (ROA I at 48, 51.) Dr. LaWall interviewed Petitioner and reviewed records consisting of transcripts of statements from Petitioner, witnesses, and his co-defendant, and police reports. Dr. LaWall was unable to diagnose Petitioner with any mental illness, and concluded that there was no evidence to suggest he did not understand the nature, quality, and consequence of his actions at the time of the alleged offense. (Doc. 63, Ex. WW.)
Psychiatrist David Gurland, M.D., conducted a second Rule 11 evaluation of Petitioner. (Doc. 63, Ex. VV.) Dr. Gurland opined that Petitioner, who denied murdering the victim, was of at least average intelligence, with no evidence of bizarre or inappropriate behaviors. (Id.) Though he appeared to have been mildly to moderately intoxicated at the time of the offense, he "was certainly aware of the nature and quality of his acts and knew right from wrong at that time." (Id.)
In September 1987, defense counsel retained psychologist and biofeedback practitioner Robert Crago, Ph.D., to conduct psychological testing of Petitioner, develop a personality history, and determine the existence of any neuropsychological disorders. (ROA I at 100, 109-10.) Defense counsel requested information about Petitioner's "mental state, personality organization and cognitive functioning." (Doc. 200-1, Ex. 3.)
Dr. Crago spent two days evaluating Petitioner. (Doc. 200-1, Ex. 3 at 1.) Petitioner told Dr. Crago that he began smoking marijuana at approximately nine years of age and "enjoyed hallucinating." (Id.) He progressed from smoking marijuana to "mushrooms and acid," amphetamines, downers, cocaine, and alcohol. (Id. at 2.) Petitioner also said that, in addition to drinking alcohol, he had shot "two riggs" of cocaine intravenously on the day of the murder. (Id. at 1.)
Diagnosing Petitioner with Substance Abuse, currently in remission, Dr. Crago concluded that Petitioner historically functioned as a drug addict, who most frequently abused alcohol, cocaine, and LSD. (Id. at 5.) Based on standardized testing, Dr. Crago found Petitioner's intelligence to be "in the average range" and his cognitive functioning affected only by educational deficits, not any significant anxiety, pathological thought patterns, or residual brain damage. (Id. at 3.)
In terms of personality functioning, however, Dr. Crago determined that Petitioner was "quite immature" and "moderately to severely disturbed." (Doc. 200-1, Ex. 3 at 1.) "Although not floridly or overtly psychotic or schizophrenic, his thinking and reality testing showed definite evidence of a thought disorder including hallucinations and paranoid trends. He might best be characterized as a functioning or borderline schizophrenic." (Id. at 4.) Dr. Crago concluded that Petitioner presented as suffering from Mixed Personality Disorder, with schizotypal, borderline, paranoid, antisocial and avoidant features." (Id. at 5.) On the basis of his immaturity and thought disorder, Dr. Crago further opined that Petitioner was "quite reactive to his environment," a condition which might manifest
With regard to the offense, Petitioner denied murdering the victim, but admitted entering the house to commit burglary. Petitioner denied knowing the house was occupied and indicated that he became afraid and left "when he felt a cold hand grasp his wrist and saw something white which he felt was a `ghost.'" (Id. at 1.) Because Petitioner denied participating in the murder, Dr. Crago determined it was "impossible to accurately assess his sanity" and "whether he knew right from wrong" at the time of the crime. (Id. at 5-6.) Dr. Crago concluded, however, that if Petitioner had in fact committed the murder, "it is highly possible" "he was insane or irrational at the time" because "extreme alcohol intoxication and especially cocaine intoxication often precipitate psychotic behavior even in individuals who are much less disturbed" than Petitioner. (Id. at 6.)
Because the physical evidence undisputedly established Petitioner's presence inside the bedroom, the defense aimed to establish that Petitioner left the house before Davis killed the victim (the "nonparticipation theory"), to attack the prosecution's charge that Petitioner was "actively and intimately involved in" the murder. Counsel sought to prove that Petitioner entered the house out of curiosity and under the mistaken belief that it was vacant, but terminated his involvement by fleeing the premises minutes after he entered and realized his error. (RT 12/3/87 at 158, 166; RT 3/9/90 at 124.)
The jury, obviously rejecting defendant's testimony, found him guilty.
Salazar, 173 Ariz. at 404, 844 P.2d at 571.
One month following Petitioner's conviction, the court held an aggravation/mitigation hearing. In a pre-hearing brief, the prosecution argued that two aggravating factors required imposition of the death penalty: Petitioner committed the murder with the expectation of pecuniary gain, A.R.S. § 13-703(F)(5), and in an especially cruel, heinous, or depraved manner, A.R.S. § 13-703(F)(6). (ROA I at 382-92.)
Defense counsel also submitted a pre-hearing brief. (Id. at 352-69.) Consistent with the defense's guilt-phase theory, the memorandum asserted that Petitioner did not participate and was not present when Davis killed the victim. (Id. at 354-56.) The defense argued against imposition of the death penalty because the evidence could not conclusively establish that Petitioner killed the victim, it was clear that the jury found Petitioner guilty under the felony murder rule, and the State failed to prove beyond a reasonable doubt that Petitioner killed, attempted to kill, or intended to kill the victim. (Id. at 356-57.) Finally, the memorandum urged the court to consider a number of mitigating factors: (1) Petitioner was intoxicated from alcohol at the time of the crime and thus his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law's requirements was significantly impaired; (2) Petitioner's role in the killing was "relatively minor"; (3) Petitioner could not have reasonably foreseen that his conduct would create a grave risk of death because he believed the house was unoccupied and he and Davis never discussed what they would do if inhabitants were encountered; and (4) Petitioner's young age — twenty-two at the time of the crime — and lack of prior felony convictions (id. at 366-68). See A.R.S. § 13-703(G)(1), (3), (4) & (5).
To buttress the nonparticipation mitigation theory at the presentencing hearing, defense counsel elicited testimony from Petitioner's parents and brother that Petitioner was neither violent nor aggressive. Petitioner's parents testified that Petitioner never got into fights at school or home, did not have a violent temper, and was well regarded by neighbors and employers. (RT 1/14/88 at 6-9, 12-15.) In response to the judge's questioning, Mrs. Salazar acknowledged that Petitioner used marijuana and drank alcohol, but said she was unaware of him using any other types of drugs or drinking "hard liquor." (Id. at 20-21.) She further testified that she had never seen Petitioner change personalities or become aggressive when intoxicated. (Id. at 21.)
Petitioner's younger brother, Mauricio, testified that Petitioner got into a lot of fights at school, but most were in defense of Mauricio. (Id. at 23.) He and Petitioner began drinking beer and smoking pot in the fifth or sixth grade. (Id. at 24.) In junior high, they started doing other types of drugs, including LSD, cocaine, speed, and mushrooms. (Id. at 25.) According to Mauricio, Petitioner drank and used drugs up to the time of the crime. (Id.) Although Mauricio admitted seeing Petitioner on occasion become violent and "explode" when drunk (id. at 30-31), he testified that most of the time Petitioner was "really quiet," "withdrawn," and "would just keep to himself" when intoxicated (id. at 26, 31).
Prior to sentencing, the trial judge also received and considered a presentence report (PSR) prepared by the court's probation department. (Doc. 200-1, Ex. 5.)
(Id. at 4.) Petitioner was a poor student, who had to repeat the third and eighth grades. (Id. at 5.) "The defendant described himself as `a mellow person' but confirmed that he had a reputation of being an aggressive fighter in high school." (Id.) Petitioner admitted being an alcohol and drug abuser, but claimed to be in sound physical health and denied any psychological difficulties. (Id.) "He expressed himself in a calm manner and articulated very well, especially considering his limited education." (Id.)
Petitioner's criminal record included several charges as a juvenile, including throwing rocks at a bus, running away from home, fighting with police officers, and stealing a purse.
The PSR concluded:
(Doc. 200-1, Ex. 5 at 6.)
Appended to the PSR were fifteen letters of support from friends, family, and former co-workers. Many of the letters characterized Petitioner as a non-violent person who stayed out of trouble; all described
Finally, the PSR included a report from psychologist Catherine Boyer, who at the court's request conducted a general evaluation of Petitioner following his conviction. (Doc. 200-2, Ex. 14.) Other than depression, Dr. Boyer found that Petitioner presented "no indication of any other major mental disorder." (Id. at 5.) Testing indicated Petitioner functions in the average range of intelligence, and Dr. Boyer found no gross cognitive deficits. (Id. at 2, 5.) In view of Petitioner's drug abuse history, however, Dr. Boyer opined that Petitioner may have some mild neuropsychological impairment. (Id. at 2.) Though Petitioner denied any incidents of abuse, or significant family conflicts, Dr. Boyer noted that the difficulties among his siblings "would suggest some degree of family conflict or dysfunction, despite [Petitioner's] generally positive description of family life." (Id.) She concluded that chronic and severe substance abuse had been the primary problem throughout Petitioner's life and diagnosed him as in remission from "Alcohol Dependence" and "Drug Abuse (LSD, marijuana, cocaine)." (Id. at 5.) In conversations with Dr. Boyer, Petitioner maintained his innocence. He admitted consuming a large quantity of alcohol before entering the victim's home, but denied being present at the time of the murder. (Id. at 2.) Dr. Boyer was unable to determine "[t]he extent to which drug or alcohol intoxication may alter [Petitioner's] behavior," but found "some indication that at least in times in the past, he has been aggressive while intoxicated." (Id. at 5.)
Sentencing took place on February 8, 1988, several weeks after the mitigation hearing. Defense counsel Hurd argued against the State's alleged aggravating factors and argued to the court that, in addition to being a mitigating factor, the felony murder rule prevented the court from imposing the death penalty absent a finding beyond a reasonable doubt that Petitioner killed, attempted to kill, or intended to kill the victim. (RT 2/8/88 at 12-13.) In support of its theory that Davis committed the murder, the defense emphasized the following points: (1) Petitioner had been drinking heavily and was very intoxicated when he entered the house, (2) Petitioner did not know the victim and believed the house was unoccupied, and (3) none of the physical evidence implicating Petitioner was found near the bed side of the room by the victim's body. (Id. at 8-12.) Counsel also reurged the mitigating factors identified in the presentencing brief: (1) due to his highly intoxicated state, Petitioner lacked the capacity to appreciate the wrongfulness of his conduct; (2) he was a minor participant in the killing; (3) he entered the house believing it to be uninhabited and thus could not have reasonably foreseen that a death would occur; (4) his young age; and (5) his lack of significant criminal record. (Id. at 17-18.) In closing, the defense cited Dr. Boyer's report, which described Petitioner as "the type of person
Petitioner also addressed the court before sentencing: "Your Honor, I'd like to say I feel really bad about what happened that night. I had no idea that would happen. I didn't kill that poor lady. I pray for her and her family every night. Your Honor, I'd ask you not to give me the death penalty." (Id. at 20.)
Following the arguments of counsel, the court entered its findings. With regard to the "especially cruel, heinous or depraved" aggravating factor, the court found that A.R.S. § 13-703(F)(6) was proven beyond a reasonable doubt based on "the excessive amount of gratuitous violence on the victim, the senselessness of the murder and the helplessness of the victim." (Id. at 36.) Specifically, the court determined that:
(Id. at 34-36.) The Court did not address, or make any findings regarding, the "pecuniary gain" aggravating factor alleged by the State.
Regarding mitigation, the court found that Petitioner had failed to establish any of the statutory factors set forth in A.R.S. § 13-703(G). (Id. at 36-37.) With regard to the "relatively minor" participant factor in particular, see A.R.S. § 13-703(G)(3), the court expressly found that Petitioner had failed to establish by a preponderance of the evidence that he was not present at the time of the murder. "The facts and circumstances of how the entry was made, where the bedroom was, and the footprints and fingerprints of both Defendants instead show beyond reasonable doubt that both were present when Ms. Kaplan was murdered." (Id.) Addressing non-statutory mitigation, the court found that Petitioner had proven the following factors: (1) lack of a prior felony conviction, (2) "the fact that alcohol and perhaps other substances were used prior to the break-in," (3) the fact that the jury was instructed on felony-murder, and (4) the question of whether Petitioner engaged in the actual strangulation. (Id. at 37-38.) As to the third and fourth factors, the court further found that Petitioner "was a major participant in the felony committed, and that his involvement led to either the actual participation in the strangulation or the other violence perpetrated on the victim, or indicated reckless indifference to human life by the Defendant's actions, when in his presence the victim was being murdered." (Id.) Under these circumstances, the court concluded, Petitioner's proven mitigating factors were not sufficiently substantial to call for leniency. (Id. at 39.)
On direct appeal, the Arizona Supreme Court upheld the trial court's findings with respect to the "cruel, heinous or depraved" aggravating factor and Petitioner's death eligibility under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (holding that death penalty may be imposed if a defendant convicted of felony murder was a major participant in the underlying felony and acted with reckless indifference to human life). Salazar, 173 Ariz. at 412-13, 844 P.2d at 579-80. As to mitigation, the court discussed each of Petitioner's proffered factors.
Regarding intoxication, the court found that Petitioner was not significantly impaired and appreciated the wrongfulness of his conduct because two witnesses testified at trial that Petitioner did not appear intoxicated; Petitioner testified in detail about what went on in the house, including in which hand he held a lighter to guide himself; and Petitioner "was thinking clearly enough to discard his shoes so that they could not be matched to the prints he knew he had made at the house." Id. at 413, 844 P.2d at 580. The court further rejected Petitioner's "attempt to downplay his degree of participation in the crime," reiterating that he was a major participant. Id. Similarly, the court rejected Petitioner's claim that he believed the house was unoccupied and therefore could not foresee the victim's death: "After entering the occupied house, defendant either personally beat and strangled the victim or, at the very least, watched or helped while
In his first state PCR petition, Petitioner argued that defense counsel Hurd and Redondo provided constitutionally deficient representation at sentencing for (1) failing to object to the trial court's consideration at sentencing of evidence produced during co-defendant Davis's trial, (2) not presenting evidence at the mitigation hearing regarding the effects of poly-substance abuse and Petitioner's state of mind, and (3) calling a detrimental witness at the mitigation hearing. (ROA II at 273-74, 278.) In support of the petition, PCR counsel proffered an affidavit from Petitioner, which claimed that trial counsel consulted with him only on a limited basis, that he knew of witnesses who could and should have been utilized at sentencing to testify to his character, and that he was extremely intoxicated at the time of the crime and had a long history of alcohol abuse but counsel failed to present expert testimony in this regard at sentencing. (Id. at 339.) Counsel also submitted an affidavit from Dr. Crago, who was uncertain why he was not called as a witness. (Id. at 441.) Dr. Crago avowed that Petitioner "could easily become psychotic" under stress and drug intoxication. (Id.)
The trial court conducted a two-day evidentiary hearing on Petitioner's IAC claims. Petitioner called Dr. Crago, PCR investigator Ron Sanchez, and trial counsel Hurd as witnesses. He also proffered an investigative report prepared by Sanchez that included Petitioner's available school records and summaries of interviews between Sanchez and several of Petitioner's friends and family members. The State submitted the pretrial Rule 11 reports of Drs. Gurland and LaWall and presented the testimony of Dr. Boyer.
At the PCR hearing, Hurd explained what his strategy was at sentencing, and why he did not offer Dr. Crago's report at the aggravation/mitigation hearing:
(Doc. 212, Ex. D at 137.) Hurd would not have wanted the sentencing judge to know Dr. Crago's conclusion that Petitioner was prone to dangerously assaultive behavior because "it wasn't consistent with the non-violent nature of [Petitioner] that [the defense was] trying to portray." (Id. at 152-53.) Counsel also told the PCR court that he did not investigate Salazar's school or medical records. (Id. at 142.)
The PCR court found counsel's strategy of pursuing a nonparticipation defense, including not presenting Dr. Crago as a witness at the sentencing stage, was a reasonable, tactical decision. (Doc. 212, Ex. G at 3.) The PCR court denied Petitioner's motion for rehearing on this issue, explaining that "there were a significant number of points which Dr. Crago's testimony would potentially have undermined for the defense" such that the "dubious benefit of
In Petitioner's second amended petition he alleged several instances of ineffective assistance of counsel in preparation for and throughout the sentencing proceedings. (Doc. 114.) Petitioner argued that counsel failed to conduct an investigation into Petitioner's background, to uncover mitigating, psychiatric and childhood information, and to present that information at the penalty phase. (Doc. 114 at 24.) Petitioner further argued that counsel had not provided mental health experts with access to the family and its history, as well as to an honest picture of Petitioner. (Doc. 114 at 25.) These allegations were construed as a failure to investigate and present evidence of Petitioner's social background (childhood, school records, criminal history, family problems) (Claim A-24) and a failure to provide mental health experts with a complete picture of Petitioner's background (Claim A-27). (Doc. 121 at 11-12.) The Court found Claims A-24 and A-27 procedurally defaulted and rejected Petitioner's argument that the ineffective assistance of PCR counsel could serve to excuse the default. (Doc. 121 at 18-20, 33; see also Doc. 133). In addition to Claims 24 and 27, Petitioner alleged that counsel rendered ineffective assistance by continuing the nonparticipation theory at the penalty phase ("Claim A-21") and failing to present evidence of Petitioner's psychological problems and character when intoxicated ("Claim A-22"), both of which "strongly suggested that he was unable to control his violent behavior." (Doc. 137 at 23-24.) Finding Claims A-21 and A-22 properly exhausted, the Court considered the claims on the merits.
Reviewing the evidence, this Court rejected Petitioner's contention that Hurd failed to conduct an investigation or confer with anyone about the mitigation strategy. (Doc. 177 at 39.) The Court also rejected Petitioner's conclusory assertions that counsel failed to investigate mental impairment and intoxication as potential mitigating factors. (Id.) The Court found Petitioner's assertion that counsel neglected to investigate and present evidence regarding Petitioner's "dysfunctional" upbringing, history of drug and alcohol abuse, good character when sober, and good conduct during pretrial incarceration not properly exhausted. (Id. at 39 n.17.) The Court also explained that this argument was based on evidence that was in fact before the sentencing judge via the reports of Drs. Boyer and Ginnetti and the presentence report, including the letters from friends and family appended thereto. (Id.) Finally, the Court found that the evidence supported counsel's decision to continue the nonparticipation theory at the penalty phase in lieu of admitting guilt and asserting that voluntary intoxication rendered him unable to control his conduct. (Doc. 177 at 46.) The Court denied the habeas petition, and granted a certificate of appealability as to Claims A-21 and A-22. (Doc. 177 at 69.) Petitioner appealed this Court's decision denying relief, and review of these claims remains pending before the Ninth Circuit while this Court reconsiders Claims A-24 and A-27 on limited remand. (See Doc. 195.)
Relying on new evidence submitted with his supplemental brief, Petitioner now asserts that if sentencing counsel or PCR counsel had conducted an adequate mitigation investigation, they could have presented a more complete and compelling mitigation picture, and that there was no
Dr. Crago now states that, in preparing his report during the trial, which was limited to the purpose of evaluating guilt phase defenses, he was provided with very little collateral information regarding Petitioner and his background. (Doc. 200-1, Ex. 1 at ¶ 1.) Dr. Crago declares that, having now reviewed the additional documentation, there is evidence of broad psychopathology in Petitioner's background:
(Doc. 200-1, Ex. 1 at ¶ 4.)
Dr. Crago states that had he been provided with this critical background information, he could have presented a report about the high level of family dysfunction in Petitioner's household, and explained that this level of dysfunction likely exacerbated Petitioner's neuropsychological problems. (Id., Ex. 1 at ¶ 5.)
At federal habeas counsel's behest, neuropsychologist Antonio E. Puente, Ph.D., evaluated Petitioner by conducting multiple interviews, neuropsychological testing, and an extensive record review, including Petitioner's legal history, family and developmental history, psychological and psychiatric evaluation and history, education records, and medical history. (Id., Ex. 12.) Dr. Puente also interviewed members of Petitioner's family and concluded that the "overall impression of the family is that it consisted of chaos and psychopathology." (Id., Ex. 12 at 3.) Dr. Puente found a significant historical record of psychopathology
Dr. Puente further opines that the integration of extensive historical and face-to-face as well as collateral interviews together with the administration of numerous neuropsychological tests reveals "a powerful, consistent, and historically, as well as scientifically, validated conclusion ... of long-standing and serious brain dysfunction, beginning before birth, and evolving into subsequent learning disability and intellectual limitations, poly-substance abuse, and significant pervasive mental disorder, which is in the form of depression and psychosis." (Doc. 200-1, Ex. 12, at 10.) Dr. Puente has diagnosed Petitioner with Fetal Alcohol Syndrome, Borderline Intellectual Deficiency, Learning Disability, History of Alcohol and Poly-substance Abuse, Major Depressive Disorder, Mixed Personality Disorder, Mild Cognitive Impairment, and Psychosis, Not Otherwise Specified. (Doc. 200-1, Ex. 12 at 10-11.)
Respondents assert that Petitioner's supplemental briefing reaches beyond the scope of remand to impermissibly attack the state court's ruling on Claims A-21 and A-22, claims which were previously denied by this Court and are currently pending appeal in the Ninth Circuit. (Doc. 212 at 12.) The Court disagrees.
"The rule of mandate requires a lower court to act on the mandate of an appellate court, without variance or examination, only execution." United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir.2006) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895)). Thus, in the instant matter, the Court cannot address the issues raised by Petitioner in his supplemental briefing if so doing would exceed the boundaries as delineated by the mandate. However, "courts are often confronted with issues that were never considered by the remanding court." United States v. Kellington, 217 F.3d 1084, 1093 (9th Cir. 2000) (citing Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir.1997)). Thus, upon receipt of a mandate this Court is free to do anything not "foreclosed by" the mandate or that does not run counter to the "spirit" of the circuit court's decision. Cassett v. Stewart, 406 F.3d 614, 621 (9th Cir.2005) (quoting Kellington, 217 F.3d at 1092-93). Additionally, though not cited by Respondents but arguably applicable in this case, the "law of the case doctrine," generally precludes courts from exercising their discretion to reconsider an issue previously decided by the same court. See Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir.1990). Because the supplemental briefing does not ask this Court to re-examine its previous ruling, neither the "rule of mandate" nor the "law of the case doctrine" preclude this Court from examining counsel's alleged ineffective performance raised in the supplemental briefing.
As Respondents point out, at issue in this Court's previous ruling was sentencing
Respondents assert that Petitioner's new evidence simply bolsters Dr. Crago's previous opinions and is cumulative to the evidence of neurological impairments presented in support of the exhausted claims. This contention is contradicted by the evidence. Dr. Crago prepared his report in reliance primarily on Petitioner's self-reporting. The report presented a clinical picture of a "disturbed individual" with a mixed personality disorder and clear demonstration of schizophrenic tendencies (see Doc. 200-1, Ex. 3), and Dr. Crago's "opinion that Petitioner may not have been in control of his conduct hinged on whether Petitioner was actually intoxicated." (Doc. 177 at 47.) However, in direct contrast to the present factual allegations suggesting Petitioner suffers significant neurological impairments of FAS and organic brain damage, Dr. Crago explained in his 1987 report that he found no evidence to suggest Petitioner's cognitive functioning was affected by residual brain damage or that his performance was affected by educational deficits. That Dr. Crago's proffered declaration seems to contradict this conclusion may perhaps be explained by Dr. Crago's acknowledgment that the information he received at the time he prepared his 1987 report was in direct contrast to the information he has now received about the high level of family dysfunction in Petitioner's household. (See Doc. 200-1, Ex. 1 at ¶ 5.) Accordingly, the Court concludes the new evidence is not merely cumulative because the evidence goes beyond "simply bolster[ing] Dr. Crago's opinions" (see Doc. 212 at 14), by contradicting some of the factual allegations asserted in Petitioner's exhausted claims of ineffective assistance at sentencing, and alleging, specifically, that counsel failed to investigate and present substantial mitigating evidence that, if presented to a mental health expert, would have suggested a diagnosis of FAS and organic brain damage.
Petitioner asserts in his supplemental reply brief that the "whole point of [Petitioner's] Martinez claim is that his mental health diagnoses and background evidence was not accurately presented at sentencing or at post-conviction," and that the "claims presented now contrast significantly with the bare-bones presentation at post-conviction." (Doc. 217 at 10-11.) Petitioner suggests that this new evidence places Petitioner's claims in a significantly stronger evidentiary posture, permitting them to benefit from de novo review under Martinez. (Id. at 11) (citing Dickens, 740 F.3d at 1317-20). In Dickens, the court held that a petitioner can establish that a "previously exhausted IAC claim" may be altered, rendering the claim unexhausted and potentially barred from federal review, "if new factual allegations either fundamentally alter the legal claim already considered by the state courts, or place the case in a significantly different and stronger
Specifically, the focus of the claims this Court previously ruled on was whether sentencing counsel was ineffective for failing to present mental health evidence from Dr. Crago that would have established that Petitioner was extremely violent and volatile when intoxicated. This bears little resemblance to the newly-developed IAC claim presented here — that counsel failed to conduct a complete social background investigation which would have provided mental health experts with information necessary to suggest and support a diagnosis of FAS and organic brain damage. Accordingly, the newly-developed claim is significantly different and features stronger evidence of potentially overlooked mitigation than evidence of Petitioner's propensity towards violence when intoxicated. See Dickens, 740 F.3d at 1317-19 (finding that general allegations concerning sentencing counsel's failure to "direct the work of the court-appointed psychologist" and adequately investigate petitioner's background bear little resemblance to allegations that suggest petitioner suffered from FAS and organic brain damage).
As the Court has pointed out, the claims Petitioner exhausted raised only conclusory assertions that counsel failed to investigate mental impairment and the possibility that Petitioner became violent when intoxicated during sentencing. (Doc. 177 at 39.) Petitioner now presents more specific, compelling, and fundamentally different allegations of IAC than previously raised and decided by the Court. Thus, the Court rejects Respondents' assertion that these issues are outside the scope of remand because they have already been decided by the Court and are pending review on appeal.
Petitioner's new factual allegations and new evidence, however, raise an issue not addressed in the supplemental briefing by either party: whether the new facts and evidence presented in this supplemental briefing, which were not previously alleged in Petitioner's second amended petition, are properly before the Court in the first instance. Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is obligated to specify in a federal habeas petition all grounds for relief, as well as the facts supporting each of these grounds. See Mayle v. Felix, 545 U.S. 644, 661, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (observing that Rule 2(c) requires pleading "separate congeries of facts" in support of each ground for relief); Blackledge v. Allison, 431 U.S. 63, 75 n. 7, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (observing that "notice" pleading in habeas is insufficient and that petition "is expected to state facts that point to a `real possibility of constitutional error'") (quoting Advisory Committee Note to Rule 4, Rules Governing Section 2254 Cases).
A plain reading of the factual allegations in the second amended petition and the supplemental briefing demonstrates that the claims have little in common other than the basic premise that sentencing counsel failed to conduct a constitutionally sufficient investigation into relevant mitigating evidence. The second amended petition asserted ineffectiveness based on the "failure to conduct an investigation into Petitioner's background, to uncover and present mitigating psychiatric and childhood
As a result of the new allegations raised in Petitioner's supplemental Martinez brief, the Court finds that additional briefing is necessary to determine whether the allegations are properly before the Court. The parties are therefore directed to file simultaneous briefs, limited to seventeen pages, on the following issues:
(1) Do Claims A-24 and A-27, as alleged in the supplemental brief, raise new claims that were not alleged in the second amended petition?
(2) If so, is amendment of the second amended petition to include the new factual allegations appropriate at this stage of the habeas proceedings?
The Court discourages repetition of facts and argument already briefed; the parties should instead simply reference prior pleading as necessary. As previously mentioned, the parties may also include briefing on the impact of the recent decision in Runningeagle v. Ryan on the Court's determination whether Martinez is applicable to Petitioner's claims.
Accordingly,
IT IS ORDERED that, no later than thirty (30) days following the filing of this Order, the parties shall each file a brief, not in excess of seventeen (17) pages, regarding the two issues set forth above.
IT IS FURTHER ORDERED that the parties may choose to address the impact of Runningeagle v. Ryan, No. 07-99026, 825 F.3d 970, 2016 WL 3213095 (9th Cir. June 10, 2016) on the applicability of Martinez to Petitioner's claims in their supplemental briefing.
