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Mitchell v. United States

September 30, 2010

LEZMOND MITCHELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



DEATH PENALTY CASE

MEMORANDUM OF DECISION AND ORDER

Petitioner Lezmond Mitchell, a federal prisoner under sentence of death, moves this Court to vacate his conviction and sentence under 28 U.S.C. § 2255. (Doc. 30.)*fn1 The Government filed a response opposing the motion, and Petitioner replied. (Docs. 49, 55.) After consideration of the motion and responsive pleadings, as well as the trial record and the numerous exhibits proffered by the parties, the Court concludes that Petitioner is not entitled to post-conviction relief and that further evidentiary development is neither required nor warranted.

PROCEDURAL HISTORY

On May 8, 2003, a jury convicted Petitioner of first degree murder, felony murder, robbery, kidnapping, use of a firearm during a crime of violence, and armed carjacking resulting in death. Petitioner and the victims were members of the Navajo Indian reservation, where the crimes occurred. Under the Federal Death Penalty Act, Petitioner faced capital punishment on the carjacking conviction. Following a penalty phase hearing, the jury unanimously returned a recommendation of death as to each of the two murder victims. This Court imposed that sentence on September 15, 2003. On September 5, 2007, the United States Court of Appeals for the Ninth Circuit affirmed on direct appeal. United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007). The Supreme Court denied a petition for certiorari on June 9, 2008. Mitchell v. United States, 128 S.Ct. 2902 (2008).

Petitioner filed the instant motion on June 8, 2009, and an amended motion on November 12, 2009. (Doc. 9, 30.) The Government filed its response on April 1, 2010. (Doc. 49.) Petitioner filed a reply on July 7, 2010. (Doc. 55.)

FACTUAL BACKGROUND

The Ninth Circuit summarized the relevant facts as follows:

In October 2001, Mitchell, then 20 years old, Jason Kinlicheenie, Gregory Nakai and Jakegory Nakai decided to rob a trading post on the Arizona side of the Navajo Indian reservation. Mitchell and 16 year-old Johnny Orsinger set out from Round Rock, Arizona, for Gallup, New Mexico, on October 27 to look for a vehicle they could steal to use during the robbery. They bought one knife and stole another while there. Hitchhiking back to the reservation, they were picked up by a trucker who took them part of the way.

Meanwhile, on the afternoon of Sunday, October 28, 2001, Alyce Slim (63 years old) and her nine year-old granddaughter, Jane Doe, left Fort Defiance, Arizona to go to Tohatchi, New Mexico where Slim hoped to secure the services of Betty Denison, a traditional medicine person, for leg ailments. It is a 35 minute drive that the two made in Slim's pewter-colored double cab Sierra GMC pickup truck. They got to Tohatchi about 4 p.m. Denison was unable to assist her, but thought another medicine woman, Marie Dale, might be able to help. She, Slim, and Jane drove to Twin Lakes, New Mexico where Slim arranged an appointment with Dale for the next day. The three returned to Denison's home where they dropped Denison off around 5 p.m., then Slim and her granddaughter left. That is the last time they were seen alive.

Somewhere in route, and somehow, Mitchell and Orsinger got into Slim's truck. Slim and Jane were in front, Mitchell in the right-rear passenger seat and Orsinger in the left. Slim stopped near Sawmill, Arizona, to let Mitchell and Orsinger out of the car, but Orsinger started stabbing her with a knife and Mitchell joined in. Slim ended up being stabbed 33 times, both from the left and right, with sixteen incised wounds on her hands that indicated she fought the attack. Once dead, her body was pulled onto the rear seat. Jane was put next to her. Mitchell drove the truck some 30-40 miles into the mountains with Jane beside her grandmother's body.

There, Slim's body was dragged out. Jane was ordered out of the truck and told by Mitchell "to lay down and die." Mitchell cut Jane's throat twice, but she didn't die. Orsinger and he then dropped large rocks on her head, which killed her. Twenty-pound rocks containing blood tied to Jane were found near the bodies. Mitchell and Orsinger returned to the site with an axe and shovel. Mitchell dug a hole while Orsinger severed the heads and hands of Jane and Slim. Together, they dropped the severed body parts (along with Mitchell's glove) into the hole, and covered them. The torsos were pulled into the woods.

Later they burned the victims' clothing, jewelry, and glasses. Mitchell and Orsinger washed the blood from the knives in a nearby stream; the next day, Mitchell also washed the knives with alcohol to remove any blood. Jane's mother, Marlene, became concerned when Jane and Slim, who was Marlene's mother, had not returned home. She tried to call Slim on her cell phone Sunday night, then the next morning at home, but got no answer. After checking at Slim's house and Jane's school, Marlene filed a missing persons report on Tuesday.

On Wednesday, October 31, 2001, the Red Rock Trading Post, a convenience store and gas station located in Navajo territory, was robbed by three masked men. Kinlicheenie supplied the masks as well as his parents' car for use after the truck was abandoned; Mitchell carried a 12-gauge shotgun, and Jakegory Nakai had a.22 caliber rifle. Charlotte Yazzie, the store manager, was mopping the floor when one of the robbers assaulted her, striking her with his firearm and pulling her behind a desk. Watching this, another store clerk, Kimberly Allen, ducked behind shelving. A second robber saw Allen and pushed her against the counters. When Allen said she didn't know the combination to the safe, the gunman told her, "If you lie to me or you don't cooperate with us, we are going to kill you." He told Allen to turn on the gas pump. As she did, she saw a pickup truck parked outside, which she described as a double cab beige Chevrolet. Yazzie was taken into a back room where the robbers demanded, and she provided, more money. Mitchell, Nakai and Kinlicheenie emptied the cash registers and safe and then tied down Allen and Yazzie in the vault room. They made off with $5,530 and Yazzie's purse.

The robbers drove back to Kinlicheenie's car and he followed the truck to a place about a mile and a half south of Wheatfields, Arizona, where Mitchell set fire to it using kerosene stolen from the Trading Post. They returned to the Nakai residence and split the money. Mitchell got $300 from Kinlicheenie.

As it happens, a customer and his girlfriend pulled into the parking lot while the robbery was in progress and saw two of the masked gunmen, one of whom was wearing purple gloves. The customer also saw a beige, extended cab Sierra or Silverado model truck parked at the fuel tank. The customer's girlfriend took down the license plate number and gave it to one of the Trading Post employees. The next day, a Navajo police officer discovered an abandoned pickup truck a mile and a half south of Wheatfields, Arizona, within the Navajo Indian reservation. The officer detected the odor of gasoline, and portions of the truck's interior were burned. It turned out to be Slim's 2001 GMC Sierra pickup. Criminal investigators discovered a purple latex glove and Halloween masks inside the truck, as well as Mitchell's fingerprints and Slim's blood. Based on this information and a tip, investigators focused on Orsinger, Orsinger's father, Mitchell, Jakegory Nakai and Gregory Nakai, among others. On the morning of November 4, 2001, FBI Agent Ray Duncan conducted a briefing with criminal investigators and SWAT team officers of the Navajo Department of Law Enforcement. Tribal warrants were issued and executed 6 at the house of Gregory Nakai. Mitchell, Jimmy Nakai, and Gregory Nakai were arrested. Mitchell had been asleep and wore only a t-shirt and shortcuts. He asked for his pants, which he told an FBI agent were near a bunk bed on the floor. As the agent was picking them up, a silver butterfly knife fell from a pocket. Gregory Nakai and his mother, Daisy Nakai, consented to a search of the house. Two FBI agents, an evidence technician, and a Navajo criminal investigator conducted the search. They retrieved the silver butterfly knife and found a second butterfly knife with a black handle. Trace amounts of blood from the silver knife were matched to Slim. The search also turned up a newspaper that had a front page story on the Trading Post robbery, and a cell phone belonging to Slim.

Agent Duncan and a Navajo criminal investigator met with Mitchell at the Navajo Department of Criminal Investigations around 1:30 p.m. Mitchell signed a waiver of his Miranda rights and, after flipping a coin, agreed to talk. When asked about his whereabouts on the weekend of October 27, Mitchell stated that he had been drinking around Round Rock. He denied being involved in the disappearances and robbery. Mitchell then agreed to a polygraph examination, which FBI Special Agent Kirk conducted about 5:30 p.m. Mitchell was reminded that his Miranda rights still applied and he signed an FBI consent form after reading it. Kirk told Mitchell that the test results indicated he had lied. Mitchell made inculpatory statements about the robbery and agreed to a tape recorded interview after again being reminded of his Miranda rights. Mitchell admitted his involvement in the Trading Post robbery, and also confirmed that he was present when "things happened" to Slim and Jane. He agreed to help investigators find the bodies. The interview ended around 11:00 p.m.

Orsinger was arrested the next day, November 5, 2001, and he, too, agreed to take agents to the bodies. Orsinger had difficulty doing so, and agents called for Mitchell to be brought out. Mitchell directed Navajo police officers to the site. While there, Mitchell acknowledged to Kirk that his Miranda rights were in effect and agreed to answer more questions. According to the agent, Mitchell stated that he had stabbed the "old lady," and that the evidence would show and/or witnesses would say that he had cut the young girl's throat twice. Mitchell said he told Jane to "lay down on the ground and die," and that he and Orsinger then gathered rocks, and with Orsinger leading on, the two took turns dropping them on Jane's head. Mitchell indicated that he and Orsinger retrieved an axe and shovel, severed the heads and hands, buried the parts in a foot-deep hole, burned the victims' clothing, and cleaned the knives in a stream.

Mitchell was returned to tribal jail and taken before a tribal judge on November 7. A federal indictment was issued on November 21, and on November 29 an FBI agent picked up Mitchell from the tribal jail and drove him to the courthouse in Flagstaff, Arizona. Just before arraignment, agents read Mitchell his Miranda rights and obtained a signed waiver. Mitchell explained that one to two weeks before the Trading Post robbery, he had talked with Jakegory Nakai about committing a robbery. He and Orsinger hitchhiked from Round Rock, Arizona to Gallup, New Mexico to purchase liquor and while in Gallup, the two visited a shopping mall where they purchased one knife and stole another. They caught a ride to Ya Ta Hey, New Mexico, where they were picked up by an older lady and a young girl near the border. Mitchell asked to be let off near Sawmill, Arizona, and when the truck stopped, Orsinger began stabbing the woman. Mitchell admitted that he stabbed her four to five times. They put the older woman and the little girl into the back, and drove into the mountains where they dragged Slim's body out, threw rocks on the girl's head, and severed the victims' heads and hands.

Mitchell said this was Orsinger's idea, because he would also have severed the feet.

Mitchell, 502 F.3d at 942-45.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255(a), a federal prisoner may seek relief from his sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." A claim for relief under § 2255 must be based on constitutional error, jurisdictional error, or "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

A § 2255 movant is entitled to an evidentiary hearing if (1) he alleges "specific facts which, if true, would entitle him to relief; and (2) the petition, files and record of the case cannot conclusively show that he is entitled to no relief." United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004) (citing 28 U.S.C. § 2255(b)). Vague, palpably incredible, or frivolous allegations warrant summary dismissal without a hearing. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

Petitioner was represented at trial and sentencing by three attorneys: John M. Sears, Esq., and Assistant Federal Public Defenders Jeffrey A. Williams and Gregory A. Bartolomei. The Government deposed each in February 2010 and appended transcripts of these depositions to its opposing memorandum. The Court has reviewed these materials as well as the substantial number of documents proffered by Petitioner in support of his claims. For the reasons set forth herein, the Court determines that counsel did not perform ineffectively at trial.*fn2

A. Legal Standard

Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

The inquiry under Strickland is highly deferential, and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Thus, to satisfy Strickland's first prong, a defendant must overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial." White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).

With respect to Strickland's second prong, a petitioner must affirmatively prove prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

A court need not address both components of the inquiry, or follow any particular order in assessing deficiency and prejudice. Id. at 697. If it is easier to dispose of a claim on just one of the components, then that course should be taken. Id.

B. Intoxication Defense (Claim A)

On the day of his arrest, after initially denying involvement in the disappearance of the murder victims, Petitioner gave a recorded statement to FBI and Navajo Nation investigators during which he admitted getting a ride in Slim's truck and seeing Orsinger stab Slim and cut the child's throat. During this interview, Petitioner repeatedly claimed to have been drinking and said he "blacked out" at times while in the truck. (Doc. 9, Ex. 18 at 5-9.) The next day, Petitioner led investigators to the crime scene and admitted his role in stabbing Slim, but claimed that he was so drunk at the time of the murder he could not remember how many times he had stabbed her. (Doc. 9, Ex. 20.) In a statement several weeks later, Petitioner asserted that he had consumed "a couple of forty ounce bottles of beer prior to going to Gallup" and bought more liquor once there. (Doc. 9, Ex. 21.) To his defense attorneys Petitioner claimed that he was "sober" at the time of the crimes. (Doc. 30 at 78.)

In his motion to vacate, Petitioner argues that trial counsel failed to thoroughly investigate intoxication as a defense because they did not "seek any evidence independent of their own client regarding his state of intoxication." (Id. at 74-75.) He asserts that, because counsel failed to uncover Petitioner's longstanding substance abuse history, they unreasonably accepted his claimed sobriety "even though it was contradicted by significant portions of the discovery and by percipient witnesses." (Id. at 78.) He further argues there is a reasonable probability he would not have been convicted of carjacking -- the capital count -- had evidence of impaired executive functioning been presented to the jury.

1. Relevant Facts

In support of his § 2255 application, Petitioner has proffered declarations from numerous individuals familiar with his drug and alcohol use, including co-defendants Gregory Nakai and Johnny Orsinger. Nakai states that in the summer prior to the crimes, his "group," including Petitioner, smoked marijuana daily, ate mushrooms occasionally, and increasingly used a lot of crystal meth and cocaine.*fn3 (Doc. 12, Ex. 107.) Orsinger declares that in October 2001: We used as much drugs as we ever did, everything we could get a hold of by any means. We didn't smoke just marijuana -- we always added something to our cigarettes to make the marijuana stronger. I always added cocaine and meth to my marijuana before I smoked it; I don't know exactly what Lezmond added to his marijuana but it was along those lines. By the time we got to Gallup, Lezmond and I had been awake for several days drinking beer and using drugs. We'd been awake for so many days, it felt like walking around in a cloud. It was like we were puppets, our bodies kept moving forward, but I'm not sure how. (Doc. 12, Ex. 109 at 2-3.) Orsinger does not recall whether he spoke with anyone from Petitioner's defense team but states: "If it'd been explained to me that our drug and alcohol use, and how many days we had been awake by then, could've been helpful to my case too, I would've provided the information in this declaration." (Id. at 3.)

Petitioner has also proffered a declaration from Vera Ockenfels, a licensed attorney who served as the mitigation specialist for Petitioner's defense team. She asserts that she prepared an exhaustive study of Petitioner's social and psychological background and reported to counsel that Petitioner was addicted to alcohol and drugs and had been abusing drugs since age eleven. (Doc. 30, Ex. 131 at 2.) According to Ockenfels, "there was substantial evidence that Mitchell was drunk and high on drugs at the time of the killings." (Id. at 3.) Her declaration does not specifically identify this evidence but refers to "government-provided discovery." (Id.) Ockenfels also claims that she recommended defense counsel interview Orsinger about whether he and Petitioner had consumed alcohol and drugs prior to the killings but that counsel said Orsinger's lawyer would not permit such an interview. According to her declaration, she later learned that the defense investigator, Karl Brandenburger, had in fact interviewed Orsinger.*fn4

In his deposition, Jeffrey Williams states that he and Petitioner's other lawyers investigated the viability of an intoxication defense. Williams spoke with Petitioner about his drug and alcohol history, and reviewed Ockenfels's report: I thought the drug use was primarily marijuana. I know he experimented with some harder stuff. But I was never under the impression that he was addicted to meth or coke. In fact, I think I recall meth was probably just getting on the reservation back then. It wasn't very common. (Doc. 49, Ex. 1 at 30; see also id. at 17.) In addition, counsel confronted Petitioner with his post-arrest statements to the FBI about blacking out. (Id. at 17-18.) Petitioner "adamantly" denied being under the influence of anything at the time of the crimes; "[i]n fact, there was some discussion about making sure they were clear-headed." (Id. at 33.) Williams also attempted to interview co-defendant Orsinger, but Orsinger's attorney refused the meeting. (Id. at 20, 93.) Williams was also unaware of anything in Orsinger's statement to investigators indicating that he or Petitioner had been under the influence of intoxicants at the time of the offense. (Id. at 22.) Finally, counsel looked at the crime scene photos but could find no corroborating evidence of drinking or drug use. (Id. at 58.) In Williams's view, a defense of intoxication "wasn't even close." (Id. at 32.)

According to counsel Gregory Bartolomei, Petitioner "made it clear that he had not been ingesting or drinking the day of the crime and the whole period of time right through." (Doc. 49, Ex. 2 at 9-10; see also id. at 26-27, 38.) Thus, although Ockenfels viewed Petitioner's substance abuse as a problem, counsel could not relate it to the date of the crime; counsel said "it didn't seem to apply." (Id. at 21.) Bartolomei also states that Ockenfels was mistaken about Orsinger being interviewed by Brandenburger. (Id. at 22-23, 75.) Rather, Brandenburger delivered a subpoena during trial but Orsinger refused to testify. (Id. at 23, 75; see also RT 5/6/03 at 3332-34.) Counsel John Sears similarly states that Petitioner denied being intoxicated: "What sticks in my mind is the idea that by the time they were on the road and picked up by the victims in this case, he said they were not high." (Doc. 49, Ex. 3 at 76.) Sears further states that the defense team opted against an intoxication defense, not only because there was little supporting evidence, but because it would have contradicted the theme that Petitioner "was a good person led astray under circumstances" and that co-defendant Orsinger was the impetus for the violence. (Doc. 49, Ex. 3 at 12, 14-15.) He explains:

There was a particular concern -- this case arose not long -- went to trial not long after September 11. And based on the extensive jury selection process and the questionnaire responses that were generated, I personally observed [what] I thought was a real hardening and real shift in the attitude of the potential jurors and the seated jurors about lots of things that, historically, I had used in other capital cases and that, put in simplest terms, that things that you would say about a defendant, about a defendant's background or a defendant's mental challenges by way of explanation or even a defense in 2003 were likely to be looked at as excuses for terrible conduct and would be negative.

....

And I was not comfortable and would not have been comfortable going forward with an argument not simply because -- that he was intoxicated and impaired at the time of the offense [--] not because I was concerned about what the truth was. The decision really was more nuanced than that. The decision was based, in part, on that and our belief that he was more likely to be telling us what really happened in private than puffing himself up for Johnny Orsinger, but more to the question of whether this was a winning defense to present to the jury.

In the context of 2002-2003, given what had happened and who had died and how they died, we made a collective decision, I believe, that ultimately that the best defense was simply that this was Johnny, that Johnny -- this was -- everything about this crime, the way it was committed, why it was committed, the senselessness of it, all those things were Johnny Orsinger and not Mr. Mitchell.

And the presentation of this "We were all drunk," "We were all high," or some combination of that or "blacking out" didn't fit in our minds with that argument. I don't know that we saw it as an either/or proposition, that you could only present one.

But we concluded that strategically it just didn't make any sense to argue this is what happened, this is how it happened. But "By the way, I don't really remember because I was blacking out," we just didn't see that as an appropriate way to present that information to the jury.

(Id. at 35, 77-78.)

2. Analysis

"[C]counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691.

"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengable." Id. at 690. Moreover, "[t]he law does not require counsel to raise every available non-frivolous defense." Knowles v. Mirzayance, 129 S.Ct. 1411, 1422 (2009). Here, Petitioner has not shown that counsel's representation fell below an objective standard of reasonableness.

First, the record establishes that counsel reasonably investigated the viability of an intoxication defense. They spoke with their client, who adamantly denied being intoxicated at the time of the offense, despite his statements to law enforcement that he had been drinking. They reviewed the crime scene photos, looking for corroborating evidence such as beer or liquor bottles. They enlisted a social historian, who gathered records, investigated Petitioner's background, and documented his substance abuse history. (Doc. 43, Ex. 93 at 32-33.) They also enlisted mental health experts to evaluate him. (Doc. 43, Ex. 94 at 15-16; Doc. 49, Ex. 1 at 16-17.) They tried to get information from co-defendant Orsinger, who refused to cooperate and invoked his Fifth Amendment right not to testify. (See RT 5/6/03 at 3327-34.)

Given these efforts, this case is clearly distinguishable from Jennings v. Woodford, on which Petitioner relies. In Jennings, the Ninth Circuit found ineffectiveness where counsel failed to perform a thorough investigation or consult with his client before settling on a weak alibi defense. 290 F.3d 1006, 1013-16 (9th Cir. 2002). Specifically, the court faulted counsel for failing to obtain and review voluminous medical records, investigate his client's family history, seek the appointment of experts to evaluate his client's mental state, follow up on a report from his client's ex-wife that the defendant had once attempted suicide and was diagnosed as schizophrenic, talk to his client or others about his drug use, or investigate past involuntary commitments. Petitioner's counsel, by contrast, conducted a thorough investigation before making a tactical decision to forgo an intoxication defense. Second, the choice not to present a voluntary intoxication defense was reasonable given the lack of evidentiary support. See Williams v. Woodford, 384 F.3d 567, 617 (9th Cir. 2004) (finding no ineffectiveness for failing to assert diminished capacity defense given lack of credible evidence of contemporaneous drug use). It is undisputed that Petitioner and Orsinger were the only individuals involved with the carjacking and murders and were, therefore, the only eyewitnesses who could provide any specific details about alcohol and drug consumption at the time of the offense. However, Petitioner denied being intoxicated and chose not to testify. There was nothing in Orsinger's statements regarding drug or alcohol use, and in any event Orsinger refused to testify.*fn5 Petitioner did tell investigators he was "too fucked up that night" to remember where they went to dump the bodies, how they got back to the road afterwards, or what happened to the truck after they got back to town. (Doc. 9, Ex. 18 at 5-9.) However, Petitioner had no difficulty later leading authorities to the crime scene in a remote, undeveloped area.*fn6 And although counsel could have presented witnesses familiar with Petitioner's substance abuse history, including his alleged escalating use of alcohol and drugs in the months or even days preceding the offense, such evidence would not have been particularly probative of his mental state on the day in question.

Finally, counsel's decision to focus on reasonable doubt and "Johnny did it" defenses in lieu of voluntary intoxication was not unreasonable. Although these defenses were not necessarily inconsistent, "[e]vidence of drug and alcohol abuse is a 'two-edged sword,' and a lawyer may reasonably decide that it could hurt as much as help the defense." Housel v. Head, 238 F.3d 1289, 1296 (11th Cir. 2001) (internal citation omitted). Sears explained that in his experience there had been a "shift in the attitude" of juries against using excuses such as drunkenness to explain terrible conduct. (Doc. 49, Ex. 3 at 35, 77-78.) Williams said he was concerned about losing credibility with the jury by, for example, saying Petitioner was not at the scene when he clearly was there: "I was concerned about losing them in the guilt phase and then not having them at all for the sentencing phase." (Doc. 49, Ex. 1 at 31.) Thus, counsel strategically chose to try to preserve their credibility with the jury by not asserting a defense they thought would fail. Cf. Williams, 384 F.3d at 618 ("We cannot fault [counsel's] reasonable strategic decision to capitalize on any lingering doubts of the jurors and to keep from them mental-state and drug-use evidence that might jeopardize their lingering doubts.").

Given the weaknesses in the voluntary intoxication defense, counsel's strategic choice not to pursue that defense was reasonable and does not constitute an action outside the range of professionally competent assistance. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.").

C. Custodial Statements (Claim E)

Petitioner contends that counsel were ineffective in failing to assert that Petitioner's Miranda waiver was involuntary as a result of his mental deficiencies and cultural heritage in combination with the investigators' interrogation techniques. (Doc. 30 at 131-32.) The Court disagrees.

Before trial, defense counsel enlisted the services of Dr. Barry Morenz, an Associate Professor of Clinical Psychiatry at the University of Arizona Health Sciences Center. Dr. Morenz met with Petitioner twice between October 2002 and January 2003, had him examined by a neuropsychologist and neurologist, and arranged for a brain imaging study, an MRI, and an EEG. (Doc. 43, Ex. 94.) The neurological exams were all normal; the neuropsychological testing revealed some mild deficits in executive functioning, which Dr. Morenz opined might contribute to Petitioner being more impulsive in his actions. (Id. at 18-19.) Dr. Morenz also noted that Petitioner communicated "more articulately and intelligently" than he had anticipated based on listening to the taped police interview and stated that his "cognition was grossly intact." (Id. at 17.) Defense counsel Bartolomei testified in his deposition that nothing in Morenz's report raised any questions in his mind concerning the voluntariness of Petitioner's statements. (Doc. 49, Ex. 2 at 58.) Sears observed that Petitioner "was engaged, appropriate, understood, or at least appeared to understand all of what was being discussed in his presence. I thought he was a particularly intelligence [sic] person given his background circumstances." (Doc. 49, Ex. 3 at 20.) In his deposition, Williams acknowledged that there was no evidence to suggest Petitioner did not know what he was doing when he waived his rights or that he did not understand what he was waiving. (Doc. 53 at 4-5.) Out of an abundance of caution counsel requested a voluntariness hearing, but he did not "remember anything that was suggested that the statements were in any way involuntary." (Id. at 5.)

At the pretrial voluntariness hearing, Petitioner testified and acknowledged being advised of his rights and signing waiver forms. (RT 1/30/03 at 126, 132.) He asserted that he agreed to cooperate because the FBI agents said it would benefit him at sentencing. (Id. at 119-20.) Counsel argued that the Government had coerced Petitioner's statements through the use of polygraph testing, crime scene confrontation, and the delayed filing of charges in federal court. (RT 1/31/03 at 42-49.) Counsel further remarked that Petitioner was an "[u]neducated, unskilled, unsophisticated young [man] living in a remarkably remote third-world environment on the eastern part of the Navajo Reservation" and that FBI agents had promised benefits in exchange for his cooperation. (Id. at 52, 60.)

The record establishes that counsel investigated Petitioner's mental capabilities and discovered nothing to indicate that his custodial statements were involuntary due to lack of intelligence or other cognitive infirmity. Nor did Petitioner suggest that, due to his Navajo upbringing, he misunderstood or was unaware of the rights he waived. Rather, he testified that he knowingly agreed to waive his rights in the hope of receiving a lighter sentence or other benefit in exchange for his cooperation. The Court concludes that counsel's actions in challenging voluntariness based on interrogation techniques and Petitioner's lack of sophistication were well within the parameters of reasonable professional assistance guaranteed by the Sixth Amendment. Given the paucity of evidence suggesting that Petitioner suffered from mental deficiencies or that his Navajo heritage impacted his ability to understand his rights, counsel were not deficient for failing to assert these additional grounds in support of their involuntariness argument. Moreover, Petitioner has not shown a reasonable probability that his statements would have been suppressed had counsel proffered the available mental health and cultural evidence gathered by Dr. Morenz and the mitigation specialist. There is simply no evidence to support the claim that Petitioner's statements were not knowing, intelligent, and voluntary. Thus, the failure to introduce evidence of his alleged deficiencies and Navajo upbringing did not prejudice him. See Shackleford v. Hubbard, 234 F.3d 1072, 1080-81 (9th Cir. 2000).

D. Medical Examiner (Claim F)

Petitioner told FBI agents that "the evidence would probably show or the witnesses would say that he had cut the throat of the young girl twice." (RT 4/30/03 at 2727.) He also admitted that both he and Orsinger took turns dropping large rocks on the girl's head and that Orsinger then used an axe to sever the victims' heads and hands. (Id. at 2727-28.)

After her initial examination of the child's body, the medical examiner, Dr. Jerri McLemore, spoke with one of the FBI agents, who asked her to look for any cut marks on the child's neck. (RT 5/6/03 at 3267.) A second examination revealed a small incise wound that was partially obscured by the post-mortem decapitation. (Id. at 3267-68.) Although Dr. McLemore made this discovery, the agent wrote in his report that she had attributed the finding to a forensic anthropologist. (Id.) Relying on the agent's report and having not interviewed Dr. McLemore before trial, defense counsel moved in limine to preclude her from testifying about a wound she had not observed. It was only then that defense counsel learned through voir dire of Dr. McLemore that the forensic anthropologist referenced in the agent's report had consulted with Dr. McLemore only about the bones in the victim's neck and hands and that it was McLemore who had discovered the soft tissue neck injury. (Id. at 3268.)

Dr. McLemore ultimately testified that the child died as a result of multiple blunt force injuries to the head. (RT 5/6/03 at 3340-48.) She could not assess the depth of the incised neck wound but described it as being consistent with having a sharp object drawn across the skin. (Id. at 3322, 3337-39, 3353.) According to Petitioner, however, McLemore listed "neck injuries" in the "cause of death" section of her autopsy report. (Doc. 30, Ex. 139.)*fn7

Petitioner argues that counsel were ineffective for failing to interview Dr. McLemore before trial and thus were unprepared to "challenge the ambiguity in her testimony and contradictory autopsy report." (Doc. 30 at 133-34.) He alleges that counsel missed an opportunity to infer bias "in McLemore's over-inclusiveness of neck wounds as a contributing cause of death," and asserts that jurors with reasonable doubt whether Petitioner hit the child's head with a rock were left to speculate whether she could have died from the knife wounds he had inflicted. (Id.) He also faults counsel for relying on the FBI agent's report which erroneously credited a forensic anthropologist with discovery of the neck wound. (Id. at 134.)

Contrary to Petitioner's assertion, the Government did not argue or suggest to the jury that the child died as a result of the incised neck wound. Rather, this evidence served only to corroborate Petitioner's own statement that he had cut her throat before he and Orsinger dropped rocks on her head. In addition, Dr. McLemore's autopsy report was not admitted into evidence, so the jury was unaware of any "ambiguity" or "conflict" from her identifying without specificity "neck injuries" in the "cause of death" section of her report. (See CR Doc. 322 (Exhibit Lists).)

In his deposition, defense counsel Williams stated that there was no question concerning the cause of the child's death and acknowledged that he was "comfortable" with the information he had concerning Dr. McLemore's anticipated testimony. (Doc. 49, Ex. 1 at 40-41.) He did not recall why he did not interview her before trial, but did not believe she had anything to contribute to the defense's theory of the case. (Id. at 42.) Williams further explained that given the gruesomeness of the medical examiner's testimony and photographs, he wanted to minimize her time on the stand. (Id.) Sears also did not recall why they chose not to interview McLemore, except to say that the defense theme "was aimed at Johnny Orsinger did it as opposed to how these people died. I came away with the conclusion that there was very little question about how they died, particularly when their heads were cut off." (Doc. 49, Ex. 3 at 55.) He was also "convinced" that McLemore was not going to say that Petitioner "inflicted some particular injury;" rather, her testimony would be limited to the injuries sustained by the victims. (Id. at 57.) Thus, the decision not to interview her before trial "probably had to do with what we thought was our ability to make the points we wanted to make on cross-examination simply from [her] report." (Id. at 56.)

It is evident from this record that counsel's decision not to interview Dr. McLemore fell within the wide range of reasonable professional assistance. There was no dispute as to the cause of death -- blunt force head trauma; thus, Dr. McLemore's credibility on this point was not at issue. In addition, there was no dispute that the young girl had an incised neck wound. Admittedly, a pretrial interview with the medical examiner would have corrected defense counsel's erroneous belief that it was an unqualified forensic anthropologist who had made the discovery. However, Petitioner does not challenge that the wound existed, and it was the fact of the wound (not the circumstances of its discovery) that was most damaging to the defense case because it corroborated Petitioner's statement that he had cut the girl's throat. Therefore, Petitioner cannot establish prejudice from counsel's failure to interview the medical examiner before trial.

E. DNA Evidence (Claim G)

On appeal, Petitioner challenged the admission of "confusing, misleading, and irrelevant DNA testimony" from the Government's expert, Benita Bock. Mitchell, 502 F.3d at 969. The Ninth Circuit considered "the coherence of the expert's explanation of what constituted a 'match,' an 'exclusion,' and a 'cannot exclude'" and determined that admission of her testimony did not constitute plain error:

According to the government's expert, a "match" exists when the person possesses all 14 of the "alleles" (DNA sequence segments) taken from a sample at different "loci" (positions on a chromosome), but the person is "excluded" when he possesses none of the alleles taken from the sample. Mitchell's complaint centers on confusion about what it meant that a person "could not be excluded." Undoubtedly the expert's explanation was not a model of clarity.She basically said it meant that alleles of more than one person are present in the sample, yet never clearly articulated what exactly the fact that a person cannot be excluded from a sample says about the probability that the person's DNA is present in the sample, or how likely it would be that a person would possess any given number of alleles in a mixture and yet still not have contributed the DNA.

Mitchell suggests that "cannot exclude" is the very definition of non-probative. Thus, he submits, evidence beyond that matching Slim's blood to the truck and knives found in the Nakai house, and matching Doe's blood to the rocks, should not have been admitted because it told the jury nothing. We do not agree; the expert's testimony indicates that a "cannot exclude" finding can tell a lot, and can increase the probability that the person's DNA is present, depending on the number of loci at which the person cannot be excluded.

Apart from the evidence that Mitchell concedes was properly admitted, the jury was told that there was a mixture of at least three persons' DNA on the black butterfly knife from which the expert concluded that Mitchell and Jakegory could not be excluded at all 14 loci, Slim could not be excluded at 13 of the 14, and Orsinger's father and Gregory Nakai also could not be excluded; that there was a mixture of at least two people on the chrome knife, and Slim matched the major component at all 14 loci, which would be expected to occur in 1/650 billion Navajos; that Mitchell could not be excluded at 12 of 14 loci on Slim's cell phone; that Mitchell could not be excluded from a Halloween mask because he had some of the alleles found, but alleles he could not have produced were also present; and that Mitchell could not be excluded as a contributor at all six loci that could be tested on a glove buried with the body parts. The jury likely understood from this evidence that DNA linked Mitchell to the black knife and Slim's cell phone, and somewhat linked him to the mask and glove. It definitely connected Slim's blood to the chrome knife found in Mitchell's pants. In sum, Mitchell has shown no plain error.

Id. at 969-70.

In these proceedings, Petitioner contends that defense counsel's handling of the DNA evidence was constitutionally deficient because they failed to elicit an explanation of the relevance of statistical probability analysis from either Bock or a defense expert. As a result, the jury "had to speculate whether a given set of statistics applied equally to all samples in evidence" even though not all of the DNA profiles matched at all 14 loci. (Doc. 30 at 138, 140.) He further asserts that counsel asked Bock leading questions that improperly identified either Petitioner or one of the victims as a source of the DNA found on crime scene evidence and failed to challenge Bock's and the prosecutor's repeated references to a DNA "match" with either the victims or Petitioner. (Id. at 141-42.) Finally, he alleges based on habeas counsel's review of the trial file that the Government provided the defense with test results for only four of the 11 samples introduced at trial, thus inhibiting their ability to review the testing for accuracy and to cross-examine Bock, and criticizes counsel's failure to obtain independent testing of the samples.*fn8 (Id. at 144.)

In their depositions, Williams and Sears testified that Petitioner's statements obviated any defense based on his not being present. (Doc. 49, Ex. 1 at 31, 89; Doc. 49, Ex. 3 at 26-27.) Consequently, counsel believed the most we could say on behalf of Mr. Mitchell was that, although he was there, the horrible behavior in this case was instigated by and almost entirely carried out by Johnny Orsinger and that Mr. Mitchell's presence there seemed to have somehow been part of a plan to ride herd on Johnny Orsinger to keep him from doing what he ultimately did, that the plan as we came to understand it was simply to get a truck to use in [the trading post] robbery and not to kill people in the course of doing that. (Doc. 49, Ex. 3 at 44.) In his statements Petitioner also admitted stabbing Slim a number of times, taking the victims into the mountains, and being there when the child was murdered. In addition, blood on the chrome knife found in Petitioner's pants matched Slim's DNA at all 14 loci. Thus, counsel did not think "it was plausible or possible under the circumstances to say that Mr. Mitchell had no role in the murders" and it made no sense to attack the DNA evidence because the idea that we would somehow be suggesting to the jury that Mr. Mitchell wasn't there or that he was sitting quietly while Mr. Orsinger committed all these crimes, there was just too much evidence putting Mr. Mitchell in contact with the knives and putting Mr. Mitchell at the stabbing, at the carjacking, and at the subsequent mutilation of the bodies........ [T]he DNA evidence in this case was not likely to produce an argument that was completely exculpatory to Mr. Mitchell, that it was not -- that it was simply part of the Government's evidence against Mr. Mitchell, that their case was not based on the DNA evidence completely. So I can't -- I can't say for you that the DNA evidence was contradictory to the defense that we put on at trial. We were simply trying to demonstrate to the jury that Mr. Orsinger was the person with this prior behavior. Mr. Orsinger was the person that inflicted the majority of the wounds. Mr. Orsinger was the wild card in this transaction.

It was not, in our judgment, appropriate or productive for us to argue that Mr. Mitchell either wasn't there or didn't handle the weapons or didn't participate in the [trading post] robbery. (Doc. 49, Ex. 3 at 45-46; see also Doc. 49, Ex. 1 at 45, 89.) Because Petitioner's case did not hinge on the DNA evidence, counsel were not particularly focused or concerned with the possibility Bock would somehow overstate the results of her investigation. (Doc. 49, Ex. 3 at 48.) Counsel also recalled no problems with disclosure concerning DNA test results. (Doc. 49, Ex. 1 at 90; Doc. 49, Ex. 3 at 57.)

The record clearly establishes that counsel made a strategic choice not to confront the DNA evidence, which was hardly the linchpin of the Government's case. Petitioner's "disagreement with trial counsel's tactical decision cannot form the basis for a claim of ineffective assistance of counsel." Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). Moreover, Petitioner has not shown that retention of a defense DNA expert, retesting of the samples, or more extensive cross-examination of Bock would likely have resulted in either the development of exculpatory evidence or the exclusion of the Government's evidence. See Leal v. Dretke, 428 F.3d 543, 549 (5th Cir. 2005). Rather, he only speculates that such steps would have been helpful. "Such speculation, however, is insufficient to establish prejudice." Wildman, 261 F.3d at 839.

F. Jury Selection (Claim H)

Petitioner contends that trial counsel's representation was deficient because they failed to challenge or appropriately question Venirepersons 55, 59, and 83, and failed to adequately challenge seated Jurors 43 and 48 as well as Alternate Juror 51. (Doc. 30 at 149.) He further argues that counsel made "almost" no attempt to rehabilitate any juror who expressed opposition to capital punishment. (Id. at 151-53.) Finally, he alleges that appellate counsel was ineffective for not arguing on appeal that this Court had improperly excused Native American venirepersons due to their alleged opposition to the death penalty and the fact that Navajo was their first language. (Id. at 154.) The Court finds each of these allegations meritless.

1. Venirepersons 55, 59, and 83

"The conduct of voir dire 'will in most instances involve the exercise of a judgment which should be left to competent defense counsel.'" Hovey v. Ayers, 458 F.3d 892, 910 (9th Cir. 2006) (citing Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980)). Consequently, counsel are accorded particular deference when conducting voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). Their actions are considered to be matters of trial strategy, and a "strategic decision cannot be the basis for a claim of ineffectiveness assistance unless counsel's decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness." Id.

With respect to venirepersons 55, 59, and 83, Petitioner offers only conclusory allegations of deficient performance unsupported by legal argument. These "fall far short of stating a valid claim of constitutional violation." Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995). Moreover, none of these individuals sat as jurors in this case. Thus, Petitioner cannot demonstrate prejudice from counsel's failure to challenge them because "the Supreme Court has made clear that a court's failure to strike for cause a biased veniremember violates neither the Sixth Amendment guarantee of an impartial jury, nor the Fifth Amendment right to due process when the biased veniremember did not sit on the jury." Mitchell, 502 F.3d at 954 (citations omitted).

2. Jurors 43, 48, and 51

Petitioner argues that counsel should have challenged for cause or exercised a peremptory strike against these jurors because 43 believed that life without the possibility of parole was a more severe sentence than death (RT 4/11/03 at 1333), 48 felt the death penalty was appropriate when "[t]here was no regard at all for human life" (RT 4/15/03 at 1502), and 51 gave contradictory answers about whether, if Petitioner was convicted, he would go into the penalty phase thinking that Petitioner deserved to die (RT 4/23/03 at 2048-50). Petitioner again fails to provide any substantive legal argument to demonstrate counsel's deficiencies with regard to these jurors. Moreover, the Court concludes that counsel made a reasonable strategic decision not to challenge the jurors. Juror 43 stated unequivocally on more than one occasion that he would keep an open mind and would wait to hear all of the evidence and instructions before deciding on an appropriate sentence; he also stated that he had no moral, religious, or personal beliefs that would prevent him from imposing either the death penalty or life imprisonment. (RT 4/11/03 at 1333-35.) Juror 48 similarly claimed she had no beliefs that would interfere with her ability to impose sentence and that she could imagine herself voting for a punishment other than death if Petitioner were convicted. (RT 4/15/03 at 1492-93, ...


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