Gary T. Lowenthal (argued), Santa Fe, New Mexico; Thomas James Phalen, Phoenix, Arizona, for Petitioner-Appellant.
Kent Ernest Cattani (argued), Chief Counsel, Arizona Attorney General's Office, Phoenix, Arizona; Amy Pignatella Cain and Lacey Stover Gard, Office of the Arizona Attorney General's Office, Tucson, Arizona, for Respondent-Appellee.
On Remand from the United States Supreme Court.
Before: WILLIAM A. FLETCHER, MARSHA S. BERZON, and MILAN D. SMITH, JR., Circuit Judges.
OPINION ON REMAND
W. FLETCHER, Circuit Judge:
In James v. Ryan ( James II ), 679 F.3d 780 (9th Cir.2012), we granted Steven James habeas corpus relief from his death sentence, holding that his trial counsel had provided ineffective assistance at the penalty phase. The United States Supreme Court vacated that decision and remanded for us to consider whether Johnson v. Williams,
__ U.S. __, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013), compels a different result. Ryan v. James,
__ U.S. __, 133 S.Ct. 1579, 185 L.Ed.2d 572 (2013). We conclude that it does not.
A. State Proceedings
An Arizona jury convicted James of first-degree murder and kidnapping for the 1981 killing of Juan Maya. James II, 679 F.3d at 786. James II contains a thorough recitation of the facts and procedural history. Id. at 785-801. We provide only a brief summary here. James, Lawrence Libberton, and Martin Norton " severely beat Maya, drove him to an isolated desert area, killed him by shooting him and striking him with rocks, and threw his body down an abandoned mine shaft." Id. at 785. Finding that the murder was " ‘ especially heinous, cruel, or depraved,’ " the trial court sentenced James to death. Id. at 798-99. The Arizona Supreme Court affirmed. Id. at 799.
In his first state petition for Postconviction Relief (" PCR" ), James argued that his trial attorney provided ineffective assistance of counsel (" IAC" ) at the penalty phase " by failing adequately to investigate and present" mitigation evidence. Id. The Maricopa County Superior Court dismissed the claim, holding that James had been required under Arizona law to raise his penalty-phase IAC claim on direct appeal. Because he had not done so, his IAC claim was procedurally barred. Id. The Arizona Supreme Court denied review. Id.
In his second state PCR petition, James alleged IAC by his trial, appellate, and first PCR counsel. The Maricopa County Superior Court held that it was " ‘ precluded from granting relief’ " because James had sought to raise his penalty-phase IAC claim in his first PCR proceeding, and that claim had been held precluded in that earlier proceeding. Id. The Arizona Supreme Court denied review. Id.
In his third state PCR petition, James raised a number of claims, including his penalty-phase IAC claim. He also raised several guilt-phase claims, including (1) that the State failed to disclose an oral plea agreement with Norton, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and (2) that the State failed to correct Norton's false testimony denying the existence of the plea agreement, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). James II, 679 F.3d at 786, 800. The Maricopa County Superior Court denied James's Brady / Giglio and Napue claims on their merits. Id. As the first and second PCR courts had done, the
third PCR court held that James's IAC claim was procedurally barred because James could have raised it on direct appeal. Id. In the alternative, the court held that the claim was procedurally barred because James had " ‘ waived any such [IAC] argument by failing to cite in ...