Argued and Submitted En Banc June 24, 2013—Seattle, Washington
Appeal from the United States District Court for the District of Arizona D.C. No. CV-01-757-PHX-NVW, Neil V. Wake, District Judge, Presiding
Robin C. Konrad (briefed and argued) and Dale A. Baich, Assistant Federal Public Defenders, Federal Public Defender's Office, Phoenix, Arizona, for Petitioner-Appellant.
John P. Todd, Assistant Attorney General, Capital Litigation Section, Arizona Attorney General's Office, Phoenix, Arizona, for Respondent-Appellee.
Before: Alex Kozinski, Chief Judge, and Harry Pregerson, Kim McLane Wardlaw, Marsha S. Berzon, Jay S. Bybee, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia, Morgan Christen and Paul J. Watford, Circuit Judges.
N.R. Smith, Circuit Judge, delivered the opinion of the Court, which is joined in full by Judges Ikuta and Watford. Chief Judge Kozinski, Judge Bybee, and Judge Callahan join Parts I and II. Judges Pregerson, Wardlaw, Berzon, Murguia, and Christen join Part III.
Habeas Corpus/Death Penalty
The en banc court affirmed in part and vacated in part the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for felony murder and conspiracy to commit armed robbery.
In Parts I and II of the opinion, the en banc court held that, applying Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), the Arizona Supreme Court did not unreasonably conclude that petitioner Dickens was eligible for the death sentence because he was a major participant in the victims' robbery/murder and acted with reckless indifference to human life. The majority also agreed that the state court's decision was not based on an unreasonable determination of fact.
In Part III of the opinion, the en banc court held that Dickens's claim of ineffective assistance of counsel was procedurally defaulted and should be remanded to allow the district court to evaluate whether Dickens can show cause and prejudice under the Supreme Court's intervening decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). The majority also provided guidance to the district court by explaining that:
(1) Cullen v. Pinholster, 131 S.Ct. 1388 (2011), does not bar the federal district court from considering the procedurally barred ineffective assistance claim because it was not previously adjudicated on the merits by the state courts;
(2) Dickens's other, previously adjudicated ineffective assistance claims did not foreclose the procedurally barred claim; and (3) 28 U.S.C. § 2254(e)(2) does not bar an evidentiary hearing on remand for Dickens to show cause and prejudice to overcome the procedural bar.
Chief Judge Kozinski, joined by Judges Bybee and Callahan, concurred in Parts I and II. He wrote separately because he believes the Arizona Supreme Court's application of Enmund and Tison was not just reasonable, but entirely correct.
Judge Watford concurred, except to the extent that the majority suggested that the state court correctly applied Tison and Enmund to the facts of Dickens's case. He agreed that the state court's application of those precedents was not unreasonable, but under an independent evaluation of those cases he would have held that the Eighth Amendment bars Dickens's execution.
Judge Callahan, joined by Chief Judge Kozinski and Judge Bybee, concurred in Parts I and II of the majority opinion and dissented from Part III. She explained that there are three strikes against Dickens and he should be out of court: (1) Dickens is not eligible for the narrow exception to the exhaustion requirement under Martinez because the state court rejected his claim on the merits; (2) Dickens's specific allegations of organic brain damage and Fetal Alcohol Syndrome do not amount to a new claim of ineffective assistance regarding mitigating evidence; and (3) a review of counsel's performance on the merits would result in the conclusion that counsel adequately presented mitigating evidence and any failings were not prejudicial.
Judge Christen, joined by Judges Pregerson, Wardlaw, Berzon and Murguia, dissented from Parts I and II of the majority opinion and concurred in Part III. She dissented because imposing the death penalty in this case is an unreasonable application of clearly established law as articulated in Enmund and Tison, and at least two unreasonable findings of fact were critical to the state court's decision. She would grant relief and decline to reach Dickens's Martinez argument. Because the majority did reach the Martinez issue, Judge Christen joined in the judgment to vacate the district court's ruling and remand for consideration of the issue in light of Martinez.
N.R. SMITH, Circuit Judge
Arizona state prisoner Gregory Scott Dickens appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We affirm the district court's conclusion that (1) the Arizona Supreme Court did not unreasonably apply Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), to the facts of this case and (2) the Arizona Supreme Court did not base its decision on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). However, we reverse the district court's denial of one of Dickens's ineffective assistance of counsel claims. While we agree that Dickens defaulted on this claim by failing to fairly present the claim to the Arizona courts, we remand to allow the district court to reassess whether Dickens can establish cause and prejudice to excuse the procedural default under Martinez v. Ryan, 132 S.Ct. 1309 (2012).
In January 1990, Dickens became acquainted with then fourteen-year-old Travis Amaral. Dickens met Amaral while working as a counselor at Oak Grove Institute in Temecula, California. Oak Grove is a placement center for violent juveniles where Amaral lived at the time. While working with Amaral, Dickens learned that he was a "high risk" patient with a "violent and explosive temper." Dickens also discovered that Amaral battered a nurse and frequently bragged about carrying guns and being involved in several murders. In March 1990, Dickens quit working at Oak Grove, but continued his friendship with Amaral.
In early September 1991, Dickens moved to Yuma, Arizona. A few days after his move, Amaral contacted Dickens and explained that he was running away from home. Dickens purchased a bus ticket for Amaral to travel to Yuma. Amaral arrived in Yuma on September 8, 1991. The two then spent the next several days recreating near the Colorado River. Dickens showed Amaral a .38-caliber revolver he had recently acquired and, at some point during their time together, Amaral attempted to intimidate Dickens by pointing the revolver at Dickens's head.
Dickens paid for Amaral's food and transportation during his visit to Yuma. But Dickens was running low on cash. On September 10, 1991, Dickens and Amaral discussed "ways to get more money, " while eating dinner at a Hardee's restaurant. Dickens suggested they plan a robbery. They flipped a coin to decide who would conduct the first robbery. Amaral won. Dickens then gave Amaral a choice of several locations to commit the robbery. His options included a convenience store and a highway rest stop. Amaral selected the rest stop since it was "out of the way, " less busy, and "easier."
Dickens and Amaral left the restaurant and drove to a rest area on the eastbound side of Interstate 8, east of Yuma. Dickens removed his .38-caliber revolver from the glove compartment and placed it on a seat in the vehicle. At some point while waiting at the rest stop, Amaral again pointed the revolver at Dickens's head to intimidate him. After waiting at the rest area for approximately three hours, Dickens and Amaral saw Bryan and Laura Bernstein enter the rest area for westbound traffic on the opposite side of the freeway.Dickens nodded his head and either handed Amaral the handgun or watched him remove it from the seat. They agreed that, once Amaral robbed the Bernsteins, he would run down the westbound ramp of the rest area where Dickens would pick him up.
Dickens watched from his truck on the opposite side of the highway as Amaral crossed the interstate, approached the Bernsteins, and asked if they had the time. Laura responded, "9:17 [p.m.]." Amaral then pointed the gun at Bryan and demanded his wallet. Once Bryan surrendered his wallet, Amaral asked Laura for her wallet, but she did not have one. Amaral then ordered the Bernsteins to walk past their car and turn around. From the opposite side of the highway, Dickens observed Amaral moving the Bernsteins across the beams of light from their headlamps. Amaral asked if they were ready to die and then shot Laura in the head. Dickens saw the bright flash of the gun as Amaral shot Laura. Laura fell to the ground and Bryan crouched down over her. Amaral then recocked the revolver, pointed it at Bryan, and shot him in the head.
After observing the robbery and shootings, Dickens drove across the median and through the rest area. No evidence suggests Dickens stopped to aid the Bernsteins, called for emergency medical assistance, or otherwise notified the authorities. Dickens then picked up Amaral on the westbound side of the highway and asked, "Do you have the wallet?" Amaral replied that he did and handed the wallet to Dickens. Dickens searched the wallet and returned it to Amaral. Dickens explained to Amaral that he had driven through the rest area to make sure "everything was taken care of." They then drove to the home of Dickens's brother where Amaral removed cash, traveler's checks, and one credit card from Bryan's wallet. Dickens and Amaral burned the wallet and its remaining contents. They split the cash, Amaral pocketed the credit card and they later destroyed the traveler's checks.
At approximately 9:40 p.m., a deputy sheriff drove into the rest area and found the Bernsteins lying on the ground in front of their vehicle. Laura was dead. Bryan was semiconscious, thrashing around, and moaning in pain. Bryan told the deputy that he had been threatened with a gun, attacked, and thought he had been shot. Bryan died shortly thereafter.
On September 11, the morning following the murders, Amaral unsuccessfully attempted to use Bryan's credit card at a local K-Mart. Dickens and Amaral spent that night at a Motel 6 where Dickens had rented a room. Early the next morning, Dickens drove to Carlsbad, California, and Amaral went back to his mother's house.
Dickens and Amaral met up again in March 1992, and Amaral stayed with Dickens for one or two weeks in a San Diego, California apartment. Amaral's mother reported Amaral as a runaway and gave Dickens's address to the police. The police conducted an investigation into sex abuse charges against Dickens. San Diego police officers eventually arrested Dickens on charges of sexually abusing Amaral (and other boys) and assault with a deadly weapon.During an interview concerning the alleged abuse, Amaral told officers that he and Dickens had been involved in the double homicide in Yuma.
In April 1992, Dickens was indicted for two counts of premeditated first-degree murder, two counts of felony first-degree murder, one count of conspiracy to commit first-degree murder, one count of conspiracy to commit armed robbery, and two counts of armed robbery. After a trial, he was acquitted of premeditated murder and conspiracy to commit murder. However, he was convicted of the felony murders and armed robberies of Bryan and Laura Bernstein and conspiracy to commit armed robbery. The sentencing court found no mitigating factors and thus sentenced Dickens to death on the felony murder counts. The sentencing judge ordered that, if the sentences were ever reduced, then they should be served consecutively. The court also sentenced Dickens to fourteen years' imprisonment on the conspiracy and armed robbery convictions, to be served consecutively to the death sentences.
Dickens applied for post-conviction relief from the trial court but was denied. Dickens then appealed his conviction and sentence to the Arizona Supreme Court. That court affirmed the trial court's denial, noting that "[t]his is not a case of lingering doubt" and that overwhelming evidence supported the conviction and capital sentences. State v. Dickens, 926 P.2d 468, 493 (Ariz. 1996) (in banc).
Dickens subsequently filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 with the U.S. District Court for the District of Arizona. In the federal habeas proceeding, Dickens changed his ineffective assistance of counsel ("IAC") claim to include extensive factual allegations that he suffered from Fetal Alcohol Syndrome ("FAS") and organic brain damage. The district court concluded that Dickens's new claim was procedurally barred and, with regard to his other arguments, denied his petition. Dickens appealed the district court's decision to this court.
A divided panel of our court affirmed the district court's denial of Dickens's Enmund/Tison claim. However, all three judges agreed that the district court's conclusion that Dickens procedurally defaulted his IAC claim should be vacated and remanded to allow the district court to reassess the claim in light of the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). Both parties petitioned for this Court to rehear the case en banc, and a majority of non-recused active judges voted to rehear the case.
STANDARD OF REVIEW
We review de novo the district court's order denying the petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to this court's review of Dickens's claims. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The threshold a defendant must overcome to obtain relief under AEDPA is high. Specifically, to obtain relief under AEDPA Dickens must show that the Arizona Supreme Court's decision was either (1) "contrary to" clearly established federal law as determined by the Supreme Court, (2) "involved an unreasonable application of such law, " or (3) "was based on an unreasonable determination of the facts in light of the record before the state court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (quoting 28 U.S.C. § 2254) (internal quotation marks omitted).
Because the relevant state court determination for a habeas petition is the last reasoned state court decision, we review the Arizona Supreme Court's decision denying Dickens relief. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501 U.S. 797, 804–06 (1991)). "State-court decisions are measured against [the Supreme Court's] precedents as of 'the time the state court renders its decision.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1399 (2011) (quoting Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75–76 (internal quotation marks and citation omitted). "Rather, that application must be objectively unreasonable." Id. at 76 (emphasis added).
Dickens argues that the Arizona Supreme Court unreasonably applied Enmund/Tison when it upheld Dickens's death sentence. Dickens also argues that the Arizona Supreme Court based its decision on an unreasonable determination of the facts. Finally, Dickens claims that his counsel was ineffective at sentencing, because counsel failed to adequately investigate and present certain mitigating evidence.
We reject Dickens's first two arguments and affirm the district court's denial of Dickens's Enmund/Tison claim. However, we reverse the district court's conclusion that Dickens failed to show cause to overcome his procedural default and remand so that the district court can determine whether Dickens can show cause and prejudice under Martinez.
I. The Arizona Supreme Court did not unreasonably apply Enmund/Tison.
The Arizona Supreme Court correctly identified Enmund and Tison as the clearly established federal law governing Dickens's claim. In Enmund, the Supreme Court reversed the death sentence of a defendant convicted under Florida's felony-murder rule. 458 U.S. at 798. In Tison, the Supreme Court affirmed the death sentences of two defendants convicted under Arizona's felony-murder rule. 481 U.S. 137. In distinguishing between the two cases, the Tison Court articulated a two prong standard to determine whether a felony murder defendant is death eligible. For a death sentence to be constitutional under the Eighth Amendment, the state must show the defendant's " major participation in the felony committed,  combined with reckless indifference to human life." 481 U.S. at 158. For the reasons stated below, the Arizona Supreme Court did not unreasonably conclude that Dickens was a major participant in the Bernsteins' robbery/murder and acted with reckless indifference to human life.
A. Major participation
Dickens claims that his participation in the crimes was insufficient to warrant a death sentence, like the defendant in Enmund. Enmund was the driver of the getaway car in an armed robbery in which his accomplices murdered an elderly couple who resisted the robbery. 458 U.S. at 784–86. The Court determined that Enmund "did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder." Id. at 795. The Court noted that "the only evidence of the degree of [Enmund's] participation [was] the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes[, ] . . . waiting to help the robbers escape . . . ." Id. at 786 (internal quotation marks omitted). There was no evidence that Enmund provided the murder weapons, knew of the shooters' violent propensities, planned the underlying crime, or continued to assist the perpetrators after they murdered their victims. Enmund's only participation was that of getaway driver. Id. at 786 n.2.
By contrast in Tison, the defendants helped their father and his cellmate—both convicted murderers—escape from prison, armed them with shotguns, helped flag down and kidnap a family on an isolated road, drove the family to a remote site, and then stood by as their father and his cellmate murdered the four family members. 481 U.S. at 139–41. The Court concluded that the Tison brothers' major participation in the crimes distinguished them from Enmund. Id. at 151–52. The Court noted that the Tison defendants: (1) "actively participated in the events leading to the death by, inter alia, providing the murder weapons and helping abduct the victims"; (2) were "present at the murder site, [and] did nothing to interfere with the murders"; (3) "ma[de] no effort to assist the victims before, during, or after the shooting"; (4) "after the murders . . . continued on the joint venture"; and (5) "could anticipate the use of lethal force" during the commission of their crimes. Id. at 145, 151 (internal quotation marks omitted).
In this case, the Arizona court's application of federal law was not objectively unreasonable. Indeed, Dickens participated in the crimes to nearly the same extent as the Tison defendants. As in Tison, Dickens participated in the events leading up to the death, because he "suggested they plan a robbery, " "[t]he robberies were premeditated, planned, and agreed on by [Dickens] and Amaral, " and "[Dickens] drove Amaral to the scene." Dickens, 926 P.2d at 474, 490. Dickens was present at the murder site and did not interfere with the murders since Dickens "wait[ed] and watch[ed] for approximately three hours" for the victims to arrive and then "[Dickens] waited while Amaral committed the robberies." Id. at 474, 490. Dickens made no effort to assist the victims but rather "picked up Amaral" after the crime "then drove to the home of [his] brother." Id. at 475. Dickens continued the joint venture when he "witnessed the destruction of evidence, and failed to report the crimes." Id. at 490. And finally, Dickens could have anticipated that Amaral would use lethal force since "[Dickens] furnished Amaral with the weapon used in the murders or knew Amaral had the weapon with him for the robberies." Id. In short, Dickens was actively involved in every aspect of the deadly crime—suggesting they undertake the robbery, planning the robbery, staking out the crime scene, selecting the victims, arming Amaral with a handgun,  watching the murders, aiding Amaral's escape, destroying evidence, and helping Amaral evade capture. Dickens was clearly a major participant in the crime.
Nonetheless, Dickens insists his conduct was more akin to the defendant in Enmund than to the defendants in Tison. While we disagree for the reasons stated above, more importantly, Dickens's argument overlooks the deference we owe the Arizona Supreme Court's decision under AEDPA. At the very least, reasonable minds could differ as to whether Dickens's participation level is closer to the defendant in Enmund than the defendants in Tison. See Richter, 131 S.Ct. at 786. Tison does not illuminate the precise line where a defendant's conduct becomes "major participation." Thus, even assuming that Dickens's conduct falls into a "grey area" between Enmund and Tison, we must defer to the Arizona Supreme Court's conclusion. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) ("Because [Supreme Court precedent] give[s] no clear answer to the question presented . . . it cannot be said that the state court unreasonably applied clearly established Federal law." (internal quotation marks and alterations omitted)).
One of Dickens's arguments in particular illustrates AEDPA's effect on his claim. Dickens argues that Enmund and Tison require a defendant's immediate physical presence at the murder scene to qualify for the death penalty. Dickens bases this argument on an arguable distinction between this case and Tison: the Tison brothers were apparently in closer proximity to the killings than Dickens. See 481 U.S. at 141, 144–45. However, nowhere in Enmund or Tison does the Supreme Court clearly establish that "presence" at a murder scene is a mandatory prerequisite for the death penalty. Instead, physical presence is merely one of several factors relevant to the "major participation" prong of the Tison analysis. Id. at 158. The Tison court never stated that one factor was more important than another factor. Rather, it simply concluded that the defendants' actions collectively demonstrate a "high level of participation . . . [that] implicates them in the resulting deaths." Id.
Here, the Arizona Supreme Court considered Dickens's "presence" at the murder scene along with the other relevant factors. See Dickens, 926 P.2d at 490. Its failure to give the presence factor any particular weight relative to any other factor demonstrating Dickens's "high level of participation" in the crimes did not violate clearly established federal law. Thus, we cannot say that the Arizona Supreme Court's decision was objectively unreasonable, regardless of whether Tison is distinguishable from Dickens's case on the "presence" factor.
Furthermore, even if "presence" were the dispositive factor in the "major participant" analysis, Dickens would face an additional AEDPA hurdle. The Supreme Court has never defined "presence" as it pertains to major participation in a capital crime. As a result, the Arizona Supreme Court had only the two contrasting examples of presence in Enmund and Tison to guide its reasoning. In Enmund, where the defendant sat in a car outside the home where two victims were shot to death and neither heard nor observed the murders, the Court concluded that the defendant "was not present when the killing took place." 458 U.S. at 795. However, in Tison, where the defendants stood by as four people were gunned down, the Court determined the defendants were "present" at the murder site. 481 U.S. at 145. The lack of any Supreme Court precedent defining "presence" requires us to give the Arizona Supreme Court some "leeway" in making its determination. See Richter, 131 S.Ct. at 786.
Here, the Arizona Supreme Court suggested that Dickens's presence at the murder scene—combined with his other actions leading up to and following the crimes—qualified him as a major participant. See Dickens, 926 P.2d at 490. The record demonstrates that this was not an unreasonable conclusion. Dickens testified at trial that he watched, as the Tison brothers presumably did, each part of the Bernsteins' murders as they unfolded. Dickens saw the Bernsteins pull into the rest stop. After selecting the Bernsteins as the victims, Dickens nodded his head and watched Amaral walk across the highway with a loaded .38-caliber handgun, knowing Amaral was going to rob the Bernsteins at gunpoint. He was close enough to see Amaral moving the Bernsteins around the front of their car in the path of the illuminated headlamps and to see flashes as Amaral shot the victims in the head. Then, rather than merely acting as the getaway driver, Dickens drove through the rest stop to, in his words, verify that "everything was taken care of" and pick up Amaral. Thus, the Arizona Supreme Court did not unreasonably conclude that Dickens was a major participant in the Bernsteins' robbery and murder.
B. Reckless indifference to human life
The second prong of the Tison analysis requires the felony-murder defendant to exhibit "reckless indifference to human life" sufficient to satisfy Enmund's culpability requirement for capital punishment. 481 U.S. at 158. The Tison Court observed that
some nonintentional murderers may be among the most dangerous and inhumane of all—the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill."
Id. at 157. The Tison court further held that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state" sufficient to warrant capital punishment "when that conduct causes its natural, though also not inevitable, lethal result." Id. at 157–58 (emphasis added).
Applying Tison, the Arizona Supreme Court concluded that Dickens acted with a reckless indifference to human life, because, in addition to the factors demonstrating his major contribution to the crimes, Dickens armed Amaral with the .38-caliber revolver, knowing that "Amaral had a violent and explosive temper, " and "failed to render aid" to the Bernsteins. Dickens, 926 P.2d at 490. Given these facts, the Arizona Supreme Court concluded that Dickens exhibited a reckless indifference to human life.
Dickens argues that this conclusion was unreasonable, because armed robbery is not a crime "known to carry a grave risk of death." However, Dickens cites no U.S. Supreme Court precedent, and we know of none, clearly establishing this principle. Moreover, even if the garden variety armed robbery were not known to carry a grave risk of death, the question here is whether the circumstances of Dickens's crime carried a grave risk of death and caused their "natural, though also not inevitable, lethal result." Tison, 481 U.S. at 158.
The facts support the Arizona Supreme Court's determination that Dickens knew there was a grave risk of death in sending an explosive adolescent with a history of violence to commit armed robbery. From his experience working at the Oak Grove Institute (a treatment center for violent juveniles), Dickens knew that Amaral was a high risk patient with a "violent and explosive temper." Dickens, 926 P.2d at 490. He knew that Amaral had battered a nurse at Oak Grove and had a long history of carrying guns. He knew that Amaral was reckless in his handling of guns since Amaral twice attempted to intimidate Dickens—once at the river and once immediately before the robbery—by pointing the loaded .38-caliber revolver at Dickens's head. He knew that Amaral had bragged about being involved in other murders. Yet even with this knowledge, Dickens proceeded with the robbery. He either furnished Amaral with his .38-caliber revolver or knew Amaral had the gun, and stood by while Amaral left with the gun to rob the Bernsteins on the opposite side of the highway. Like the defendants in Tison, who armed two convicted murderers and helped plan and orchestrate the armed robbery, Dickens "could have foreseen that lethal force might be used" in the course of the robbery. 481 U.S. at 151–52; accord Foster v. Quarterman, 466 F.3d 359, 370–71 (5th Cir. 2006) (denying habeas relief to a death row petitioner because he displayed reckless indifference to human life by driving two armed co-conspirators from victim to victim to commit armed robbery, a criminal activity "known to carry a grave risk of death").
Furthermore, after watching the shootings, Dickens, like the defendants in Tison, chose to "aid [Amaral, ] whom he had placed in the position to kill rather than [aid] their victims." Tison, 481 U.S. at 152; see id. ("These facts not only indicate that the Tison brothers' participation in the crime was anything but minor; they also would clearly support a finding that they both subjectively appreciated that their acts were likely to result in the taking of innocent life."). Dickens helped Amaral flee the scene of the murder, destroy evidence, and evade capture. In light of these facts, we cannot say that the Arizona Supreme Court's determination that Dickens exhibited a reckless indifference to human life rested on an objectively unreasonable application of Enmund and Tison.
II. The Arizona Supreme Court's decision was not based on an unreasonable determination of fact.
To avoid the bar against granting habeas relief imposed by § 2254(d)(2), a defendant must show the state court's conclusion "to be 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(d)(2)). A trial court's findings are presumed sound unless the defendant rebuts the "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Dickens argues that he is entitled to relief because the Arizona court's Enmund/Tison analysis was based on an unreasonable determination of the facts. More specifically, Dickens argues that the state court unreasonably determined that: (1) Amaral was a sufficiently credible witness; (2) Dickens knew Amaral intended to rob or kill the Bernsteins; (3) Dickens knew of Amaral's violent propensities; and (4) Dickens knew one of the Bernsteins might still be alive when he left the rest area.
We reject Dickens's claim arising from Amaral's alleged lack of credibility. To support this claim, Dickens alleges that Amaral made inconsistent statements, Amaral's fellow prisoners gave contradictory testimony, and the jury rejected Amaral's testimony about an alleged walkie-talkie conversation between Dickens and Amaral at the murder scene. Aside from casting doubt on Amaral's credibility—a factor which the state court and jury no doubt considered at trial—these general allegations do little more than attempt to relitigate the jury's factual findings and credit Dickens's testimony (over that of Amaral) that he had no part in the crimes. Because we must "defer to the jury and the [trial] judge regarding Amaral's credibility" unless there is persuasive evidence that any particular determination of fact was unreasonable, Dickens cannot prevail under § 2254(d)(2) by raising a general challenge to Amaral's credibility. Dickens, 926 P.2d at 490; see United States v. Johnson, 229 F.3d 891, 894 (9th Cir. 2000) ("[W]e are powerless to question a jury's assessment of witnesses' credibility . . . ." (internal quotation marks omitted)).
We also reject Dickens's claims arising from the alleged insufficiency of evidence at trial. Ample evidence supported the conclusion that Dickens knew that Amaral intended to rob the Bernsteins. Dickens himself testified that he knew about the robbery. Most significantly, he admitted that he "figured [Amaral] was going to . . . go over there and rob those people, " and that Amaral told him he was going to rob the Bernsteins. Moreover, Amaral testified at length about their common scheme to commit armed robbery. Dickens has not explained why the Arizona courts' reliance on this particular testimony from Amaral was unreasonable. In light of this evidence, the Arizona Supreme Court's determination that Dickens knew about and agreed to the robbery was not unreasonable.
Similarly, the record supports the Arizona courts' determination that Dickens knew about Amaral's violent propensities. Dickens originally met Amaral at the Oak Grove Institute for violent juveniles. Dickens learned, while working at Oak Grove, that Amaral was a "high risk" patient, had battered a nurse, and frequently bragged about carrying guns and committing violent crimes, including murder. He further testified that he had personally seen Amaral carrying guns on several occasions before the September 1991 murders. Lastly, Amaral pointed a .38-caliber revolver at Dickens's head on two separate occasions to intimidate him. One occasion was just prior to the ...