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Clabourne v. Ryan

United States Court of Appeals, Ninth Circuit

March 5, 2014

SCOTT D. CLABOURNE, Petitioner-Appellant,
v.
CHARLES L. RYAN, Respondent-Appellee

Argued and Submitted December 4, 2012, Pasadena, California

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Appeal from the United States District Courtfor the District of Arizona. Raner C. Collins, District Judge, Presiding. D.C. No. 4:03-cv-00542-RCC.

S. Jonathan Young, Williamson & Young, PC, Tucson, Arizona, for Petitioner-Appellant.

Jeffrey A. Zick (argued), Office of the Attorney General, Phoenix, Arizona; Kent Cattani and Amy Pignatella Cain, Office of the Attorney General, Tucson, Arizona, for Respondent-Appellee.

Before: Marsha S. Berzon, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

OPINION

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CLIFTON, Circuit Judge.

Petitioner Scott Clabourne was convicted of murder and was sentenced to death in 1982. His first petition for federal habeas relief was denied by the district court as to his conviction but was granted as to the capital sentence. That decision was affirmed by our court in Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995). Clabourne was resentenced in state court in 1997, and he was again sentenced to death. His petition for federal habeas relief from that sentence was denied by the district court, and he appeals that denial to this court.

The district court certified one issue for appeal, based on Clabourne's argument that the Arizona Supreme Court refused to consider mitigation evidence contrary to Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), specifically evidence regarding his mental illness. We affirm the district court's denial of this claim because the Arizona Supreme Court did in fact consider, and gave weight to, Clabourne's mental condition.

Clabourne asks us to issue a certificate of appealability for other claims. After consideration, we decline to certify most of those claims, as they lack merit, even measured by the low standard for issuing a certificate of appealability under 28 U.S.C. § 2253.

We do issue a certificate of appealability as to two additional claims. Both allege ineffective assistance of counsel at the 1997 resentencing. The district court denied habeas relief as to those claims because they had been procedurally defaulted due to Clabourne's failure to present them properly to the state court. Subsequent to the district court's order, the Supreme Court in Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), opened a narrow path to excuse procedural default in certain circumstances. In light of Martinez, we vacate the district court's denial of habeas relief as to one of Clabourne's ineffective assistance claims: the claim based on the failure of his counsel at resentencing to object to the court's consideration of a confession Clabourne had given to the police in 1982. We remand that claim to the district court for further proceedings. As to the other claim, however, regarding the alleged failure of resentencing counsel to submit additional psychological evidence, we affirm the denial of habeas relief.

In sum, we affirm the denial of habeas relief as to all but one claim. On that claim, we vacate the denial of habeas relief and remand for further proceedings.

I. Background

We previously described the facts of this case in Clabourne, 64 F.3d at 1375-77, which led to Clabourne's resentencing. They have not changed. We will briefly summarize those facts and add the subsequent history that is pertinent to Clabourne's current claims.

The victim, a 22 year old student at the University of Arizona, was murdered in September 1980. That night, she left the Green Dolphin bar in Tucson with Clabourne,

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Larry Langston, and Edward Carrico. The next morning, her body was found naked and wrapped in a sheet, lying in a dry river bed. She had been severely beaten, raped, strangled, and stabbed in the chest.

Her killers remained unknown for almost a year. A tipster then reported to the Tucson police that her boyfriend, Scott Clabourne, had on several occasions admitted that he had been involved in a murder. When the tipster came forward, Clabourne was already in custody on unrelated burglary charges, for which he was represented by counsel and had filed a written invocation of his right to remain silent or have an attorney present for questioning.

Detectives interviewed Clabourne at the Pima County Jail. Clabourne gave a detailed confession. Clabourne, Langston, and Carrico convinced the victim to leave the bar with them and took her to Langston's friend's house. There, they forced her to remove all of her clothes and to serve them drinks. Then they repeatedly raped her before Clabourne strangled her with a bandana and stabbed her.

Clabourne was charged with first degree murder, sexual assault, and kidnapping. The court found Clabourne competent to stand trial. He was tried alone and was the only one of the three offenders to go to trial: Langston pleaded guilty to first degree murder, and Carrico pleaded guilty to hindering the prosecution.

Clabourne's confession was an important part of the case against him, but it was not the only evidence. In addition to his taped confession to the detectives, Clabourne had also confessed his involvement in the rape and murder to several other people, and several witnesses testified to incriminating statements made by him. Clabourne confessed to a prison guard that he and a friend had sex with a girl and then killed her. Another prison guard overheard Clabourne say to a fellow inmate, " Yeah, I raped her. She didn't want it but I know she liked it." Prosecutors corroborated Clabourne's confession with additional evidence. A witness identified Clabourne as one of the men who left the Green Dolphin with the victim. Clabourne's girlfriend testified that he had told her about strangling a girl and that the bandana used to strangle the victim was similar to one that belonged to Clabourne.

Clabourne called only one witness in his defense, Dr. Sanford Berlin, a psychiatrist. Dr. Berlin had treated Clabourne at the University of Arizona Medical Center several years earlier. But Clabourne's trial counsel did not contact Dr. Berlin until the day of trial, so he had no opportunity to update his observations and little opportunity to prepare to testify. Not surprisingly, under those circumstances, his testimony was of little help to Clabourne's defense. On the subject of Clabourne's mental condition, the State called two psychiatrists, Dr. Gelardin and Dr. LaWall, who testified that Clabourne was legally sane at the time of the murder.

The jury returned a unanimous guilty verdict. Clabourne was sentenced to death, and his capital sentence was affirmed by the Arizona Supreme Court. He exhausted his state post-conviction remedies on his conviction and his original sentence, but he failed to obtain relief.

Clabourne then sought federal habeas relief. In his September 1993 federal habeas proceeding, Clabourne presented evidence in support of his claim that he received ineffective assistance of counsel at his initial trial and sentencing.

Doctors LaWall, Gelardin, and Berlin all testified again at the federal evidentiary hearing on Clabourne's first petition for a writ of habeas corpus. In contrast to the incomplete records the doctors received

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prior to trial, before the evidentiary hearing they received records of Clabourne's full medical history regarding his mental health issues. Their testimony changed considerably, to Clabourne's benefit.

Dr. Berlin testified that Clabourne suffered from some form of schizophrenia. Dr. Gelardin testified that, in light of Clabourne's entire mental health record, which had not been provided to him at the time of trial, Clabourne likely suffered from schizophrenia. He testified that Clabourne had a childlike way of responding to the world and had grandiose thought processes that made him prone to manipulation. Dr. LaWall similarly supplemented his testimony at trial with opinions favorable to Clabourne.

The district court granted Clabourne habeas relief on the grounds that Clabourne received ineffective assistance of counsel at sentencing. It held that trial counsel was ineffective because he failed to obtain medical records that supported Clabourne's claims that he suffered from mental illness and because he failed to properly prepare Dr. Berlin or any expert witness in support of mitigation. Clabourne, 64 F.3d at 1387 (affirming the district court's ruling that Clabourne's trial counsel's performance at sentencing " amounted in every respect to no representation at all" ) (internal quotations, citation, and alteration omitted). The district court granted Clabourne's petition for a writ of habeas corpus as to the capital sentence phase of Clabourne's trial, and this court affirmed. Id.

Clabourne was resentenced by the state court in 1997. A different judge from outside of Pima County presided over the proceedings. The same counsel who had successfully represented Clabourne in the federal habeas proceedings represented him at resentencing. Clabourne's attorney submitted to the resentencing court the entire record that was created in the 1993 federal habeas proceedings, including the evidence regarding Clabourne's mental condition. The resentencing court also considered the state trial, sentencing, and appellate records.

The resentencing court found that the State proved an aggravating circumstance under Ariz. Rev. Stat. § 13-703(F)(6), renumbered at 13-751(F)(6), namely that Clabourne committed the offense in an especially heinous, cruel, or depraved manner. The offense was committed in a cruel manner, the court held, because the victim consciously suffered beyond the norm experienced by other victims of first-degree murder. Although the cruelty finding was sufficient to establish the (F)(6) aggravating factor, the court also found that Clabourne committed the offense with an especially heinous or depraved state of mind because the facts established that Clabourne showed an indifference to the murder of the victim and a callous indifference to her life.

The resentencing court held that Clabourne failed to establish any statutory mitigating factors, but it found several nonstatutory mitigating factors. The resentencing court found to be mitigating that Clabourne " has a passive personality, is impulsive, and is easily manipulated by others." It held, however, that the mitigating evidence did not outweigh the aggravating circumstances of the crime and sentenced Clabourne to death. Clabourne appealed.

The Arizona Supreme Court conducted an independent review of Clabourne's capital sentence. State v. Clabourne, 194 Ariz. 379, 983 P.2d 748, 753 (Ariz. 1999) (en banc) (hereafter " Az Clabourne " ). It found that the murder was especially cruel because of the pain and distress visited upon the victim. Id. It gave Clabourne's mental illness some nonstatutory mitigating weight but ultimately held that the mitigating circumstances

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were insufficient to warrant leniency. Id. at 753-57. It affirmed Clabourne's death ...


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