United States District Court, D. Arizona
Sean B. Runningeagle, Petitioner,
Charles L. Ryan, et al., Respondents.
PAUL G. ROSENBLATT, District Judge.
On July 18, 2012, the Ninth Circuit ordered this Court to reconsider, in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012), its procedural default rulings on a number of claims alleging ineffective assistance of counsel at trial and sentencing. (Doc. 139.) The Ninth Circuit directed the Court to (1) determine "whether the ineffective assistance of counsel claims that it previously found procedurally defaulted fall within Martinez "; (2) if so, address those claims on the merits; and (3) afford Petitioner an evidentiary hearing "if it determines one is warranted." ( Id. )
This Court ordered the parties to brief the Martinez issue-that is, whether Petitioner's default of the claims can be excused by the ineffective performance of post-conviction counsel-and the merits of the defaulted claims. (Doc. 140.) The Court also ordered Petitioner to set forth any requests for evidentiary development. ( Id. )
Petitioner's supplemental brief addresses only Claims 1-C, 1-H, and 17. (Doc. 149.) Petitioner argues that his procedural default of these claims should be excused pursuant to Martinez. ( Id. ) He also requests evidentiary development on Claims 1-H and 17. ( Id. )
For the reasons set forth herein, the Court finds that Martinez does not excuse the procedural default of the claims.
Petitioner was convicted of two counts of first-degree murder and sentenced to death for the 1987 murders of Herbert and Jacqueline Williams. The following summary of the crimes is taken from the opinion of the Arizona Supreme Court affirming the convictions and sentences. State v. Runningeagle, 176 Ariz. 59, 61-62, 859 P.2d 169, 171-72 (1993).
In the early morning of December 6, 1987, Petitioner, his cousin Corey Tilden, and their two friends Orva and Milford Antone, were driving around Phoenix. Petitioner wanted parts for his car, so the group stopped at the Davis house, which had a car parked outside. Petitioner, Tilden, and Orva got out of the car, while Milford remained passed out drunk in the back seat. Petitioner used his large hunting knife to remove two carburetors from the Davis car. Orva put them and an air scoop in the trunk of Petitioner's car. Tilden and Petitioner also stole a floor jack and tool box. Orva took a bicycle from the open garage.
Mr. and Mrs. Williams, an elderly couple, lived next door to the Davises. Mr. Williams came out of his house and told the young men to leave or he would call the police. Orva returned to the car, but Petitioner and Tilden approached Mr. Williams. Petitioner concealed his knife by his side. Tilden carried a large flashlight.
Petitioner began to tease and frighten Mr. Williams with the knife. Mr. Williams retreated and told Petitioner to put the knife away. Mrs. Williams then came out of the house and yelled at them. Tilden confronted Mrs. Williams, argued with her, and hit her on the side of the head with the flashlight. Mr. Williams told them to leave his wife alone, and helped her back into the house. Petitioner broke through the Williams' door with a tire iron, and he and Tilden barged in.
The noise awakened a neighbor, who heard Mrs. Williams crying and the words "bring him in" spoken by a tall, young man he saw standing in the Williams carport. The neighbor called 911, but by the time the police arrived, Mr. and Mrs. Williams were dead. Mr. Williams suffered several head injuries and five stab wounds, three of which were fatal. Mrs. Williams also suffered several head injuries, one of which fractured her skull and was possibly fatal, in addition to four stab wounds, three of which were fatal.
The police searched the Williams home. The drawer in which Mrs. Williams stored her jewelry was open and some jewelry was missing. They found an empty purse, blood drops and two bloody shoe print patterns. They discovered Petitioner's palm print on the clothes dryer next to the bodies.
Petitioner discussed the crimes on several occasions before his arrest. He told his girlfriend that he had been in a fight with two people and had hit them "full-force." He showed her his car trunk full of the stolen property. He showed the hood scoop and carburetors to another friend.
When the defendants were arrested, the police found, among other things, the Davis air scoop with Petitioner's prints on it, two carburetors, the tool box, Mrs. Williams' wallet and college pin, a large black flashlight with Tilden's prints on it, and the Davis bicycle with Petitioner's prints on the wheel rim. A Phoenix Police Department criminalist matched Petitioner's shoes with the bloody shoe prints found at the Williams house, and also found that an inked print of Tilden's shoes made a pattern similar to other shoe prints at the house.
Petitioner, Tilden, and Orva Antone were indicted on two counts of first-degree murder, and various burglary counts. Antone pleaded guilty to burglary and testified for the state at the joint trial.
On July 27, 1988, a jury convicted Petitioner of two counts of first-degree murder, two counts of theft, and one count each of first-degree burglary, second-degree burglary, and third-degree burglary. (ROA 51; ME 7/27/88). On February 3, 1989, the trial court sentenced Petitioner to death on the murder convictions. (ROA 290.) That same day, Petitioner filed a Notice of Appeal with the Arizona Supreme Court.
On October 26, 1989, while his direct appeal was pending, Petitioner filed a pro se petition for post-conviction relief (PCR) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, alleging, among other claims, ineffective assistance of counsel. (Doc. 21, Ex. B.) The trial court appointed attorney George Sterling as counsel. (ME 11/12/89.) Sterling moved to withdraw based on Petitioner's allegation of a conflict of interest. (ROA 305.) Petitioner filed a pro se supplement to his PCR petition on December 7, 1989, alleging "ineffective/inefficient and incompetent legal counsel." (Doc. 21, Ex. C; ROA 306.) On March 21, 1990, the trial court appointed attorney John Antieau to replace Sterling. (ME 3/21/90.)
On March 27, 1990, Antieau, noting that the appellate record was not yet complete, moved for a 60-day extension of the deadline for filing supplemental pleadings. (ROA 309.) He filed another request, on April 29, 1990, which the court granted. (Docs. 311, 313.)
On May 8, 1990, the Arizona Supreme Court stayed the appeal and re-vested jurisdiction in the trial court to resolve the merits of the PCR petition. (Ariz.Sup.Ct.R. 19.)
On June 18, 1990, Antieau filed a motion seeking another 60-day extension, to allow him "sufficient time to compete his review of the trial record." (ROA 322.) The court granted the motion. (ROA 327.)
On November 20, 1990, after several additional deadline extensions ( see ROA 331, 334, 337), Antieau filed a second supplemental petition. (ROA 339.) Antieau raised two claims of ineffective assistance of trial counsel: that counsel performed ineffectively by failing to move to sever Petitioner's trial from codefendant Tilden's and that counsel performed ineffectively during closing argument. ( Id. ) On April 19, 1991, the state trial court denied post-conviction relief, finding, with respect to the ineffective assistance claims, that Petitioner had not "presented material issues of fact and a colorable claim.'" (Doc. 21, Ex. F at 2; ROA 349.) The court also noted that the issue of severance was before the Arizona Supreme Court on direct appeal. ( Id. )
Antieau then filed a motion for rehearing, which was also denied. ( Id., Ex's. G, H.; ROA 352, 355.) On July 15, 1991, Antieau filed a petition for review. (ROA 356.) The Arizona Supreme Court accepted review and consolidated Petitioner's PCR claims with his direct appeals claims. Antieau filed his opening appellate brief on August 29, 1991, again raising the two claims of ineffective assistance of counsel. (Doc. 21, Ex. A.)
On April 20, 1993, the Arizona Supreme Court issued its opinion affirming Petitioner's convictions and sentences and denying post-conviction relief. Runningeagle, 176 Ariz. 59, 859 P.2d 169. The court rejected Petitioner's claims of ineffective assistance of trial counsel. Id. at 63, 859 P.2d at 173.
Antieau did not represent Petitioner in the second PCR proceeding. The trial court originally appointed attorney Jess Lorona. (Doc. 21, Ex. I.) After the notice of post-conviction relief was properly issued, however, Petitioner filed a written motion to represent himself, which the trial court granted. ( Id., Ex's. Q, R.) Petitioner then wanted a Texas attorney to represent him. ( Id., Ex. S.) After the trial court denied the request, Petitioner filed a letter requesting to be allowed to proceed pro per. ( Id., Ex's. T, U.) Petitioner failed to timely file a PCR petition, and the trial court granted the State's motion to dismiss. ( Id., Ex's. T, V (Exhibit A), W.)
Petitioner later initiated a third PCR proceeding. Counsel Dennis Jones filed a 220-page PCR petition. ( Id., Ex. X.) The petition raised claims of ineffective assistance of counsel at trial and sentencing. ( Id. at 23-30, 75-80, 97-142). It also alleged that Antieau was ineffective on appeal and in the first PCR proceeding. ( Id. at 195-96.) The state trial court denied the petition. ( Id., Ex. Y.) It found the ineffective assistance claims to be procedurally defaulted pursuant to Rule 32.2(a)(3) of Arizona Rules of Criminal Procedure because they had not been previously raised. ( Id. ) The court alternatively found that that the claims were not colorable. ( Id. ) The Arizona Supreme Court denied a petition for review. ( Id., Ex's. BB, at 3; CC.)
Petitioner filed his amended federal habeas petition on April 15, 1999. (Doc. 1.) The parties first addressed whether the asserted claims were procedurally defaulted. On February 6, 2004, this Court entered an order deciding the procedural status of Petitioner's guilt-phase claims. (Doc. 90.) Among the claims found procedurally defaulted were three of the claims now at issue: 1-C (alleging that trial counsel was ineffective in not requesting second counsel), 1-H (ineffective assistance in not blaming Tilden for the murders), and 15 (alleging that Antieau was ineffective on appeal and in the first PCR proceeding). ( Id. )
On March 10, 2006, this Court filed an order deciding the procedural status of Petitioner's sentencing-phase claims. (Doc. 108.) Among the claims found procedurally defaulted were Claims 17-A (ineffective assistance in not developing and presenting mitigation) and 17-D (ineffective assistance in not obtaining an independent expert for sentencing). ( Id. )
After the parties briefed the merits of the non-defaulted claims and Petitioner's requests for evidentiary development, the Court issued its memorandum decision and order on November 27, 2007, denying relief and dismissing the habeas petition. (Doc. 132.) It also denied Petitioner's requests for evidentiary development. ( Id. at 1, 37-44.) Finally, the Court ruled that Petitioner was not entitled to a certificate of appealability (COA) on any claim. ( Id. at 44.)
The Ninth Circuit granted a COA on five claims: Claims 1-D, 2, 6, 15, and 19. (Ninth Circuit Docket, 15.) Petitioner chose not to present Claim 15 in his opening brief on appeal, but did raise the other four certified claims. ( Id. at 25.) The Ninth Circuit panel heard oral argument on February 10, 2011. ( Id. at 45.)
The panel issued its opinion on July 18, 2012. The majority opinion considered the four claims that Petitioner raised on appeal, found them meritless, and affirmed this Court's judgment denying habeas relief. Runningeagle v. Ryan, 686 F.3d 758, 763 (9th Cir. 2012).
In a separate order issued the same day, the panel, with one dissent, granted Petitioner's motion for a "limited remand" pursuant to Martinez.  (Ninth Circuit Docket, 59.) The order specified 12 claims that this Court had found procedurally defaulted. ( Id. )
Petitioner contends that Antieau performed ineffectively during the first PCR proceedings by failing to raise certain claims that trial counsel performed ineffectively during the guilt and sentencing phases of Petitioner's trial. Petitioner argues that under Martinez Antieau's ineffective performance establishes cause and prejudice for the default of Claims 1-D, 1-H, and 17.
I. APPLICABLE LAW
A. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 674 (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; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam); Cox. v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). 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." Id. at 687-88.
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." Id. at 694.
B. Martinez v. Ryan
Federal review is generally not available for a state prisoner's claims when those claims have been denied pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In such situations, "federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Id . Coleman also held that ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim. Id.
In Martinez, the Court established a "narrow exception" to the rule announced in Coleman. The Court explained that,
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
132 S.Ct. at 1320; see also Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013) (noting that Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of counsel claim if "the claim... was a substantial' claim [and] the cause' consisted of there being no counsel' or only ineffective' counsel during the state collateral review proceeding" (quoting Martinez, 132 S.Ct. at 1320)).
Subsequently, in Trevino, the Supreme Court extended Martinez to apply where a state's procedural rules do not forbid a defendant from raising an ineffective assistance of counsel claim on direct appeal, but make it "highly unlikely that a defendant will have a meaningful opportunity" to raise such a claim. 133 S.Ct. at 1921.
Petitioner argues that Antieau's ineffective performance during the first PCR proceedings excuses Petitioner's default of Claims 1-C, 1-H, and 17. Respondents offer several counter-arguments. First, they contend that Martinez does not apply because "then-existing Arizona law did not bar Runningeagle from raising [ineffective assistance] claims as part of the appeal, and he in fact presented such issues to the Arizona Supreme Court." (Doc. 156 at 9.) Next, Respondents argue that Martinez is inapplicable because both the PCR ineffectiveness allegation and the allegations of trial counsel ineffectiveness in Claims 1-C and 1-H were summarily rejected on the merits in state court. ( Id. at 9-10.) Respondents also argue that Antieau's performance on direct appeal and during the first PCR proceedings was not ineffective under Strickland. ( Id. at 11-12.) Finally, Respondents contend that Petitioner's underlying claims of ineffective assistance of trial counsel are not substantial under Martinez. ( Id. at 13.) The Court addresses these arguments as follows.
A. Martinez does not apply
As the Supreme Court noted, at the time the petitioner in Martinez filed his direct appeal, in 2002, Arizona did not permit a defendant to allege ineffective assistance of trial counsel on direct appeal. Previously, however, Arizona law permitted appellants to raise ineffectiveness claims on direct appeal, develop those claims by staying the appeal pending an evidentiary hearing in the trial court, and then consolidate review of the post-conviction hearing with the direct appeal.
In State v. Zuck, 134 Ariz. 509, 515, 658 P.2d 162, 168 (1982), the appellant raised an ineffectiveness claim on appeal and the Arizona Supreme Court remanded to the lower court for a hearing on the issue. The court remarked that "when the issue of competency of trial counsel has been raised, we have always resolved the matter with whatever was before us in the record and without giving trial counsel an opportunity to be heard. However, we believe that in some cases where this issue is raised, it would be appropriate to remand the case for a hearing on the question." Id .; see also Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (observing that at the time of Lambright's default of an ineffective assistance claim in the mid-1980s, Arizona law permitted claim of ineffective assistance to be raised on direct appeal).
In 1989, two years before Petitioner filed his opening brief on direct appeal, the Arizona Supreme Court reiterated its preference for staying an appeal pending development of ineffectiveness claims in a post-conviction hearing before the trial court:
Generally, this court is reluctant to decide claims of ineffective assistance in advance of an evidentiary hearing to determine the reasons for counsel's actions or inactions on any particular point....
As a general matter, we recommend that when a defendant wishes to raise the question of ineffective assistance during the pendency of his appeal, he should file the proper petition under Rule 32, Ariz. R.Crim. P., 17 A.R.S., in the trial court and seek an order from the appellate court suspending the appeal. The trial court should then hold an evidentiary hearing and make its ruling. Afterward, a defendant should seek to consolidate the post-conviction proceedings with the direct appeal.
State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (1989); see State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
It was not until 1995, four years after Petitioner filed his appeal, that the Arizona Supreme Court abandoned its preference for suspending appeals pending evidentiary development of ineffectiveness claims in a post-conviction proceeding. As the court explained in Krone v. Hatham, 181 Ariz. 364, 890 P.2d 1149 (1995):
We once routinely stayed appeals pending resolution of Rule 32 proceedings, but that practice proved unworkable and resulted in long delays. See, e.g., State v. Vickers, 180 Ariz. 521, 885 P.2d 1086 (1994) (five years from conviction to disposition on appeal). Now, we will almost never allow a Rule 32 proceeding to delay a direct appeal.
We are aware that our present practice may appear to conflict with the practice suggested by cases starting with State v. Valdez . ... However, the practice of staying appeals pending resolution of Rule 32 proceedings has proven unsuccessful, and we will no longer engage in it, barring the most exceptional circumstances.
890 P.2d at 1151. The practical effect of Krone was the elimination of direct appellate review of ineffectiveness claims ...