Argued and Submitted, Pasadena, California: November
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:03-CV-00213-CKJ. Cindy K. Jorgenson, District Judge, Presiding.
The panel affirmed in part and reversed in part the district court's judgment denying a habeas corpus petition brought by Eric Owen Mann, who was convicted and sentenced to death in Arizona state court for two murders.
The panel held that Mann is not entitled to relief on his guilt phase claim of ineffective assistance of counsel because, under either of two competing versions of the facts, counsel's decision not to call Mann as a witness was strategic, and therefore fell within the wide range of reasonable professional assistance deemed constitutionally adequate under Strickland v. Washington.
Regarding Mann's claim that his counsel was constitutionally ineffective for failing to investigate and present reasonably available mitigating evidence at sentencing, the panel held that the state post-conviction court, which concluded that Mann was not prejudiced by counsel's performance at sentencing, wrongly held Mann to the more-likely-than-not standard when it imported reasoning from its decision denying Mann a new sentencing hearing based on newly discovered evidence.
The panel held that because the state court's application of this incorrect standard was contrary to clearly established federal law, AEDPA does not constrain this court from finding that Mann was prejudiced by his counsel's performance. And because the state post-conviction court did not reach the deficiency prong of Strickland analysis, the panel held that this court's review of that prong was not circumscribed by AEDPA. Reviewing that prong de novo, the panel concluded that counsel's performance at sentencing was constitutionally deficient. The panel explained that counsel's performance fell below an objective standard of reasonableness, where counsel failed to expeditiously conduct a reasonable investigation of Mann's background and potential sources of mitigation, and never followed through after gaining additional time to conduct an adequate investigation; and where nothing indicated that additional investigation would be fruitless or that the omitted mitigating evidence would be harmful.
The panel held that the district court also erred in determining that Mann failed to establish that counsel's performance prejudiced him. The panel explained that counsel's deficient performance left the sentencing judge and the Arizona Supreme Court with an incomplete and inaccurate picture of Mann, and had counsel performed adequately, there is a reasonable probability that the sentencers would have concluded that the balance of aggravating and mitigating factors did not warrant death.
The panel remanded with instructions to grant the writ conditional on the state conducting a new sentencing.
Judge Kozinski concurred in the majority opinion's treatment of the guilt phase claim, but dissented from its treatment of the claim of ineffective assistance of counsel at sentencing. He wrote that the majority seizes upon imprecise language in a single sentence of a state court's otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA's restrictions on the scope of this court's review, failing to faithfully apply Supreme Court precedent, and creating a split with two other circuits.
Jon M. Sands, Federal Public Defender, Cary S. Sandman (argued), Assistant Federal Public Defender, Tucson, Arizona; Amy B. Krauss, Tucson, Arizona, for Petitioner-Appellant Eric Owen Mann.
Thomas C. Horne, Attorney General, Kent E. Cattani, Division Chief Counsel, Jeffrey A. Zick, Section Chief Counsel, John Pressley Todd (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, Arizona, for Respondent-Appellee Charles L. Ryan.
Before: Sidney R. Thomas, Chief Judge, Stephen Reinhardt and Alex Kozinski, Circuit Judges. Opinion by Chief Judge Thomas; Partial Concurrence and Partial Dissent by Judge Kozinski.
THOMAS, Chief Judge:
Eric Owen Mann, who was convicted and sentenced to death in Arizona state court for the murders of two men, appeals the district court's denial of his habeas corpus petition. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm in part and reverse in part.
This case involves another tragic tale of drugs and violence. On the evening of November 23, 1989, Eric Mann and his then-girlfriend, Karen Miller, returned to the house they rented in Tucson after having Thanksgiving dinner with Mann's mother. Two weeks before, Mann had arranged to sell about a kilogram of cocaine to his friend, Richard Alberts, for about $20,000, and the transaction was to take place at the house that evening. However, according to Miller, Mann never actually planned to provide cocaine to Alberts. Rather, he planned to " rip off" Alberts by taking the money and giving Alberts a shoebox filled with paper instead of cocaine. He told Miller that he planned to " whack" Alberts because he knew he would not be able to get away with the theft otherwise.
About fifteen minutes after Mann and Miller returned to their house, Alberts arrived with another man, Ramon Bazurto. Mann was initially upset when he saw that Alberts had unexpectedly brought along a second person, but after some reflection he told Miller that he had " to do it." Mann let both men into the house, and after
about ten minutes of idle talk, they followed Mann to the master bedroom in the back of the house. Miller followed the men and stood in the doorway, behind and to the left of Bazurto. Both Mann and Miller were armed.
In the master bedroom, Mann laid his .45 caliber pistol on the bed, picked up the paper-filled shoebox, and handed it to Alberts, who in turn handed Mann a black bag containing the money. Mann placed the bag on the bed. Alberts then opened the shoebox and immediately realized that it was filled with paper. At that moment, Mann grabbed his gun and immediately shot Alberts and then Bazurto.
The bullet that struck Alberts traveled through his heart, killing him almost instantly. The bullet that struck Bazurto traveled through his lung and severed his aorta, but he remained alive for a short while. He fell through the bedroom doorway and landed on the floor by Miller's feet. As Bazurto lied there on his back, he made feeble attempts to reach for the gun that was tucked into the front of his pants. Miller testified that Bazurto's sporadic movements lasted approximately three to five minutes before he died.
Miller testified that she and Mann did not make a plan beforehand to deal with the aftermath of the killings, so after Mann shot Alberts and Bazurto, he left to find somebody to help move the bodies. He picked up a friend, Carlos Alejandro, who agreed to help. Mann and Alejandro loaded the bodies into Alberts's car, drove them to a remote location on a dirt road near Fort Grant prison, and left them there.
The next day, Mann and Miller thoroughly cleaned the house and concealed any indication of what happened the night before. They recovered the bullets, patched the bullet holes in the walls, repainted, and scrubbed the bedroom with ammonia. Mann dismantled his gun and Miller's gun, hammered down the pieces, and threw them, along with the recovered bullets, in a lake. Mann then gave Alberts's car to another man to pay off a debt.
Police searched Mann's and Miller's house on November 28, 1989 pursuant to a search warrant, and found evidence of repairs to the two rear bedrooms. Mann told the police that Alberts and Bazurto had been to the house for a drug deal on the evening of November 23, but left after they failed to agree on a price. The police made no arrests at that time, and the case did not develop further until 1994.
Miller ended her relationship with Mann in October 1993. She testified that their relationship deteriorated as Mann became increasingly violent and abusive toward her, and that in late October he threatened to kill her. Miller took their young daughter and left Tucson to live with Miller's father in Washington state. In January 1994, Miller contacted the Pima County Sheriff's Department to report the 1989 murders, and her information led investigators to Alejandro. Mann was subsequently arrested and charged with two counts of first-degree murder.
Mann's trial in the Pima County Superior Court began on October 25, 1994, and lasted five days. The prosecution's case relied primarily on the testimony of Karen Miller and Carlos Alejandro, who were both granted immunity from prosecution for their roles in the murders and cover-up. Mann's court-appointed attorney did not call any witnesses for the defense, but rather sought to hold the prosecution to its burden of proof and establish through cross-examination that Mann shot Alberts
and Bazurto out of self-defense, not premeditation.
On November 1, 1994, the jury found Mann guilty of both counts of first-degree murder. Following Mann's conviction, defense counsel realized that he needed more time to investigate Mann's background--including his education, criminal history, and medical records--so he requested a continuance of the sentencing hearing. He also requested that the court appoint a psychologist from the superior court clinic to evaluate Mann's mental health. The court granted both requests.
During the sentencing phase of the trial, defense counsel argued in support of ten non-statutory mitigating factors: Mann's positive, nonviolent relationship with his two daughters; his positive influence on his mother; his unstable and abusive family background; his poor educational experience; his history of substance abuse; his remorse; his cooperation with the authorities; his previously nonviolent history; his good conduct while incarcerated; and the disparity of his treatment compared to that of Miller and Alejandro. In addition to his sentencing memorandum, Mann's attorney presented Mann's handwritten autobiography, which included vivid details about how, when Mann was growing up, his father abused his brother and beat his mother so badly that she could not leave their house. The autobiography also mentioned a 1985 traffic accident in which Mann sustained a head injury and his two passengers were killed.
At the sentencing hearing, Mann's counsel presented the testimony of four witnesses. Mann's former employer testified that Mann was dependable and responsible, and Mann's former co-worker testified that Mann was a hard worker. Mann's oldest daughter testified that she loved her father and wanted to continue to have a relationship with him, and Mann's mother confirmed Mann's account of his father abusing his family and introducing Mann to crime at an early age.
The sentencing judge also had before him the report of the court-appointed psychologist, Dr. Todd C. Flynn. In that report, Dr. Flynn diagnosed Mann with alcohol abuse, polysubstance abuse, and antisocial personality disorder. He hypothesized that Mann's antisocial personality disorder was the result of extreme immaturity, which itself was due to substance abuse at an early age. He also concluded that Mann probably fit the designation of " Psychopath."
The sentencing judge found three statutory aggravating factors: offenses committed for pecuniary gain, Ariz. Rev. Stat. § 13-703(F)(5); multiple homicides, § 13-703(F)(8); and, with respect to Bazurto, murder committed in an especially cruel, heinous, and depraved manner, § 13-703(F)(6). Of the ten mitigating factors that Mann's counsel sought--all of which were non-statutory-- the judge found six. He rejected cooperation with authorities, nonviolent history, disparity of treatment, and remorse. The judge specifically and vehemently denied that Mann had proven the latter factor. The judge found that the only evidence of Mann's remorse for the murders was a letter he had written to the court before the sentencing hearing. The judge also pointed out that in Mann's handwritten autobiography, Mann indicated no remorse for the deaths of the two passengers in his 1985 traffic accident. This omission, combined with Dr. Flynn's report diagnosing Mann as a psychopath with antisocial personality disorder, led the judge to conclude that " the Defendant is incapable of remorse" and " has no conscience." The judge sentenced
Mann to death for each of the murders.
On direct appeal, the Arizona Supreme Court affirmed Mann's convictions. State v. Mann, 188 Ariz. 220, 934 P.2d 784, 795 (Ariz. 1997). The state supreme court also affirmed the trial court's findings concerning the aggravating and mitigating factors and, after independently reweighing those factors, concluded that the mitigating factors were insufficient to justify leniency. Id. at 790-91, 794-795. The United States Supreme Court denied Mann's petition for writ of certiorari. Mann v. Arizona, 522 U.S. 895, 118 S.Ct. 238, 139 L.Ed.2d 169 (1997).
Mann timely petitioned the state trial court for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. Among other claims, he asserted violations of his constitutional right to the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mann claimed ineffective assistance during the guilt phase due to counsel's decision to not call him to testify, and he claimed ineffective assistance during the sentencing phase due to counsel's failure to investigate and present reasonably available mitigating evidence--specifically, evidence pertaining to the effects of a serious traffic accident in 1985. Mann also claimed ineffective assistance due to counsel's failure to retain an independent mental health expert.
Judge John F. Kelly, the same judge who presided over Mann's trial and sentenced him to death, presided over Mann's post-conviction proceedings. During several evidentiary hearings, the judge heard testimony from Mann's trial counsel, Karen Miller, and Dr. James Comer, a clinical neuropsychologist who conducted a battery of tests on Mann to detect evidence of organic brain injury, The judge also had before him Dr. Comer's report, a psychological evaluation of Mann conducted by Dr. Richard Hinton, and Mann's medical records from his 1985 traffic accident.
At the close of the Rule 32 proceedings, the state court denied Mann's petition for post-conviction relief. With regard to Mann's claim of ineffective assistance for counsel's failure to call him to testify as a guilt-phase witness, the state court concluded that counsel's performance did not constitute deficient performance. With regard to Mann's claim of ineffective assistance for his trial counsel's failure to investigate and present reasonably available mitigating evidence, the state court found that Mann failed to show that his counsel's conduct prejudiced him. The Arizona Supreme Court denied Mann's petition for review without citation or comment.
Mann filed a timely petition for writ of habeas corpus under 28 U.S.C. § 2254, and subsequently filed an amended petition. The district court denied Mann's request for an evidentiary hearing, and on August 10, 2009, the district court issued an order denying Mann's petition on the merits. The district court certified three claims for appeal, and Mann timely appealed two of them: his claim of ineffective assistance of counsel at the guilt phase of his trial, and his claim of ineffective assistance of counsel at the sentencing phase of his trial.
We review de novo a district court's denial of a petition for writ of habeas corpus. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). We review the district court's factual findings for clear error. Hurles v. Ryan, 706 F.3d 1021, 1029 (9th Cir. 2013).
Because Mann filed his habeas petition after April 24, 1996, we apply the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214.
Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a state prisoner may not obtain federal habeas relief for any claim that was adjudicated on the merits by a state court unless the state court's decision was (1) " contrary to" clearly established federal law as determined by the Supreme Court, (2) " involved an unreasonable application of" such clearly established law, or (3) " was based on an unreasonable determination of the facts" in light of the record before the state court. 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011).
For the purpose of determining whether AEDPA bars federal habeas relief, we review the last reasoned state court decision. Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003). Because the Arizona Supreme Court denied Mann's petition for review without citation or comment, we " look through" that decision and review the state trial court's decision denying post-conviction relief. See id.
Mann is not entitled to habeas relief on his guilt phase claim for ineffective assistance of counsel because, under either version of the facts, counsel's decision not to call Mann as a witness was strategic, and therefore fell within the wide range of reasonable professional assistance deemed constitutionally adequate ...