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McGill v. Ryan

United States District Court, D. Arizona

March 30, 2015

Leroy McGill, Petitioner,
Charles L. Ryan, et al., Respondents.


JOHN J. TUCHI, District Judge.

Before the Court is Petitioner's motion for evidentiary development. (Doc. 57.) Petitioner seeks expansion of the record, discovery, and an evidentiary hearing on six of the claims in his habeas petition. (Doc. 30.) Respondents oppose evidentiary development. (Doc. 75.) The motion is denied in part, as set forth herein.


In 2004, a jury convicted Petitioner of first-degree murder and other counts and sentenced him to death. The following summary is taken from the opinion of the Arizona Supreme Court affirming Petitioner's convictions and death sentence. State v. McGill, 213 Ariz. 147, 150-51, 140 P.3d 930, 933-34 (2006).

In July 2002, Petitioner was living in Sophia Barnhart's house, along with his girlfriend, Jonna "Angel" Hardesty, and an acquaintance named Justin Johnson.

Jack Yates had an apartment in a duplex within walking distance of Barnhart's home. Hardesty's brother, Jeff Uhl, sometimes stayed in Yates' apartment. Eddie and Kim Keith, along with their two daughters, also stayed with Yates, as did Charles Perez and his girlfriend, Nova Banta.

On July 12, 2002, Petitioner, Hardesty, Barnhart, and Johnson spent the evening at Barnhart's house. At approximately 3:30 a.m. on July 13, Petitioner went to Yates' apartment. Uhl and Eddie Keith came out of the apartment to talk with Petitioner. Petitioner told Keith to get his wife and children out of the apartment because he "was going to teach [Perez] and [Yates] a lesson, that nobody gets away with talking about [Petitioner and Hardesty]."[1] In response to Keith's pleading, Petitioner agreed to spare Yates, but said it was too late for Perez. Petitioner also told Keith that he "was the only one who knew about it and that if anybody said anything about it, that [Petitioner] would know who said it." He then remarked that Keith "had pretty little girls." Keith and his family fled the apartment.

Uhl admitted Petitioner into the apartment shortly thereafter. Perez and Banta were sitting next to each other on a couch. Banta testified that Petitioner "turned around and looked at me and [Perez] and said [Perez] shouldn't talk behind other people's backs, and he poured the gasoline on us and quickly lit a match and threw it at us." Petitioner told witnesses that he had added pieces of a Styrofoam cup to the gasoline to create a napalm-like substance that would stick to his victims and cause them more pain. Perez and Banta, both engulfed in flames, ran out of the apartment.

Yates and Uhl also escaped the apartment, which had caught on fire. When firefighters arrived, the apartment was fully engulfed in flames.

At the hospital, Perez screamed "Help me, help me. Get the pain away." Burns covered eighty percent of his body. He died the next day.

Third degree burns covered three-quarters of Banta's body. At the hospital, Banta identified Petitioner as the person who set her on fire.

A grand jury indicted Petitioner for the first-degree premeditated murder of Charles Perez, the attempted first-degree murder of Nova Banta, two counts of arson, and endangerment.

At trial, Banta identified Petitioner as the man who attacked her. She also showed the jury the injuries she sustained from the fire. Dr. Phillip Keen testified to the nature and extent of Perez's injuries. The defense put on one witness, Sophia Barnhart, who claimed that Petitioner was not involved with the fire. The jury convicted on all counts.

At the close of the aggravation phase of the trial, the jury unanimously found that McGill had been convicted of prior serious offenses, A.R.S. § 13-703(F)(2); that he knowingly created a grave risk of death to persons other than the victim, A.R.S. § 13-703(F)(3); and that he committed the offense in both an "especially cruel" and an "especially heinous or depraved" manner, A.R.S. § 13-703(F)(6).

In the penalty phase, Petitioner put on evidence that he had experienced an abusive childhood; that he was psychologically immature and, as a result, his girlfriend had greater than normal influence over him; that he suffered from some degree of mental impairment; that he performed well in institutional settings; and that his family cares about him. The State put on rebuttal evidence, including evidence that while awaiting trial Petitioner attempted to have a potential witness against him killed. The jury found that Petitioner's mitigation evidence was not sufficiently substantial to call for leniency and determined that death was the appropriate sentence. The Arizona Supreme Court affirmed. McGill, 213 Ariz. at 163, 140 P.3d at 946.

On June 1, 2010, Petitioner filed a petition for post-conviction relief ("PCR") raising several claims of ineffective assistance of counsel. Petitioner alleged that trial counsel performed ineffectively by failing to adequately prepare the defense neuropsychologist, Dr. Richard Lanyon, who testified in mitigation; failing to retain additional experts and develop significant mitigation evidence; failing to present mitigation evidence of cognitive impairment, sexual abuse, and neglect; and failing to challenge his prior convictions. (Doc. 35, Ex. CC.)

The court dismissed all but one of the claims as not colorable. ( Id., Ex. JJ.) The court found that Petitioner had stated a colorable claim with respect to his allegation that counsel should have "retained additional experts to investigate further the defendant's alleged brain damage and to corroborate Dr. Lanyon's conclusions, particularly one who could have shown a causal nexus between his impairment and the crime." ( Id. at 4, 6.) The court ordered an evidentiary hearing on the claim. ( Id. )

In October 2011, the PCR court conducted an evidentiary hearing, during which Petitioner presented testimony from Dr. Lanyon and lead trial counsel, Maria Schaffer, plus two additional expert witnesses, Drs. Joseph Wu and Richard Rosengard. ( Id., Ex's LL, MM.) Following the hearing, the court denied relief. ( Id., Ex. Y, at 4-11.6) The Arizona Supreme Court denied review on May 30, 2012. ( Id., Exhibit AA.)

Petitioner filed his petition for writ of habeas corpus in this Court on April 8, 2013. (Doc. 30.)


Petitioner seeks evidentiary development on the following claims in his habeas petition: Claim 1 (alleging ineffective assistance of trial counsel in presenting mitigation evidence at sentencing); Claim 2 (ineffective assistance of counsel at the aggravation phase); Claim 4 (ineffective assistance of counsel for failing to challenge arson evidence); Claim 5 (alleging that the prosecution solicited and failed to correct false testimony), Claim 6 (ineffective assistance of counsel for failing to adequately cross-examine a witness), and Claim 7 (alleging that the prosecution failed to disclose impeachment evidence).

Federal habeas claims are analyzed under the framework of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to 28 U.S.C. § 2254(d), a petitioner is not entitled to habeas relief on any claim adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The Supreme Court has emphasized that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000). In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785B86 (2011), the Supreme Court clarified that under § 2254(d), "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision."

In Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011), the Court reiterated that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." See Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014) ("Along with the significant deference AEDPA requires us to afford state courts' decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under § 2254(d)(1)."). The Ninth Circuit has observed that " Pinholster and the statutory text make clear that this evidentiary limitation is applicable to § 2254(d)(2) claims as well." Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (2013) (citing § 2254(d)(2) and Pinholster, 131 S.Ct. at 1400 n.7). Therefore, as the court explained in Gulbrandson:

for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of § 2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could ...

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