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White v. Ryan

United States District Court, D. Arizona

July 10, 2015

Michael Ray White, Petitioner,
Charles L. Ryan, et al., Respondents.


STEVEN P. LOGAN, District Judge.

Before the Court are Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 273) and Motion for Evidentiary Development (Doc. 277), which are fully briefed. For the reasons that follow, the Court concludes that Petitioner is not entitled to relief, and will deny his petition.

I. Background

A. State Proceedings

In 1988, a jury convicted Petitioner of first-degree murder and conspiracy to commit first-degree murder. The trial court sentenced him to life without possibility of parole for 25 years for the conspiracy and imposed the death penalty for the first-degree murder. The Arizona Supreme Court affirmed. State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991).

In 1992, Petitioner filed a petition for post-conviction relief ("PCR"). He filed an amended petition in 1995. The trial court granted Petitioner a new sentencing on grounds of ineffective assistance of counsel during the initial sentencing proceedings. On resentencing, Petitioner again received a life sentence without possibility of parole for 25 years for the conspiracy and a death sentence for the murder. The Arizona Supreme Court again affirmed. State v. White (White II), 194 Ariz. 344, 347-49, 982 P.2d 819, 822-24 (1999). Except where otherwise indicated, the following factual summary is taken from White II.

At approximately 11 p.m. on December 12, 1987, neighbors of David and Susan Johnson (David and Susan) heard gunshots at the Johnson residence in Bagdad, Arizona. Neighbors saw a man run from the residence, enter a green car, and speed away. David walked to a neighbor's home and collapsed. He had been shot in the chin and in the back with a.357 magnum revolver. Before dying, David identified the shooter as a man wearing a mask.

The police investigation soon focused on Petitioner and Susan. Police learned that Petitioner met Susan in January 1987, when the two worked at a nursing home in Prescott, Arizona. In April 1987, the couple went to Michigan. Susan returned to Prescott the following October and married David. Petitioner also returned and resumed his affair with Susan.

On November 25, 1987, Susan obtained a $65, 000 life insurance policy on David. Susan was the named beneficiary. There was also a change of beneficiary in David's existing employee group life insurance. Susan obtained the change form on December 7, 1987, and returned it fully executed on December 10, two days before the murder. The form added Susan and her children as beneficiaries.

Petitioner told several people that Susan had asked him to kill David. He also told his ex-wife that he was soon going to receive $100, 000.

The police learned that Petitioner made a down payment on a revolver at a Prescott pawn shop on November 19, 1987. He later made another payment and picked up the gun. After David was shot, Petitioner sold the revolver to a Phoenix pawn shop. It was later recovered and identified as the weapon used to kill David. Petitioner's car was also identified as the green vehicle driven from the murder scene.

Petitioner was arrested in Phoenix on December 19, 1987. Police searched the car and found a box of.38 caliber bullets, a ski mask, and a bag of potatoes. At the time of the shooting, the killer had placed a potato over the barrel of the revolver to act as a silencer. Pieces of dried potato were found at the crime scene, and potato starch was found on the gun barrel.

Petitioner's trial was severed from Susan's. Petitioner was represented by attorney Chester Lockwood.

The jury convicted Petitioner on both the conspiracy and murder counts. At the presentencing hearing, the State argued that the crime was motivated by Petitioner's intent to benefit from the insurance proceeds on the victim's life. Petitioner contended that the evidence did not establish that his involvement in the killing was for financial gain. The court disagreed and found that the State had proved the pecuniary gain aggravating factor.

Petitioner presented no evidence of mitigation but argued that the absence of a prior criminal record was a mitigating circumstance. The trial court also considered the following facts in mitigation: Petitioner's natural father left home when Petitioner was 18 months old, his first stepfather was an alcoholic, and he was raised by his mother; Petitioner had dependent personality traits and admitted to past heroin, cocaine, and amphetamine use and addiction; Petitioner was unable to form and maintain close personal relationships; although he generally had difficulty acting responsibly, Petitioner did well in his nursing home employment and had been a productive person during various periods of his life; he had no prior record of abuse or violent behavior; and he expressed sorrow for David's death. The court found these circumstances insufficient to call for leniency and sentenced Petitioner to death for David's murder. (SER 24.)[1] The Arizona Supreme Court affirmed on direct appeal. White I, 168 Ariz. 500, 815 P.2d 869.

Susan Johnson was subsequently convicted of conspiracy to commit first-degree murder and first-degree murder. She received consecutive life sentences.[2]

Petitioner returned to the trial court for PCR proceedings. He was represented by Douglas McVay, who filed a PCR petition alleging numerous grounds of ineffectiveness of counsel at trial and sentencing. The court granted the petition on the sentencing claims and ordered a new mitigation hearing and sentencing proceeding. McVay also represented Petitioner at resentencing and on direct appeal from the resentencing.

At the resentencing hearing in August 1996, the prosecution offered no new evidence of aggravation. McVay presented evidence that the prosecutors at Petitioner's first trial and sentencing believed the State should not have sought the death penalty. (RT 8/27/96.)[3]

McVay proffered other mitigating circumstances. He argued that Petitioner was capable of being rehabilitated; that he was an involved parent to his daughter; that co-defendant Susan Johnson was the "mastermind" behind the crimes and therefore Petitioner's death sentence was unfair and disproportionate to Johnson's sentence; and the murder represented "aberrant behavior" for Petitioner. (SER 122-32.)

The trial court again found the pecuniary gain aggravating factor had been proven. (SER 138.) The court considered the mitigating factors urged by Petitioner but found them insufficient to call for leniency. (SER 139-45.)

On direct appeal the Arizona Supreme Court again affirmed:

Based on our independent review of the sentence imposed on the defendant we conclude that the state has proved beyond a reasonable doubt the aggravating circumstance that Michael Ray White murdered David Johnson in anticipation of substantial pecuniary gain. We further conclude, in view of the calculated scheme which resulted in Johnson's death, that the mitigating factors raised by the defendant and discussed in this opinion, whether viewed individually or cumulatively, are insufficient to warrant a mitigation of sentence. They neither outweigh nor are they equal to the statutory aggravating circumstance present in this case. Defendant's capital sentence is therefore affirmed.

White II, 194 Ariz. at 356, 982 P.2d at 831.

Petitioner, represented by new counsel, returned to the trial court for another round of PCR proceedings, this time alleging that McVay had performed ineffectively at resentencing by failing to adequately investigate Petitioner's mental health issues. ( See SER 247.) Petitioner filed an amended PCR petition on May 2, 2005. (PR doc. 7, Ex. F.)[4]

The court held an evidentiary hearing on November 5, 2007. Petitioner was represented by attorney Kerrie Droban. Two witnesses testified on Petitioner's behalf, counsel McVay and Keith Rohman, a mitigation specialist. (RT 11/5/07.) McVay acknowledged that he did not attempt to secure Petitioner's medical or psychological records. ( Id. at 29, 50-51.) Rohman testified about Petitioner's physical and mental illnesses and other information gained in his mitigation investigation. ( Id. at 92-93, 146.)

The court denied relief. (SER 271.) The court found that McVay did not perform deficiently at resentencing under prevailing professional norms and that Petitioner was not prejudiced. ( Id. )

Droban filed a petition for review in the Arizona Supreme Court raising two issues: that McVay failed to contest the pecuniary gain aggravating factor and failed to conduct a mitigation investigation concerning Petitioner's "mental health, social history, and atrocious childhood." (SER 273-74.) The Supreme Court denied the petition without comment on October 28, 2008, and issued a warrant for Petitioner's execution. (SER 293.)

B. Federal Proceedings

Petitioner filed a motion for stay of execution, a motion for appointment of federal habeas counsel, and a statement of intent to file a federal habeas petition in this Court. (Docs. 1-5.) On October 29, 2008, the Court issued a stay of execution and appointed the Federal Public Defender's Office to represent Petitioner in his federal habeas proceedings, with Droban serving as co-counsel. (Docs. 7, 8.)

The initial petition for writ of habeas corpus was filed on December 22, 2008. (Doc. 23.) The Court ordered Petitioner to submit an amended petition no later than July 17, 2009. (Doc. 35.) Petitioner's counsel sought additional time to file the amended petition, raising concerns about Petitioner's competency pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003).[5] (Doc. 42.) On September 23, 2009, counsel filed a motion to determine competency and to stay the habeas proceedings, which the Court granted. (Docs. 66, 68.)

Petitioner was evaluated by a court-appointed expert and experts for the parties. On September 28, 2010, the parties stipulated that Petitioner was incompetent, and the Court ordered the parties to file a joint report regarding restoration. (Doc. 186.) The parties filed their joint report (Doc. 187), and upon order of the Court Petitioner was transferred to the Arizona State Hospital ("ASH") for determination of a restoration plan. (Docs. 190, 196).

The parties then briefed issues related to forcibly medicating Petitioner and whether Cullen v. Pinholster, 131 S.Ct. 1388 (2011), affected Petitioner's competency litigation. (Docs. 211, 212, 215, 220, 224, 225.) After being informed of a conflict between ASH and the Arizona Department of Corrections about responsibility for Petitioner's treatment, the Court issued an order vacating its previously set hearing regarding forcible medication and ordered Respondents to file monthly status updates. (Doc. 226.)

In January 2013, the Supreme Court issued its opinion in Ryan v. Gonzales, 133 S.Ct. 696 (2013), abrogating Rohan. This Court lifted the stay and ordered Petitioner to file an amended petition. The amended petition was filed July 19, 2013. (Doc. 273.)

II. Standard of Review

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 (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." Id. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103; see Frost v. Pryor, 749 F.3d 1212, 1225-1226 (10th Cir. 2014) ("[I]f all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable... If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.").

With respect to § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). Even if "[r]easonable minds reviewing the record might disagree" about the finding in question, "on habeas review that does not suffice to supersede the trial court's... determination." Rice v. Collins, 546 U.S. 333, 341-342 (2006); see Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (explaining that on habeas review a court cannot find the state court made an unreasonable determination of the facts simply because it would reverse in similar circumstances if the case came before it on direct appeal).

As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). "This is a daunting standard-one that will be satisfied in relatively few cases." Id.

Significantly, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398 (holding that "the record under review is limited to the record in existence at that same time, i.e. the record before the state court"); 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 not be considered in evaluating whether the claim meets the requirements of § 2254(d).

Id. at 993-94.

The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Y lst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).

III. Discussion

The amended habeas petition raises 28 claims, [6] along with numerous subclaims. (Doc. 273.) In his motion for evidentiary development Petitioner seeks expansion of the record, discovery, and an evidentiary hearing on two of the claims: Claim 1, alleging ineffective assistance of counsel at resentencing, and Claim 15, alleging ineffective assistance of trial counsel. (Doc. 277.)

A. Claim 1

Petitioner alleges that McVay performed at a constitutionally ineffective level during resentencing. (Doc. 273 at 40.) He alleges that McVay performed ineffectively by failing to challenge the pecuniary gain aggravating factor ( id. at 42-50) and by failing to investigate and present mitigation evidence at Petitioner's resentencing hearing. ( Id. at 50-82.) Petitioner raised these allegations in his second PCR petition, and the court rejected them. Petitioner contends that the state court's decision constituted an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1) and (2). ( See id. at 42, 50.)

In support of this claim, Petitioner seeks expansion of the record and an evidentiary hearing. (Doc. 277 at 20-29.) The evidence Petitioner now seeks to present includes the opinions of several mental health experts, which Petitioner contends should have been presented by McVay at resentencing. ( Id. ) Respondents argue that evidentiary development is foreclosed under Pinholster because the state court addressed the claim on the merits. (Doc. 278 at 4-7.)

Petitioner counters that Pinholster does not limit the Court's ability to allow evidentiary development of claims that were not fully developed in state court despite his diligence. (Doc. 277 at 2.) He argues that " Pinholster cannot be interpreted to prevent evidentiary development of claims made by diligent petitioners whose attempts at factual development in state court were thwarted by the state court itself." (Doc. 279 at 3.) In arguing that he was denied an opportunity to "fully develop" his claims, Petitioner cites the state court's denial of his motion seeking the appointment of mental health experts during the second PCR proceedings. Petitioner's argument is not supported by Pinholster or subsequent cases.

"While allowing a petitioner to supplement an otherwise sparse trial court record may be appealing, especially where he diligently sought to do so in state court, the plain language of Pinholster and Harrington [ v. Richter ] precludes it." Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th Cir. 2013); see Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011) (rejecting argument that a state court did not adjudicate claim on the merits unless petitioner was afforded a "full and fair evidentiary hearing"); see also Donaldson v. Booker, 505 Fed.Appx. 488, 493 (6th Cir. 2012) (rejecting argument that Pinholster does not apply in cases where "petitioner requested an evidentiary hearing in state court and was thereby not at fault for failure to develop the factual record in state court"); Taylor v. Simpson, No. 06-CV-181-JBC, 2012 WL 404929, at *3 (E.D. Ky. February 6, 2012) (rejecting argument that " Pinholster addressed only a fully developed claim, adjudicated on the merits in state court"); Lewis v. Ayers, No. 02-13-KJM-GGH-DP, 2011 WL 2260784, at *5-6 (E.D.Cal. June 7, 2011) ("Nor will an assertion-that because the state record was incomplete, there was no adjudication on the merits-operate to avoid the [ Pinholster ] holding. An adjudication on the merits is just that regardless of one's view on the completeness of the record on which the ruling was made.").

Petitioner further contends that Pinholster does not preclude the consideration of new evidence because the claim "satisfies" § 2254(d). (Doc. 279 at 2, 4-5.) Petitioner is correct that Pinholster does not bar evidentiary development where the court has determined, based solely on the state court record, that the petitioner "has cleared the § 2254(d) hurdle." Madison v. Commissioner, Alabama Dept. of Corrections, 761 F.3d 1240, 1249-50 (11th Cir. 2014); see Pinholster, 131 S.Ct. at 1400-01; Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013) (explaining that Pinholster bars evidentiary hearing unless petitioner satisfies § 2254(d)).

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.

With respect to Strickland 's second prong, a defendant 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.

"Surmounting Strickland 's high bar is never an easy task, " Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 131 S.Ct. 788. As the Court explained in Richter:

Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." [ Strickland, 466 U.S.] at 689. The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms, " not whether it deviated from best practices or most common custom. [ Id. ] at 690.
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential, " and when the two apply in tandem, review is "doubly" so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard.

131 S.Ct. at 788 (additional citations omitted).

1. Claim 1(A)

Petitioner alleges that McVay performed ineffectively at resentencing by failing to challenge the sole aggravating factor, pecuniary gain. (Doc. 273 at 42.) Petitioner raised this claim in his second PCR proceedings, and the court denied it. (SER 256-57.) Petitioner contends that the court's decision was an unreasonable application of clearly established federal law and based on an unreasonable determination of the facts. (Doc. 273 at 43-44.)

The PCR court found that McVay's performance was not deficient and that Petitioner was not prejudiced. (SER 257.) The court noted that the pecuniary gain factor was proven at trial and upheld on independent review by the Arizona Supreme Court in White I. (SER 256.) The court further noted McVay's testimony at the evidentiary hearing that White I influenced his decision not to challenge the factor at resentencing. ( Id .; see RT 11/5/07 at 65.) The court concluded that McVay "acted as a reasonable lawyer under the circumstances" and his decision not to challenge the aggravating factor was "based on sound trial strategy." ( Id. ) The court also found "[t]here was no reasonable probability that this Court would not have found the aggravator proven had McVay challenged it."[7] (SER 256.)

In reaching these conclusions the court took into account the evidence Petitioner contends should have been presented at resentencing. (SER 255.) This evidence included statements Susan made in a police interview suggesting that Petitioner did not expect to receive a portion of the insurance proceeds and that Petitioner killed David Johnson because David had abused Susan. ( Id. ) The evidence also included statements other witnesses made to the police indicating that the insurance policy was not yet in effect or that only Johnson's children were its beneficiaries. ( Id. )

The court also explained that pecuniary gain did not have to be the sole motivation for the murder in order for the factor to be satisfied. (SER 256.) Finally, the court concluded that the new evidence presented by PCR counsel would not have changed his decision about the aggravating factor. ( Id. )

The PCR court did not unreasonably apply Strickland or make an unreasonable determination of the facts. In finding that McVay acted reasonably under the circumstances of the case, the court cited Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), overruled on other grounds, 525 U.S. 141 (1998). In Coleman the Ninth Circuit reiterated that the review of counsel's performance is "extremely limited":

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.

150 F.3d at 1113 (additional citations omitted).

A reasonable lawyer could have acted as McVay did. Prior to the resentencing proceedings the Arizona Supreme Court had upheld the pecuniary gain aggravating factor. Moreover, the PCR court granted relief on the PCR petition only "for a mitigation hearing and new sentencing." (SER 121.) Under these circumstances, "some reasonable lawyer" could decide, as McVay did, not to challenge the pecuniary gain factor but to focus instead on mitigation. ( See RT 11/5/07 at 65.)

Petitioner contends that the PCR court made an unreasonable determination of the facts when it assessed the evidence relating to the pecuniary gain factor. The PCR court found that Susan Johnson's statements to the police were "contradicted" by her subsequent trial testimony, which indicated that Petitioner was aware of the insurance policies, repeatedly questioned Susan about them, and assumed that Susan would receive the proceeds and share them with him. (SER 256.) Petitioner asserts that this factual determination is unreasonable because the PCR court "made no findings... about how it chose which statements made by Susan it considered credible." (Doc. 273 at 46.)

This criticism of the PCR court's analysis fall far short of satisfying § 2254 (d)(2). "[S]tate courts are not required to address every jot and tittle of proof suggested to them, nor need they make detailed findings addressing all the evidence before [them].'" Taylor, 366 F.3d at 1001 (quoting Miller-El, 537 U.S. at 347). The PCR court did not ignore or overlook any highly probative evidence. Id. The fact that Petitioner disagrees with the PCR court's assessment of the evidence does not render the court's decision unreasonable. Rice v. Collins, 546 U.S. at 341-42.

The PCR court's finding that Petitioner was not prejudiced is also reasonable. The most significant proffered evidence in support of this claim are the statements contained in Susan Johnson's police interview. That report was admitted into evidence during the suppression hearing before Petitioner's trial (SER 13), and therefore was before the court at Petitioner's sentencing and resentencing. McVay's failure to proffer them at resentencing did not prejudice Petitioner.

In addition, the judge in the PCR proceedings, Judge James Hancock, also presided over Petitioner's trial and sentencing. His familiarity with the record provides the Court an additional reason to extend deference to his ruling. See Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir. 1998). As the Ninth Circuit explained in Smith, when the judge who presided at the post-conviction proceeding was also the trial and sentencing judge, the reviewing court is considerably less inclined to order relief because doing so "might at least approach a looking-glass exercise in folly.'" Id. (quoting Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997)); see Schurz v. Ryan, 730 F.3d 812, 816 (9th Cir. 2013) ("We are particularly confident in so concluding [that Schurz was not prejudiced by counsel's performance at sentencing] in light of the fact that the judge who sentenced Schurz already reviewed much of the new' evidence through the state post-conviction process, and found it insufficient to change the sentence from death.").

2. Claim 1(B)

Petitioner alleges that McVay was ineffective at resentencing because he failed to investigate and present substantial and readily-available mitigation evidence. (Doc. 273 at 40.) Petitioner raised this claim during the PCR proceedings following resentencing, and the PCR court denied it. Petitioner contends that the PCR court's denial of the claim was based on an unreasonable determination of the facts and constituted an unreasonable application of Strickland. (Doc. 273 at 50.) The Court disagrees.

(a) Facts

At the resentencing hearing McVay presented the testimony of Marc Hammond, the attorney who prosecuted Petitioner in the first trial and sentencing. Hammond testified that he believed the State should not have sought the death penalty because the case was a "run of the mill" murder and did not belong in the same category as other capital murders. (RT 8/27/96 at 15.) Hammond's co-counsel, Jill Lynch, agreed. ( Id. at 18.) In arguing for the death penalty at trial, Hammond was following the policy of his office. ( Id. at 15.) Hammond also testified that he believed Susan Johnson was the instigator of the plot and convinced Petitioner to go through with the murder. ( Id. at 17.)

McVay submitted a sentencing memorandum that proffered other mitigating circumstances. (SER 122.) He emphasized that Petitioner was capable of being rehabilitated, based on his lack of a prior record of violence, his periods of productive employment, and his performance as a "model inmate." (SER 126-28.) McVay noted that Petitioner had been in contact with some of his children and was able to provide parental advice and guidance. (SER 129.) He contended that co-defendant Susan Johnson was the "mastermind" behind the crimes and pushed Petitioner into committing the murder, and that Petitioner's death sentence was unfair and disproportionate to Johnson's sentence given their respective roles in the crimes. (SER 128-31.) Finally, McVay argued that the murder represented "aberrant behavior" for Petitioner given the absence of violent or abusive conduct in his record. (SER 131-32.)

Petitioner filed a pro se sentencing memorandum alleging that he was being tortured by personnel from the Department of Corrections who had inserted "biotelemetry implants" into his brain. (PR doc. 7, Ex. C.) Petitioner also stated that he suffered from Graves' disease, which reduced his life expectancy. ( Id. )

The trial court again sentenced Petitioner to death, and the Arizona Supreme Court affirmed. Petitioner then returned to the trial court for a second round of PCR proceedings, this time alleging that McVay performed ineffectively at resentencing. ( See SER 247.) In 2001, the PCR court appointed an investigator and a mitigation expert, Mary Durand. ( Id. ) Durand withdrew and was replaced by Keith Rohman in 2003. ( Id. ) The court denied PCR counsel's request for the appointment of a neuropsychologist and other experts. However, the court granted Petitioner's motion for an expert to determine if Petitioner was mentally retarded under Atkins v. Virginia, 536 U.S. 304 (2002). The court appointed Dr. Anne Herring, who scored Petitioner with a full scale IQ of 91 and concluded that he was of average general intelligence. (SER 162-64.)

Petitioner filed an amended PCR petition on May 2, 2005. (PR doc. 7, Ex. F.) He argued that McVay performed ineffectively by failing to investigate and present evidence of Petitioner's mental health problems. He also identified a number of other alleged deficiencies, arguing that McVay failed to adequately investigate and present evidence that Petitioner suffered from Graves' disease/hyperthyroidism; had borderline intellectual functioning and low intelligence; was the product of a multi-generational history of violence and criminality, alcoholism, and substance abuse; experienced an abusive childhood and unstable home-life; suffered serious head injuries and childhood seizures; suffered from Attention Deficit Hyperactivity Disorder and anxiety disorder during childhood and at the time of the crime; lived in poverty and was unable to support himself; was emotionally and psychologically unable to maintain relationships; and was a model prisoner who adjusted to prison life and could be rehabilitated.

Attached to the PCR petition was a declaration from mitigation specialist Rohman, which included a 70-page "psycho-social history" of Petitioner and a 70-page "social history chronology." (PR doc. 3.) Rohman explained that he believed Petitioner displayed "strong indications of mental and physical illnesses, " but acknowledged that he was not qualified to make such diagnoses. ( Id. at 3.) Rohman stated that a complete picture of Petitioner's psychological and social makeup was impossible to construct without the assistance of relevant experts. ( Id. )

The court held an evidentiary hearing on November 5, 2007. Petitioner presented two witnesses, counsel McVay and mitigation specialist Rohman. (RT 11/5/07.) McVay testified that during the resentencing proceedings he had retained an investigator to compile mitigation evidence. ( Id. at 61-62.) He acknowledged, however, that he did not attempt to secure Petitioner's prison medical or psychological records. ( Id. at 29, 50-51.) McVay denied that he was "on notice" of Petitioner's mental health issues, despite having received letters from Petitioner complaining of brain implants. ( Id. at 28.) McVay testified that from his conversations with Petitioner, he did not "believe there was a founded basis" for requesting Petitioner's records from the Arizona Department of Corrections. ( Id. at 29.) He testified that he was skeptical, based on his face-to-face meetings with Petitioner during which Petitioner "seemed mostly rational, " that Petitioner "genuinely believe[d] that he had implants inserted in his body" as described in his letters. ( Id. at 64.)

Petitioner's medical records showed he had been diagnosed with Graves' disease and exhibited mental impairments such as paranoia and hallucinations, possibly related to the disease. ( Id. at 32-33.) McVay conceded that he did not have a strategic basis for failing to review the records, and that if he had known of their contents he would have pursued the issue of Petitioner's mental health. ( Id. at 42, 51.)

McVay testified that the choices he made in representing Petitioner were based on his conversations with Petitioner, his familiarity with the facts of the case, and information he received from his investigator. ( Id. at 58.) McVay testified that in his judgment the "most compelling" mitigating information was the prosecutors' opinion that the death penalty should not have been sought in Petitioner's case. ( Id. at 66.) He felt this circumstance "was very compelling because it was so unusual." ( Id. )

Rohman testified about his mitigation investigation. He explained that in the course of his investigation he interviewed Petitioner's relatives and secured school records and records from the Department of Corrections. ( Id. at 81, 121.) The records showed that Petitioner was diagnosed with hyperthyroidism and Graves' disease in 1988 and diagnosed with schizophrenia in 1999, and he reportedly experienced visual and auditory hallucinations and paranoia dating from 1988. ( Id. at 83, 119.) Rohman testified that the medical literature he reviewed identified a link between Graves' disease and mental illness. ( Id. at 92.) Rohman also testified that Petitioner's school records showed he suffered from symptoms consistent with ADHD. ( Id. at 121.) Petitioner coped with these conditions by using marijuana on nearly a daily basis from the age of 18. ( Id. at 121.) The records also showed an IQ test from Petitioner's childhood on which he scored a 74. ( Id. at 102.)

Rohman admitted that he was not qualified to offer an opinion on whether Petitioner suffered from any of these conditions at the time of the crimes. ( Id. at 92-93, 146.) He stated that a competent attorney would have retained a psychologist and a medical doctor to examine Petitioner during resentencing. ( Id. at 96.)

Following the hearing the PCR court denied relief in a 30-page order. (SER 241-71.) Judge Hancock found that McVay did not perform deficiently under prevailing professional standards and that Petitioner was not prejudiced. ( Id. )

(b) Analysis

Petitioner contends that the PCR court's denial of the claim was based on an unreasonable determination of the facts and constituted an unreasonable application of Strickland. (Doc. 273 at 50.) The Court agrees.

i. Determination of Facts

Petitioner makes several arguments in support of his allegation that the PCR court's denial of this claim was based on an unreasonable application of the facts, thereby satisfying § 2254(d)(2). First, citing Taylor v. Maddox, 366 F.3d 992, Petitioner contends that the PCR court's denial of funding for a neuropsychologist and other experts led to a defective fact-finding process and thus rendered the court's decision unreasonable. (Doc. 273 at 64-65; Doc. 275 at 15.)

In Taylor, the Ninth Circuit identified a number of procedural flaws which presumptively result in unreasonable factual determinations in state court, including when "the fact-finding process itself is defective, " such as when a state court "makes evidentiary findings without holding a hearing, " misapprehends or misstates a material fact, or ignores evidence that supports the petitioner's claim. 366 F.3d at 1001. The Ninth Circuit has cautioned, however, that "[t]o find the state court's fact finding process defective in a material way, or, perhaps, completely lacking, we must more than merely doubt whether the process operated properly. Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate.'" Hurles, 752 F.3d at 778 (quoting Taylor, 366 F.3d at 1000).

Neither the PCR court's factual findings nor its fact-finding process were unreasonable or defective to a degree that would satisfy § 2254(d)(2). The court appointed an investigator and a mitigation expert. The latter compiled records, interviewed witnesses, and prepared a comprehensive report documenting Petitioner's social history and mental health issues. The court also granted Petitioner's motion for the appointment of an expert to determine whether Petitioner was mentally retarded. Finally, the court held an evidentiary hearing. After the hearing Judge Hancock issued detailed findings of fact addressing Petitioner's allegation that McVay performed ineffectively at sentencing.

The court's failure to appoint a neuropsychologist did not constitute a defect so material that no reviewing court could hold that the fact-finding process was adequate. The court found that Petitioner "did not make the showing necessary to obtain a neuropsychologist." The court cited Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985), which holds that a defendant is constitutionally entitled to a mental health expert upon a "threshold showing... that his sanity is likely to be a significant factor in his defense." Noting the calculated nature of the crimes, the court found that Petitioner "failed to show that any impairment would carry significant weight in mitigation and failed to show that impairment as alleged would play a significant role in his defense against the death penalty." (SER 251.) The court's application of Ake to deny funding for a neuropsychologist did not render the fact-finding process defective. The court granted an evidentiary hearing on Petitioner's ineffective assistance of counsel claim and appointed a mitigation specialist who gathered evidence of Petitioner's mental health issues.[8]

Petitioner also argues that the court's factual findings were unreasonable with respect to the various categories of mitigating evidence proffered by PCR counsel because the court "ignored compelling evidence that went to the heart of [the] claim." ( See, e.g., Doc. 273 at 68, 69.)

The court found that Petitioner's hyperthyroidism, mental illness, and borderline IQ did not contribute to the crime and were inconsistent with the rational and calculating way the conspiracy and murder were carried out. With respect to hyperthyroidism, the court found:

Assuming McVay could have established that White suffered from hyperthyroidism when he murdered Johnson and that such condition produced symptoms of anxiety, delusions, or paranoia, this Court would have concluded that such symptoms did not contribute to his conduct. This Court would have considered hyperthyroidism in mitigation but would have afforded it little weight and still would have imposed the death penalty.

(SER 259.)

The court reached similar conclusions with respect to evidence of Petitioner's mental illness. The court found the following facts:

White corresponded with McVay discussing torture at the hands of DOC personnel, the use of "biotelemetry implants, " and other unusual matters.
McVay questioned whether White truly believed the accusations he made in correspondence.
White behaved normally and rationally during face-to-face meetings with McVay... and did not mention the topics about which he wrote and did not show any outward symptoms of mental illness.

(SER 259-60.) Based on these facts the court made the following conclusions of law:

McVay was not required under Strickland to request White's mental health records absent some suggestion that they might contain information with mitigating value.
McVay acted reasonably in deciding to concentrate on other areas of mitigation.
White has failed to show prejudice under Strickland because had McVay presented evidence of mental illness, this Court would have considered the same; however, such mental illness would have been afforded little weight by this Court- White's conduct was rational and calculating and he was clearly aware of his conduct and the wrongfulness thereof. White's mental illness, if any, would not have been sufficiently substantial to call for leniency.

(SER 260-61.)

Petitioner asserts that the court's findings were unreasonable because the court overlooked or discounted evidence that psychological manifestations of his mental and physical conditions-including insomnia, disorganized thinking, paranoia, erratic behavior, mood swings, anxiety, grandiose illusions, delusional thoughts, and irrational judgment-likely affected his behavior during the crime. ( See Doc. 273 at 68-69.)

The argument that the court ignored this evidence is unpersuasive. Judge Hancock specifically stated that even if the effects of the conditions had been proved, he would not have attached significant mitigating weight to them because the facts of the crime demonstrated that Petitioner behaved in a rational and calculated manner in carrying out the conspiracy to murder Johnson.

The court likewise considered Petitioner's arguments concerning McVay's failure to present evidence of Petitioner's alleged intellectual impairment, drug use, family violence, poverty, ADHD, and head injuries/seizures. (SER 261-63, 264-70.) The court also addressed the allegation that McVay performed ineffectively by failing to argue that Susan Johnson had the greater relative culpability in the crimes and that Petitioner was a model inmate. (SER 263-64, 270.) With respect to each of these mitigating circumstances, the court found that Petitioner could show neither deficient performance nor prejudice.

Petitioner has not established that the PCR court unreasonably determined the facts under § 2254(d)(2). The court's findings were not objectively unreasonable and the ...

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