Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Runningeagle v. Ryan

United States Court of Appeals, Ninth Circuit

June 10, 2016

Sean Bernard Runningeagle, Petitioner-Appellant,
v.
Charles L. Ryan, Director, Arizona Department of Corrections, Respondent-Appellee.

          Argued and Submitted February 10, 2016 Pasadena, California

         Appeal from the United States District Court for the District of Arizona D.C. No. CV-98-01903-PGR Paul G. Rosenblatt, Senior District Judge, Presiding

          Jennifer Y. Garcia (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Arizona Federal Public Defender's Office, Phoenix, Arizona, for Petitioner-Appellant.

          Jon G. Anderson (argued), Assistant Attorney General, Capital Litigation Section; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Arizona Attorney General's Office, Phoenix, Arizona, for Respondent-Appellee.

          Before: Harry Pregerson, Kim McLane Wardlaw, and Carlos T. Bea, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The panel affirmed the district court's denial, on limited remand, of claims of ineffective assistance of counsel brought in a habeas corpus petition in a capital case.

         The district court originally denied the ineffective assistance claims as procedurally barred. On appeal, the panel affirmed the district court's denial of the habeas petition but stayed the court of appeals' mandate and ordered a limited remand to allow the district court to reconsider its prior rulings in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012), which announced a new equitable rule allowing a petitioner to show cause for the procedural default of certain ineffective assistance claims. On limited remand, the district court concluded that the petitioner did not show cause under Martinez, and thus did not excuse the procedural default.

         To show cause under Martinez, a petitioner must demonstrate that the state system in which he initially brought his ineffective assistance claims required that they be raised in initial-review collateral proceedings, and did not permit the petitioner to raise them on direct appeal. He must also show that the attorney who represented him in post-conviction review proceedings performed deficiently and thereby prejudiced his case under the standards of Strickland v. Washington.

         The panel held that the district court erred in concluding that Martinez was inapplicable because, at the time of the petitioner's direct appeal, Arizona allowed defendants to bring ineffective assistance claims on direct appeal. The panel concluded that in fact, during the relevant period, Arizona did require petitioners to bring ineffective assistance claims in initial-review collateral proceedings, not expressly, but by virtue of the operation of its procedural system. Nonetheless, the petitioner failed to show that his post-conviction review counsel performed deficiently and to his prejudice.

         The panel affirmed the district court's judgment and order, and its continued denial of the habeas petition. The panel lifted the stay of the mandate and ordered that it would issue in the regular course.

          OPINION

          WARDLAW, Circuit Judge:

         In 1988, petitioner Sean Bernard Runningeagle was convicted of two counts of first degree murder in Arizona state court. He was sentenced to death in 1989, and the Arizona Supreme Court affirmed his conviction, sentence, and the denial of his state petition for post-conviction relief. State v. Runningeagle (Runningeagle I), 859 P.2d 169 (Ariz. 1993). Runningeagle then petitioned for a federal writ of habeas corpus, which the district court denied. In 2012, while Runningeagle's appeal of that decision was pending before us, the Supreme Court decided Martinez v. Ryan, 132 S.Ct. 1309 (2012). Martinez announced a new equitable rule that allows a petitioner to show cause for the procedural default of certain ineffective assistance of counsel ("IAC") claims. We affirmed the district court's denial of Runningeagle's petition, but also stayed the mandate and ordered a limited remand to allow the district court to reconsider its prior rulings that several of Runningeagle's IAC claims were procedurally defaulted in light of Martinez. Runningeagle v. Ryan (Runningeagle II), 686 F.3d 758 (9th Cir. 2012). On remand, the district court concluded that Runningeagle did not show cause under Martinez, and thus did not excuse the procedural default of the IAC claims. Runningeagle appeals.

         To show cause under Martinez, a petitioner must demonstrate, inter alia, that the state system in which he initially brought his IAC claims required that they be raised in initial-review collateral proceedings, and did not permit the petitioner to raise them on direct appeal. He must also show that the attorney who represented him in post-conviction review ("PCR") proceedings performed deficiently and thereby prejudiced his case under the standards of Strickland v. Washington, 466 U.S. 668 (1984).

         We hold that the district court erred in concluding that Martinez was inapplicable because, at the time of Runningeagle's direct appeal, Arizona allowed defendants to bring IAC claims on direct appeal. To the contrary: during the relevant period, Arizona actually did require petitioners to bring IAC claims in initial-review collateral proceedings, not expressly, but by virtue of the operation of its procedural system. See Trevino v. Thaler, 133 S.Ct. 1911, 1915 (2013). The proceedings in this very case demonstrate the operation of Arizona's requirement. However, Runningeagle fails to show that his PCR counsel performed deficiently and to his prejudice. His IAC claims therefore remain in procedural default, and do not serve as a basis for federal habeas relief. We affirm the district court's denial of the petition.

         I. Factual Background We again[1] take the facts as recited by the Arizona Supreme Court in its 1993 opinion:

In the early morning of December 6, 1987, Runningeagle, [his cousin Corey] Tilden, and their two friends Orva and Milford Antone, were driving around Phoenix. Runningeagle wanted parts for his car, so the foursome stopped at the Davis house, which had a car parked outside. Runningeagle, Tilden and Orva got out of the car, while Milford remained passed out drunk in the back seat. Runningeagle used his large hunting knife to remove two carburetors from the Davis car. Orva put them and an air scoop in the trunk of Runningeagle's car. Tilden and Runningeagle also stole a floor jack and tool box. Orva took a bicycle from the open garage.
Herbert and Jacqueline 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 Runningeagle and Tilden approached Mr. Williams. Runningeagle concealed his knife by his side. Tilden carried a large, black flashlight. Runningeagle then began to tease and scare Mr. Williams with the knife. Mr. Williams retreated and told Runningeagle 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 then 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. Runningeagle 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 Runningeagle's palm print on the clothes dryer next to the bodies.
Runningeagle 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. Tilden, too, spoke about the crimes and informed Runningeagle that an account of the burglary was on the radio and that "they got there an hour after we left."
When the defendants were arrested, the police found, among other things, the Davis air scoop with Runningeagle'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 Runningeagle's prints on the wheel rim. A Phoenix Police Department criminalist matched Runningeagle'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.
Runningeagle, Tilden, and Orva Antone were indicted on two counts of first degree murder, and one count each of first degree burglary of a residence, second degree burglary of a residence, third degree burglary of a car, theft of property valued between $500 and $1000, and theft of property valued between $250 and $500. Orva Antone pleaded guilty to burglary and testified for the state at the joint trial.
After a five-week trial, Runningeagle and Tilden were convicted on July 27, 1988. Runningeagle was found guilty 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. Tilden was convicted of the same charges except for third degree burglary.

Runningeagle I, 859 P.2d at 171-72.

         II. Procedural Background

         A. Sentencing and Special Verdict

         Baltazar Iniguez was appointed to represent Runningeagle at trial and sentencing. Iniguez gathered a total of 15 letters from Runningeagle's family members and acquaintances, which he submitted as mitigation evidence. Iniguez also presented the direct testimony of several witnesses on Runningeagle's behalf at evidentiary hearings, and he examined or cross-examined several of Tilden's witnesses, who were Runningeagle's family members or acquaintances, at these hearings.[2]

         Arizona probation officers prepared two presentence reports ("PSRs") concerning Runningeagle, which contained information about his family and social background, criminal history, health, and use of alcohol and illicit substances. These reports quoted Iniguez, who vouched for Runningeagle's good character, stated that the murders were fueled by alcohol, and recommended leniency. It does not appear from the record that Iniguez gathered outside information for the probation officers or disputed the accuracy of the PSRs.

         Iniguez successfully petitioned the court under Arizona Rule of Criminal Procedure 26.5 for two mental health examinations of Runningeagle. These examinations were conducted by Doctors M.B. Bayless and Francis A. Enos. Dr. Bayless diagnosed Runningeagle with antisocial personality disorder, and Dr. Enos found that his behavioral pattern was "sociopathic rather than neurotic or psychotic." Because Iniguez had requested these examinations under Rule 26.5-against the advice of Tilden's attorney, Roland J. Steinle III, who had recommended requesting court funds for private examinations[3]-Iniguez's attempts to exclude Dr. Bayless's and Dr. Enos's reports were unsuccessful, and he was required to file them with the court.

         Before the final sentencing hearing, Iniguez submitted an eight-page sentencing memorandum. Iniguez argued that Runningeagle should be spared the death penalty, and should instead receive two concurrent life sentences. Iniguez contended that Runningeagle's mind was impaired by alcoholic "jungle juice" at the time of the murders; there was insufficient evidence that Runningeagle, rather than Tilden, committed the murders; and the murders were out of character. Iniguez also sought to rebut the anticipated aggravating factors relied upon by the state. He argued the killings were not "cruel, heinous and depraved, " there was no evidence of an expectation of pecuniary gain, and they should not be considered two separate killings because both occurred within a "very short period of time, " that is, that each murder was committed during the commission of the other. Finally, Iniguez claimed three mitigating factors were present: Runningeagle was young, intoxicated, and "under unusual or substantial duress." Iniguez did not present new evidence in support of the memorandum, and relied instead on the PSRs and trial testimony and evidence.

         Runningeagle and Tilden were jointly sentenced at a February 3, 1989 hearing. The court issued a special verdict, from which it read at the hearing, sentencing Runningeagle to death and Tilden to two consecutive terms of life imprisonment. In imposing Runningeagle's sentence, the court found that the state had proved three statutory aggravating circumstances: that the murders were committed with the expectation of pecuniary gain; that they were "especially cruel, heinous and depraved"; and that Runningeagle was convicted of one or more homicides during the commission of the offense. See Ariz. Rev. Stat. § 13-703(F)(5), (6), (8) (1988). Upon considering the evidence submitted by Iniguez, the court found that the only mitigating circumstance for the murder counts was Runningeagle's age, "one day short of 19, " which was not sufficient to call for leniency.[4] The court found that the testimony and letters from Runningeagle's family and friends did not compel mitigation. The court stated that Runningeagle had not shown any feeling for family or friends, that he was concerned only with "himself and his own appetites, " and that the psychological reports indicated that he did not "have the types of feelings or emotions that people usually have for family or friends." Although the court quoted at length from the Bayless and Enos reports at the sentencing hearing, and also considered a psychological report prepared by Doctor Roger M. Martig for prior Juvenile Court proceedings, the court stated that it did not consider these as aggravating circumstances, but neither did it find that they weighed in favor of mitigation.

         In sparing Tilden death, the court found "significant and considerable differences" between him and Runningeagle. The court found that the state had not proved beyond a reasonable doubt that Tilden participated in the murders with the expectation of pecuniary gain, though the other two aggravating factors were present. The court noted that Tilden had a difficult childhood, but it did not expressly give weight to this circumstance. It found that psychological evidence that Tilden suffered from a personality disorder was not, in itself, a mitigating circumstance. The court found highly significant the great weight of the evidence suggesting that Runningeagle, and not Tilden, had personally inflicted the fatal stab wounds. The court concluded that Tilden had followed his charismatic, older, more intelligent cousin on the night of the murders, and that Tilden, unlike Runningeagle, had a conscience and was capable of rehabilitation. The court stated, however, that "these comparisons were not used in aggravation of defendant Runningeagle's sentence."

         B. PCR and Appellate Proceedings

         Following sentencing, Runningeagle commenced PCR proceedings pro se by filing a form petition for post-conviction relief and a petition for writ of coram nobis. The coram nobis petition alleged that Iniguez had failed to perform an adequate investigation, mount an effective defense, or object to inadmissible evidence and prosecutorial misconduct. On March 23, 1990, John M. Antieau was appointed to represent Runningeagle in the PCR and appellate proceedings.[5] The Arizona Supreme Court stayed Runningeagle's direct appeal pending determination of his PCR petition. The same judge who had presided over trial and sentencing also presided over the initial PCR proceedings.

         Over the government's objection, the PCR court granted Antieau's motion for the appointment of an investigator, Mary Durand, and a mental health expert, Doctor Otto Bendheim. Antieau filed a supplemental petition challenging Runningeagle's sentence on eleven grounds, including two IAC claims for failure to move to sever Runningeagle's trial from Tilden's, and for a deficient closing argument. Antieau also filed a second supplemental petition in which he challenged Dr. Bayless's and Dr. Enos's diagnoses of antisocial personality disorder, and requested $1500 in additional funds so a new doctor, Bendheim, could interview Runningeagle in prison.

         On April 23, 1991, the PCR court summarily dismissed Runningeagle's petitions. It found that, in his initial pro se petition, Runningeagle had not raised a "'colorable claim' . . . of ineffective assistance of trial counsel, " and that even if his complaints were valid, the evidence against him was overwhelming, and the result would not have been different. The court found that the claims raised in the supplemental petitions filed by Antieau were "still raisable on direct appeal." It denied the request for additional funding for Dr. Bendheim to prepare a report, which the court viewed as "not appropriate in the context of post-conviction relief proceedings." In addressing this issue, the court opined that Runningeagle appeared to "take[]one aspect of the Court's sentencing as if it were the only basis for the Court's determination of the appropriate and lawful sentence." The court denied a motion for rehearing filed by Antieau.

         Antieau petitioned the Arizona Supreme Court for review of the PCR court's denial of relief. This petition was consolidated with Runningeagle's direct appeal, which was also filed by Antieau. On April 20, 1993, the Arizona Supreme Court affirmed Runningeagle's conviction and sentence and the denial of his PCR petition. It reasoned that, "[b]ecause Runningeagle failed to show that counsel's conduct was deficient, the trial court properly dismissed his petition for post-conviction relief."

         C. Subsequent Proceedings

         After the United States Supreme Court denied certiorari and the Arizona Supreme Court issued its mandate, Runningeagle initiated pro se a second PCR proceeding, which was ultimately dismissed because he failed to timely file a petition. Runningeagle next filed a federal habeas petition, which was dismissed without prejudice to allow him to exhaust additional claims in state court.

         Runningeagle then initiated a third PCR proceeding in the Arizona Superior Court: this was the state proceeding in which the claims raised on this appeal were found procedurally defaulted. In a 224-page petition filed by a new attorney, Runningeagle claimed, inter alia, that Iniguez had performed deficiently by failing to (i) investigate and present key mitigation evidence; (ii) obtain a competent and independent mental status examination; (iii) develop and advance a theory that Tilden actually committed the homicides; and (iv) request the appointment of a second attorney. On October 21, 1996, the Superior Court dismissed Runningeagle's claims and the petition. It held that, even if the mitigation-evidence claims were "colorable, " they were procedurally defaulted under Arizona Rule of Criminal Procedure 32.2(a)(3), and the inculpation and second-counsel claims were in default and, alternatively, not colorable.[6] The Arizona Supreme Court denied Runningeagle's petition for review of these rulings.

         On April 15, 1999, Runningeagle filed the amended federal habeas petition now before us. He raised, among others, claims that Iniguez was ineffective because he failed to retain, use, and competently prepare independent mental health experts, or investigate and present mitigating evidence at sentencing ("mitigation-evidence IAC claim"), inculpate Tilden ("inculpation IAC claim"), and request a second counsel ("second-counsel IAC claim"). On February 6, 2004 and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.