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Ramirez v. Ryan

United States District Court, D. Arizona

September 14, 2016

David Martinez Ramirez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         On December 2, 2014, the Ninth Circuit Court of Appeals remanded this case for reconsideration of Claim 34 in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012). (Doc. 249.) Claim 34 alleges ineffective assistance of counsel at sentencing. Martinez holds that the ineffective assistance of post-conviction counsel can serve as cause for the procedural default of claims of ineffective assistance of trial counsel. This Court previously found Claim 34 defaulted and barred from federal review.

         Ramirez filed his supplemental Martinez brief on March 4, 2015. (Doc. 256.) Respondents filed a response in opposition and Ramirez filed a reply. (Docs. 257, 260.) For the reasons set forth below, Claim 34 remains procedurally barred. Ramirez's request for evidentiary development is denied.

         I. BACKGROUND

         In 1990, Ramirez was convicted of two counts of premeditated first-degree murder for the deaths of Mary Ann Gortarez and her 15-year-old daughter Candie. See State v. Ramirez, 178 Ariz. 116, 119-21, 871 P.2d 237, 240-42 (1994) (describing facts of the crimes).

         In the early morning hours of May 25, 1989, neighbors heard noise coming from the Gortarez apartment and called 911. Officers arrived and entered the apartment. They saw Mary Ann's body on the living room floor. Ramirez, shirtless and covered in blood, approached the officers. He appeared to be intoxicated.

         Candie's body was found naked in one of the bedrooms. There was blood throughout the apartment. A knife blade was found in the front hall, a cake knife was found near Mary Ann's arm, part of the cake knife handle and a handle matching the blade found in the hall were in her hair, a pair of bloody scissors was found in the bathroom, and in a rear hallway there was a blood-soaked box cutter.

         Mary Ann had been stabbed 18 times in the neck, and in the back and knee. She had defensive wounds on her hand and forearms. Her daughter had been stabbed 15 times in the neck. Vaginal swabs taken from Candie tested positive for semen; Petitioner could not be excluded as the donor of the semen.

         At sentencing, the judge found three aggravating circumstances: Ramirez had two prior violent felony convictions, under A.R.S. § 13-703(F)(2); Ramirez committed the murders in an especially cruel, heinous, or depraved manner, A.R.S. § 13-703 (F)(6); and Ramirez committed multiple homicides during the same episode, A.R.S. § 13-703(F)(8). (Doc 257-2, Ex. N.) The judge found one statutory mitigating circumstance and seven non-statutory circumstances, but determined that they were not sufficiently substantial to warrant leniency. (Id.)

         The court sentenced Ramirez to death on both murder counts. The Arizona Supreme Court affirmed Ramirez's convictions and sentences on direct appeal. Ramirez, 178 Ariz. 116, 871 P.2d 237. Ramirez filed a Petition for Post-conviction Relief (PCR), which the trial court denied in its entirety. The Arizona Supreme Court summarily denied review.

         On June 26, 1997, Ramirez filed his initial habeas petition in this Court. (Doc. 1.) After briefing, the Court issued a ruling on the procedural status of the twelve claims raised in Ramirez's amended petition, dismissing all except portions of Claims 1 and 2. (Doc. 26.) On July 6, 2004, Ramirez filed a supplemental petition alleging additional claims. (Doc. 84.)

         The parties briefed the remaining claims. (Docs. 90, 97, 103, 110.) The Court subsequently granted a stay of the sentencing claims, to allow Petitioner to seek relief from his death sentence in state court based on a claim of mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). (Doc. 119.) During the stay, the Court issued a ruling denying evidentiary development and dismissing Ramirez's conviction claims. (Doc. 140.) The state court found that Ramirez was not mentally retarded under Arizona law. (Doc. 232-6.)

         Ramirez filed a notice of PCR petition in state court regarding the Atkins claim and a separate successive PCR notice raising five additional claims. When those five claims had been exhausted in state court, Ramirez sought to amend the petition to include them in this Court. (Doc. 145.) The Court granted amendment only as to Claim 34 (Doc. 158), and Ramirez filed a second amended petition incorporating that claim (Doc. 162).

         The Court initially concluded that Claim 34 had been procedurally defaulted in state court based on an independent and adequate procedural bar. (Doc. 207.) After further briefing, the Court concluded that Ramirez had demonstrated neither cause and prejudice nor a fundamental miscarriage of justice to excuse default of the claim. (Doc. 242.)

         II. APPLICABLE LAW

         Federal review is generally not available for a state prisoner's claims when those claims have been denied pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In such situations, federal habeas review is barred unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. Id. Coleman held that ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim. Id.

         In Martinez, however, the Court announced a new, “narrow exception” to the rule set out in Coleman. The Court explained that:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

132 S.Ct. at 1320; see also Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013).

         Accordingly, under Martinez a petitioner may establish cause for the procedural default of an ineffective assistance claim “where the state (like Arizona) required the petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland . . .' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318); see Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc); Dickens v. Ryan, 740 F.3d 1302, 1319-20 (9th Cir. 2014) (en banc); Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc).

         In Clabourne, the Ninth Circuit summarized its Martinez analysis. To demonstrate cause and prejudice sufficient to excuse the procedural default, a petitioner must make two showings:

First, to establish ‘cause, ' he must establish that his counsel in the state postconviction proceeding was ineffective under the standards of Strickland. Strickland, in turn, requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.

Clabourne, 745 F.3d at 377 (citations omitted). Determining whether there was a reasonable probability of a different outcome “is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective.” Id. at 377-78. “PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).

         To establish prejudice, the petitioner must demonstrate that his underlying ineffective assistance of counsel claim is substantial, or “has some merit.” Id. A claim is substantial if it meets the standard for issuing a certificate of appealability. Martinez, 132 S.Ct. 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). According to that standard, “a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich, 740 F.3d at 1245 (quoting Miller-El, 537 U.S. at 336).

         Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668 (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. “In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). The “totality of the available evidence” includes “both that adduced at trial, and the evidence adduced” in subsequent proceedings. Id. at 536 (quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000)).

         III. DISCUSSION

         In Claim 34, Ramirez alleges that he received ineffective assistance of counsel at sentencing. (Doc. 162 at 105.) The parties agree, though for different reasons, that the Court should reach the merits of this claim. . (See Doc. 257 at 1.) Respondents contend that review of the merits shows that PCR counsel did not perform ineffectively in failing to raise the claim in state court. (Id.) Ramirez argues that default of the claim is excused by PCR counsel's ineffective performance and therefore the claim must be reviewed de novo.[1] (Doc. 256 at 2-3.) As Respondents note, the parties' arguments lead to the same place: an analysis of Claim 34.

         Ramirez alleges that counsel was ineffective for failing to discover and present significant mitigating evidence. (Doc. 162 at 105.) Respondents argue that counsel's performance at sentencing was not deficient and that Ramirez was not prejudiced because the new information he offers is “de minimis, without significant probative value, and cumulative” to the evidence presented at sentencing. (Doc. 257 at 42-55.)

         As discussed next, the Court, after reviewing the parities' arguments and the new evidence submitted by Ramirez, finds that trial counsel did not perform at a constitutionally ineffective level during Ramirez's sentencing.

         A. Additional facts

         Ramirez originally chose to represent himself. After jury selection, he requested that advisory counsel, Mara Siegel, be appointed to represent him going forward. The court granted the request and Siegel represented Ramirez at trial and sentencing.

         Following the guilty verdicts, the trial judge, Maricopa County Superior Court Judge Thomas O'Toole, appointed Dr. Mickey McMahon “to test and evaluate the defendant's current mental health and, if such is deemed appropriate, conduct further diagnostic testing and evaluation.”[2] (Doc. 257-1, Ex. E.)

         Judge O'Toole originally set the sentencing for September 21, 1990, within 60 days of the verdicts. (Id., Ex. D.) At Siegel's request, he continued the sentencing to October 19, 1990. (Id., Ex. F.) Subsequently the court denied Ramirez's request to continue the Aggravation/Mitigation Hearing beyond the October 19 date, but agreed to schedule the imposition of sentence for a subsequent date. (Id., Ex. G.) On October 19, the trial court permitted Ramirez to continue part of the mitigation presentation to November 30. (Id., Ex. J at 112-13.)

         1. Dr. ...


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