United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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
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.
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.
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.)
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.
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.)
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.)
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
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.)
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.
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).
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)
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.
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).
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.
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.
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
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. (Doc. 256 at 2-3.) As
Respondents note, the parties' arguments lead to the same
place: an analysis of Claim 34.
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.)
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.
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.
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.” (Doc. 257-1, Ex. E.)
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