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Jones v. Ryan

United States District Court, D. Arizona

January 18, 2017

Barry Lee Jones, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

         DEATH PENALTY CASE

          ORDER

          TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on limited remand from the Ninth Circuit Court of Appeals. (See Doc. 158.)[1] The court of appeals has ordered this Court to reconsider, in the light of intervening law, including Martinez v. Ryan, 132 S.Ct. 1309 (2012), Petitioner's claim of ineffective assistance of counsel (“IAC”) in failing to conduct an adequate investigation at the guilt and penalty phases of trial (“Claim 1D”).[2]

         This Court ordered supplemental briefing to address whether cause exists under Martinez to excuse the procedural default of Claim 1D, and whether Petitioner is entitled to habeas relief under 28 U.S.C. § 2254 on the claim. (Doc. 161.) The Court also ordered Petitioner to include any requests for evidentiary development with the supplemental briefing. (Id.)

         Petitioner filed a supplemental brief addressing the applicability of Martinez to Claim 1D, arguing that post-conviction counsel acted ineffectively in litigating claims against trial counsel in state court, and requesting evidentiary development and an evidentiary hearing on the procedural default of these claims. (Doc. 167.) Respondents filed a response, and Petitioner filed a reply. (Docs. 175, 180.) For the reasons set forth below, the Court finds that an evidentiary hearing is necessary to determine whether Petitioner can establish cause to excuse the procedural default of Claim 1D.

         PROCEDURAL BACKGROUND

         On April 14, 1995, Petitioner was convicted of one count of sexual abuse, three counts of child abuse, and felony murder. State v. Jones, 188 Ariz. 388, 391, 937 P.2d 310, 313 (1997). The convictions were predicated on the physical and sexual injuries inflicted on four-year-old Rachel Gray, and the failure to obtain medical care for her injuries, which led to her death. The trial judge found the existence of two aggravating factors: that the murder was especially cruel and that the victim was under the age of 15. The judge found no mitigating factors sufficiently substantial to call for leniency, and sentenced Petitioner to death for the murder conviction. The Arizona Supreme Court affirmed Petitioner's convictions and sentences. Jones, 188 Ariz. 388, 937 P.2d 310. Petitioner filed a petition for post-conviction relief (“PCR”) with the trial court. After an evidentiary hearing, the PCR petition was denied in its entirety. (ROA-PCR 31.)[3] The Arizona Supreme Court summarily denied Petitioner's Petition for Review. (PR 7.)

         Petitioner initiated this federal habeas proceeding on November 5, 2001 (Doc. 1), and filed an amended petition on December 23, 2002, raising 21 claims. (Doc. 58). In Claim 1D of the petition, he alleged, in part, that counsel was ineffective for:

1) failing to adequately investigate potential other suspects and crucial witnesses; failing to raise legal challenges to eyewitness identifications; and failing to adequately challenge blood-spatter testimony;
2) failing to hire a forensic pathologist to challenge the State's evidence regarding the nature and timing of the victim's injuries; and
3) failing to have a qualified mental health expert examine Petitioner before sentencing; failing to adequately explain the effect of Petitioner's drug addiction to the sentencing court; and failing to investigate and present mitigating evidence of Petitioner's social history.

(Id. at 37-96.) The parties briefed the claims (Docs. 69, 79) and motions for evidentiary development (Docs. 89, 90, 101, 102, 108, 109, 113). Petitioner asserted PCR counsel's ineffectiveness as cause to excuse the procedurally defaulted portion of Claim 1D. (Doc. 79, at 25, 60-62.) This Court determined, consistent with then-governing Supreme Court precedent, see Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), that PCR counsel's purported ineffectiveness did not constitute cause for the procedural default because “there is no constitutional right to counsel in state PCR proceedings.” (Doc. 115, at 9- 11.) The Court ordered supplemental briefing regarding Petitioner's allegation that it would be a fundamental miscarriage of justice not to review on the merits the entirety of Claim 1D. (Id. at 40.) The Court denied relief on September 29, 2008, concluding that Petitioner had not satisfied the fundamental miscarriage of justice standard to overcome the default of Claim 1D. (Doc. 141 at 23.)

         While Petitioner's appeal from this Court's denial of habeas relief was pending, the Supreme Court decided Martinez v. Ryan, holding that where IAC claims must be raised in an initial PCR proceeding, failure of counsel in that proceeding to raise a substantial trial IAC claim may provide cause to excuse the procedural default of the claim. 132 S.Ct. at 1320. Subsequently, Petitioner moved the Ninth Circuit to stay his appeal and grant a limited remand in light of Martinez. The Ninth Circuit granted the motion and remanded for reconsideration of Claim 1D, stating that “Claim 1D is for purposes of remand substantial.” (Doc. 158) (citing Martinez, 132 S.Ct. 1309; Trevino v. Thaler, 133 S.Ct. 1911 (2013); Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc); Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc)).

         In September 2015, the parties completed supplemental briefing in this Court.

         DISCUSSION

         Petitioner seeks reconsideration based on Martinez for allegations in Claim 1D that trial counsel was ineffective for: (1) failing to investigate and present evidence to test the veracity or reliability of any of the State's evidence, including the medical evidence and the question of the timeline between injury and death; and (2) failing to conduct a reasonably sufficient mitigation investigation for sentencing.[4]

         To establish cause to excuse the default of Claim 1D, Petitioner argues that PCR counsel performed deficiently within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), when he failed to investigate and present a substantial claim that the guilt phase and sentencing phase performance of trial counsel was constitutionally deficient. (Doc. 167 at 141-156.) Respondents assert that Petitioner has not shown that PCR counsel was ineffective in failing to raise Claim 1D because PCR counsel raised multiple IAC claims and attempted to obtain additional resources. Respondents also argue that Claim 1D fails on the merits and therefore Petitioner cannot establish cause under Martinez because he was not prejudiced by PCR counsel's performance as there was no “reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” (Doc. 175 at 14) (quoting 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)). After due consideration the Court finds that an evidentiary hearing is necessary to determine whether Petitioner can establish cause to excuse the procedural default of Claim 1D.

         I. Applicable Law

         Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, habeas review of a defaulted claim is barred unless a petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Ordinarily, “cause” to excuse a default exists if a petitioner can demonstrate that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Id. at 753. In Coleman, the Court 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 established a “narrow exception” to the rule announced in Coleman. The Court explained:

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, 133 S.Ct. at 1918 (noting that Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of counsel claim if “the claim . . . was a ‘substantial' claim [and] the ‘cause' consisted of there being ‘no counsel' or only ‘ineffective' counsel during the state collateral review proceeding”) (quoting Martinez, 132 S.Ct. at 1318-19, 1320-21).

         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, 745 F.3d at 377; Dickens, 740 F.3d at 1319-20; Detrich, 740 F.3d at 1245.

         In Clabourne, the Ninth Circuit summarized its Martinez analysis.[5] 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. Second, “to establish ‘prejudice, ' the petitioner must establish that his “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.” Id.

         Under Martinez, a claim is substantial if it meets the standard for issuing a certificate of appealability. Martinez, 132 S.Ct. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). The United States Supreme Court has defined “substantial” as a claim that “has some merit.” Martinez, 132 S.Ct. at 1318. Stated inversely, a claim is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.” Martinez, 132 S.Ct. at 1319.

         Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland, 466 U.S. at 674. 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. The court “cannot ‘second-guess' counsel's decisions or view them under the ‘fabled twenty-twenty vision of hindsight.'” Edwards v. Lamarque, 475 F.3d 1121, 1127 (9th Cir. 2007) (quoting LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th Cir. 1998)). “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.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998).

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

         II. Claim 1D (Guilt Phase)

         Petitioner alleges his Sixth Amendment right to effective assistance of counsel was violated by trial counsels' failure to conduct a sufficient trial investigation and for inadequately investigating the police work, medical evidence, and timeline between Rachel's fatal injury and her death. Petitioner further alleges that post-conviction counsel performed deficiently within the meaning of Strickland when he failed to investigate and present this substantial IAC claim, thus excusing its procedural default.

         A. Relevant Facts

         This Court previously summarized the facts relevant to Claim 1D (Guilt Phase) in its Order finding that Petitioner's new evidence was insufficient to demonstrate a fundamental miscarriage of justice to excuse the procedural default of the claim. Therefore, most of the factual background, as well as much of the new evidence, set forth herein repeats what has previously been set out in the Court's September 2008 order addressing Claim 1D. (See Doc. 141 at 9-16.)

         The main thrust of the prosecution's case against Petitioner had been that Rachel was solely in his care on the afternoon of May 1, 1994, when her injuries, including the fatal abdominal injury, were inflicted. The State argued that no other adult had the opportunity to inflict the injuries, which the experts deemed non-accidental. Petitioner's defense was that he had no motive to commit the crime, the evidence was all circumstantial, and the State failed to prove beyond a reasonable doubt that he had inflicted the injuries.

         Rachel's body was examined by Steven Siefert, an emergency room doctor; by Sergeant Sonya Pesquiera of the Pima County Sheriff's Office; and by the medical examiner, John Howard. Dr. Siefert estimated that Rachel had been dead for two to three hours when she was brought to the hospital at 6:16 a.m. on May 2, 1994. (RT 4/6/95 at 77, 80.) Rachel's body was covered with bruises and abrasions, primarily on the front of her body and across her face and forehead, but also on her back, arms, and legs. (Id. at 81.)

         Rachel had a large bruise on each side of her forehead, as well as intense coloration on the outer edge of her right eye and discoloration below the eyes. (Id. at 95- 96.) Dr. Howard assessed the purple coloration on Rachel's face as injuries occurring probably one day prior to death, but there was also some green discoloration which would have been present for several days. (RT 4/12/95 at 116.) Rachel had a head laceration, above and behind her left ear, which was one inch long and went down to the skull bone; Dr. Howard assessed it as having been inflicted one to two days prior to death. (Id. at 116-17.) Rachel had bruising around the left side of her face and behind her ear, as well as bleeding into both ear drums, consistent with a slap or blow to the side of the head. (RT 4/6/95 at 90-91; RT 4/12/95 at 140-41.) Rachel also sustained internal bleeding due to blunt force trauma to the back of her neck, as well as diffuse bleeding into the deep layers of her whole scalp. (RT 4/12/95 at 137-38.)

         Rachel had four or five small bruises on her right forearm and several on her right hand, as well as six bruises on her left forearm and hand, injuries typically associated with trying to ward off an impact (defensive type wounds). (RT 4/6/95 at 85-87, 88-89; RT 4/12/95 at 39-40, 150-51.) Dr. Howard opined that the bruises and abrasions on her hand and arm were inflicted approximately one day prior to death. (RT 4/12/95 at 113- 14.) This included swelling in her left middle finger that indicated injury to bone or ligaments; that injury would have been painful and noticeable within an hour of its infliction. (RT 4/6/95 at 89, 104-05; RT 4/12/95 at 114.) Dr. Howard identified abrasions and contusions on Rachel's right and left thigh, both knees, and her right leg; they varied in appearance from less than a day old to approximately five days old. (RT 4/12/95 at 113.) He indicated that much of the bruising on Rachel's front side was consistent with having been inflicted by knuckles but he could not identify with any particularity what actually was used to inflict the injuries. (RT 4/12/95 at 126, 160.) Rachel had contusions and abrasions on her back, her buttocks, and on the back of her left thigh, which were inflicted within one to two days prior to her death. (Id. at 112; RT 4/6/95 at 93.) On her front torso, Rachel had 20 to 30 bruises, large areas of abrasions, and a red bruise area under her right arm. (RT 4/6/95 at 93-94; RT 4/12/95 at 115.) Some of these bruises were recent, within the prior day to two days, while others were of a coloration indicating an origin of several days prior to death. (RT 4/12/95 at 115.) There was a linear bruise pattern to the right of her navel; this injury was consistent with the pry bar found underneath the driver's seat of Petitioner's van but could have been caused by many different objects. (RT 4/12/95 at 78, 128, 160.)

         Rachel had blunt force injuries to her labia, bruising and scrapes, and her vagina had a half-inch tear extending down from it. (Id. at 134.) The medical examiner determined that the injury to Rachel's genitalia occurred about one day prior to her death. (Id. at 133.) These injuries were non-accidental, would have been ...


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