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Hooper v. Ryan

United States District Court, D. Arizona

May 30, 2018

Murray Hooper, Petitioner,
Charles L. Ryan, et al., Respondents.


          Honorable Stephen M. McNamee, Senior United States District Judge.

         This case is before the Court on remand from the Ninth Circuit Court of Appeals. (Doc. 140.) The Court is directed to reconsider, in the light of Martinez v. Ryan, 566 U.S. 1 (2012), Claim 4 of Hooper's habeas petition, alleging ineffective assistance of counsel at sentencing. (Id.) The Court is also to reconsider its order denying leave to amend the petition to include Claim 16, alleging that Hooper's Arizona death sentence is based on invalid Illinois convictions. (Id. at 2.)

         The issues have been briefed. (Docs. 147, 152, 157.) For the reasons set forth below, the Court finds that Claim 4 remains procedurally defaulted and barred from federal review and that amendment of the petition to include Claim 16 remains futile.


         On December 24, 1982, a jury convicted Hooper and William Bracy of two counts of first degree murder, one count of attempted murder, criminal conspiracy, and other associated crimes. See State v. Hooper, 145 Ariz. 538, 543, 703 P.2d 482, 487 (1985); State v. Bracy, 145 Ariz. 520, 524-25, 703 P.2d 464, 469-70 (1985).

         Pat Redmond and Ron Lukezic were partners in a successful printing business in Phoenix called Graphic Dimensions. In the summer of 1980, Graphic Dimensions was presented with the possibility of some lucrative printing contracts with certain hotels in Las Vegas, but these deals fell through.

         Robert Cruz, a businessman with ties to Chicago and Las Vegas, wanted Redmond killed in order to obtain his interest in the printing business and pursue the Las Vegas contracts. In September 1980, Cruz asked Arnold Merrill if he would be willing to kill Redmond for $10, 000. Merrill declined, but arrangements were made with others. In early December 1980, Cruz and Merrill picked up Hooper and Bracy who arrived on a flight from Chicago.

         Hooper and Bracy stayed in the Phoenix area for several days. Merrill took the pair to see Cruz, who gave Bracy a stack of $100 bills, some of which Bracy gave to Hooper. At Cruz's direction, Merrill took Bracy and Hooper to a gun store owned by Merrill's brother, Ray Kleinfeld. Hooper picked out a large knife and Bracy told Kleinfeld to put it on Cruz's account. Kleinfeld gave Bracy a bag containing three pistols. While Petitioner and Bracy were staying at Merrill's home, Merrill introduced them to Ed McCall.

         A few days later, Merrill drove Hooper and Bracy to a cocktail lounge patronized by Pat Redmond. When Redmond departed, they followed his car. While following Redmond, Merrill noticed Hooper pointing a gun at Redmond's vehicle, getting ready to fire. Merrill swerved from Redmond's car to prevent the shooting. After the failed shooting, McCall told Merrill that he was “joining up” with Bracy and Petitioner.

         On the evening of December 31, 1980, Hooper, Bracy, and McCall went to Redmond's home and forced their entrance at gunpoint. Redmond, his wife Marilyn, and his mother-in-law Helen Phelps were present. The three victims were taken into a bedroom where they were robbed of valuables, bound with surgical tape, and gagged. Each was shot in the head. Pat Redmond's throat was slashed. Pat Redmond and Helen Phelps died. Marilyn Redmond survived.

         Hooper and Bracy were convicted and sentenced to death for the murders. On direct appeal, the Arizona Supreme Court affirmed Petitioner's convictions and death sentence. See Hooper, 145 Ariz. 538, 703 P.2d 482.

         Hooper sought post-conviction relief (“PCR”) in the trial court. (ROA 1494, 1529, 1540, 1570, 1581.) After discovery and the filing of affidavits, the PCR court summarily denied Hooper's first PCR petition. (ROA 1574, 1596.) Hooper moved for rehearing, which was denied. (ROA 1597, 1599.) The Arizona Supreme Court denied Hooper's petition for review. (ROA 1600, 1602.) PCR counsel did not raise a claim of ineffective assistance of counsel at sentencing.

         In 1991, Hooper filed a petition for writ of habeas corpus in this Court, No. CIV 91-1495-PHX-SMM. The Court dismissed the petition without prejudice to allow Hooper to return to state court to exhaust additional claims. Hooper filed a second PCR petition, this time raising a claim of ineffective assistance of counsel at sentencing. (ROA 1626- 27.) The PCR court denied relief. (ROA 1720.) Hooper submitted a petition for review, which was denied. (ROA 1733.)

         Hooper filed a third PCR petition, which was summarily dismissed. (ROA 1741, 1769.) Review was denied. (ROA 1771.)

         In 1998, Hooper returned to this Court and filed an initial habeas petition. (Doc. 1.) Subsequently, he filed a supplemental petition for writ of habeas corpus and a memorandum in support. (Docs. 29, 31.) In Claim 16, Hooper alleged that his Arizona sentence violated the Eighth Amendment because the sentencing court relied on invalid Illinois murder convictions to prove that Hooper had previously been convicted of a crime for which, under Arizona law, a sentence of life imprisonment or death was imposable. Hooper alleged that his Illinois murder convictions were invalid because he was tried and sentenced by a judge later convicted of racketeering and taking bribes.[1](Doc. 29 at 9; Doc. 31 at 59.)

         The Court concluded that Claim 16 was unexhausted. (Doc. 32.) Hooper withdrew the claim and the Court stayed this habeas proceeding pending exhaustion of the claim in state court. (Id.) The Court eventually vacated its stay and ordered the parties to brief the procedural status, merits, and requests for evidentiary development as to all claims. (Doc. 55.) Hooper filed, and the Court denied, a motion for discovery and an evidentiary hearing. (Docs. 79, 96.) Subsequently, Hooper moved to add Claim 16 back into his supplemental petition. (Doc. 106.) The Court denied amendment, concluding that Claim 16 was without merit and therefore amendment was futile. (Doc. 114.) The Court denied Hooper's remaining habeas claims on October 10, 2008. (Doc. 125.)

         On August 19, 2014, the Ninth Circuit remanded the case for reconsideration of Claims 4 and 16. (Doc. 140.)

         CLAIM 4

         In Claim 4 of his supplemental habeas petition, Hooper alleges ineffective assistance of counsel at sentencing. (See Doc. 31 at 26-38.) The Court found the claim procedurally barred because Hooper did not raise it in his first PCR petition. (Doc. 96 at 12-13, 30.)

         A. 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.

566 U.S. at 17; 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, 566 U.S. at 14); 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).[2]

         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” in the Martinez context, a petitioner must show that the ineffective assistance of trial counsel claim was “substantial” or had “some merit.” Clabourne, 745 F.3d at 377 (citing Martinez, 556 U.S. at 14).

         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.” 466 U.S. 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 proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688.

         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)).

         The remand order states that “the remanded claims are for purposes of remand substantial.” (Doc. 140 at 2.) Because the Ninth Circuit has already found the remanded claim substantial, prejudice has been established. The issue of cause remains-that is, whether post-conviction counsel's performance was ineffective under Strickland. The Court will address cause by assessing the underlying ineffective assistance of trial counsel claim. See Clabourne, 745 F.3d at 377-78.

         B. Additional facts

         1. Sentencing

         A sentencing hearing was held on February 4, 1983. Hooper did not present any mitigating evidence at the presentencing hearing. (ROA 289.) Instead, at Hooper's sentencing on February 11, 1983, his counsel, Grant Woods, addressed the judge “person-to-person” to argue that Hooper should not be sentenced to death. (RT 2/11/83 at 22.) Woods invoked the “basic historical and . . . religious precept . . . that you should show mercy” and “turn the other cheek” and “most importantly that you should not kill.” (Id. at 23.) He further argued that it was unnecessary to sentence Hooper to death because he had already received death sentences in Illinois; therefore, the judge would adequately protect society by imposing a life sentence. (Id.) Woods concluded: “So I urge you, Your Honor, at the last moment to consider, do justice, protect society, punish the guilty, follow a higher law, and you, yourself, do not kill and let that be the example that you show today. That you will not kill as others have done.” (Id. at 25.)

         The trial court found five aggravating factors. The court determined that Hooper had been convicted on September 23, 1981, of triple homicide, armed robbery, and aggravated kidnapping in Illinois. See Hooper, 145 Ariz. at 550, 703 P.2d at 494. This finding proved the aggravating factors set forth in A.R.S. § 13-703(F)(1) and (2); namely, that Hooper had previously been convicted of another offense for which under Arizona law a sentence of life imprisonment or death was imposable and had previously been convicted of a felony involving the use or threat of violence on another person. Id. The court found three additional aggravating circumstances: that in the commission of the offense Hooper knowingly created a grave risk of death to another person or persons, §13-703(F)(3); that Hooper committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value, § 13-703(F)(5); and that Hooper committed the offense in an especially heinous, cruel or depraved manner, § 13-703(F)(6). Id.

         The court, after “consider[ing] all of the mitigating circumstances without limitation, ” sentenced Hooper to death. (Id.)

         2. PCR proceedings

         During his PCR proceedings, Hooper was represented by Philip Seplow. Seplow did not raise a claim of ineffective assistance of counsel at sentencing in his first PCR petition. He did raise such a claim in the second PCR petition, adding that he had performed ineffectively as PCR counsel by failing to raise the claim in the first PCR proceedings. (ROA 1627.) Seplow stated that during the initial PCR proceedings he did not realize the significance of claims of ineffective assistance of counsel at sentencing. He argued that sentencing counsel should have presented evidence that Hooper was loved by his family and friends, that he was an artist and had an excellent institutional record in Illinois, and that he was not an antisocial personality and was capable of rehabilitation. Seplow also argued that trial counsel performed ineffectively by failing to object to the presentence report that was introduced at Hooper's sentencing. The PCR court denied the claim as procedurally barred. (ROA 1720.)

         C. Analysis

         1. Deficient performance

         Strickland does not require defense counsel to present mitigating evidence at sentencing in every case. See Wiggins v. Smith, 539 U.S. 510, 533 (2003); see also Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir. 2009) (“No absolute duty exists to introduce mitigating or character evidence.”); Hawkins v. Coyle, 547 F.3d 540, 548 (6th Cir. 2008) (explaining that “a careful reading of Wiggins reveals that counsel's performance will not necessarily be deficient because of a failure to investigate, so long as counsel's decision not to investigate is reasonable under the circumstance. Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (“[T]he lesson to be drawn from our decisions is not that counsel's performance is always, or even usually, deficient if counsel fails to present available mitigating circumstance evidence.”). In Strickland itself, for example, counsel did not present mitigation evidence. 466 U.S. at 673-75. Counsel did not seek character witnesses or a mental health examination. Id. The Court explained that given the overwhelming aggravating factors trial counsel could “reasonably surmise . . . that character and psychological evidence would be of little help.” Id. at 699. Instead, based on his knowledge of the sentencing judge, counsel focused on the fact that the defendant accepted responsibility for his crimes. Id. at 673. Counsel also argued that the defendant was fundamentally a good man who committed the crimes under extremely stressful circumstances. Id. at 674. Pursuing this strategy did not constitute deficient performance. Id. at 699.

         If defense counsel decides not to investigate mitigation, that “particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. at 691; see Wiggins, 539 U.S. at 521-22 (explaining that ‚Äúcounsel has a duty to make reasonable ...

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