United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
the Court is Petitioner Leroy McGill's petition for writ
of habeas corpus. (Doc. 30.) Respondents filed an answer and
McGill filed a reply. (Docs. 34, 43.)
Court previously denied, in part, McGill's motion for
evidentiary development. (Doc. 78.) In doing so the Court
denied Claims 4 and 6 as procedurally barred and Claims 5 and
7 as meritless. (Id.) McGill subsequently withdrew
Claims 8 and 9. (Doc. 43 at 53.) The Court rules on the
remaining claims as follows.
2004, a jury convicted McGill of first-degree murder and
other counts and sentenced him to death. The following
factual summary is taken from the opinion of the Arizona
Supreme Court affirming the convictions and death sentence.
State v. McGill, 213 Ariz. 147, 150-51, 140 P.3d
930, 933-34 (2006).
2002, McGill was living in Sophia Barnhart's house, along
with his girlfriend, Jonna Hardesty, and an acquaintance
named Justin Johnson.
Yates had an apartment in a nearby duplex. Hardesty's
brother, Jeff Uhl, sometimes stayed in Yates's apartment.
Eddie and Kim Keith, along with their two daughters, also
stayed with Yates, as did the victims in this case, Charles
Perez and his girlfriend, Nova Banta.
12, 2002, McGill, Hardesty, Barnhart, and Johnson spent the
evening at Barnhart's house. At approximately 3:30 a.m.
on July 13, McGill went to Yates's apartment. Uhl and
Eddie Keith came outside to talk with McGill. McGill told
Keith to get his wife and children out of the apartment
because he was going to teach Yates and Perez, who had
previously accused McGill of stealing a gun, “that
nobody gets away with talking about [McGill and
Hardesty].” McGill agreed to spare Yates, but said it
was too late for Perez. Keith and his family fled the
McGill into the apartment. Perez and Banta were sitting next
to each other on a couch. McGill told them they should not
talk about people behind their backs. Then, as Banta
testified, McGill “poured the gasoline on us and
quickly lit a match and threw it at us.” McGill told
witnesses that he had added pieces of Styrofoam to the
gasoline to create a napalm-like substance that would stick
to the victims and increase their suffering. Perez and Banta,
both on fire, ran out of the apartment.
and Uhl also escaped the apartment, which was fully engulfed
in flames when firefighters arrived.
covered eighty percent of Perez's body. He died the next
day. Third-degree burns covered three-quarters of Banta's
body. At the hospital, Banta identified McGill as the person
who set her on fire.
jury indicted McGill for the first-degree premeditated murder
of Perez, the attempted first-degree murder of Nova Banta,
two counts of arson, and endangerment.
trial, Banta identified McGill as the man who attacked her.
She showed the jury the injuries she sustained from the fire.
The medical examiner testified about the severity of
Perez's injuries. The defense put on one witness, Sophia
Barnhart, who claimed that McGill was not involved with the
fire. The jury convicted on all counts.
close of the aggravation phase of the trial, the jury
unanimously found that McGill had been convicted of prior
serious offenses, pursuant to A.R.S. § 13-703(F)(2);
that he knowingly created a grave risk of death to persons
other than the victim, A.R.S. § 13-703(F)(3); and that
he committed the offense in both an “especially
cruel” and an “especially heinous or
depraved” manner, A.R.S. §
penalty phase, McGill offered mitigation evidence that he had
experienced an abusive childhood; that he was psychologically
immature and as a result his girlfriend, Jonna Hardesty, had
greater than normal influence over him; that he suffered from
some degree of mental impairment; that he performed well in
institutional settings; and that his family cared about him.
The State put on rebuttal evidence, including evidence that
while awaiting trial McGill attempted to have a potential
witness killed. The jury found that McGill's mitigation
evidence was not sufficiently substantial to call for
leniency and determined that death was the appropriate
sentence. The Arizona Supreme Court affirmed.
McGill, 213 Ariz. at 163, 140 P.3d at 946.
1, 2010, McGill filed a petition for post-conviction relief
(“PCR”) raising claims of ineffective assistance
of counsel. He alleged that trial counsel performed
ineffectively by failing to prepare the defense expert, Dr.
Richard Lanyon, who testified in mitigation; failing to
retain additional experts and develop mitigation evidence;
failing to present mitigation evidence of cognitive
impairment, sexual abuse, and neglect; and failing to
challenge McGill's prior convictions. (Doc. 35, Ex. CC,
court dismissed all but one of the claims as not colorable.
(Id., Ex. JJ, ME 10/25/10.) The court found that
McGill had stated a colorable claim with respect to his
allegation that counsel should have “retained
additional experts to investigate further the defendant's
alleged brain damage and to corroborate Dr. Lanyon's
conclusions, particularly one who could have shown a causal
nexus between his impairment and the crime.”
(Id. at 4, 6.) The court ordered an evidentiary
hearing on that claim. (Id.)
October 2011, the PCR court conducted an evidentiary hearing.
McGill presented testimony from Dr. Lanyon and lead trial
counsel, Maria Schaffer, plus two additional expert
witnesses, Drs. Joseph Wu and Richard Rosengard. Following
the hearing, the court denied relief. (Id., Ex. Y,
ME 10/25/11 at 4-11.6) The Arizona Supreme Court denied
review on May 30, 2012. (Id., Exhibit AA.)
filed his petition for writ of habeas corpus in this Court on
April 8, 2013. (Doc. 30.)
habeas claims are analyzed under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Under the
AEDPA, a petitioner is not entitled to habeas relief on any
claim adjudicated on the merits in state court unless the
state court's adjudication (1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established federal law or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in state court.
28 U.S.C. § 2254(d).
Supreme Court has emphasized that “an
unreasonable application of federal law is different
from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410 (2000). Under
§ 2254(d)(1), “[a] state court's determination
that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011).
§ 2254(d)(2), a state court's factual determination
is presumed correct and a petitioner bears the burden of
overcoming that presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Satisfying §
2254(d)(2) is a “daunting” burden, “one
that will be satisfied in relatively few cases.”
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)
overruled on other grounds by Murray (Robert) v.
Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). A state
court's “factual determination is not unreasonable
merely because [a] federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). Instead, a federal
habeas court “must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.” Taylor, 366 F.3d at 1000.
Cullen v. Pinholster, 563 U.S. 170, 181 (2011), the
Supreme Court reiterated that “review under §
2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.”
See Murray (Robert), 745 F.3d at 998 (“Along
with the significant deference AEDPA requires us to afford
state courts' decisions, AEDPA also restricts the scope
of the evidence that we can rely on in the normal course of
discharging our responsibilities under §
Pinholster does not bar evidentiary development
where the court has determined, based solely on the state
court record, that the petitioner “has cleared the
§ 2254(d) hurdle.” Madison v. Commissioner,
Alabama Dept. of Corrections, 761 F.3d 1240, 1249-50
(11th Cir. 2014); see Pinholster, 563 U.S. at 185;
Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir.
2013) (explaining that Pinholster bars evidentiary
hearing unless petitioner satisfies § 2254(d));
Williams v. Woodford, 859 F.Supp.2d 1154, 1161 (E.D.
claims not adjudicated on the merits in state court, federal
review is generally not available when the claims have been
denied pursuant to an independent and adequate state
procedural rule. Coleman v. Thompson, 501 U.S. 722,
750 (1991). In Arizona, there are two avenues for petitioners
to exhaust federal constitutional claims: direct appeal and
PCR proceedings. Rule 32 of the Arizona Rules of Criminal
Procedure governs PCR proceedings and provides that a
petitioner is precluded from relief on any claim that could
have been raised on appeal or in a prior PCR petition. Ariz.
R. Crim. P. 32.2(a)(3).
unexhausted and defaulted claims, “federal habeas
review . . . is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at
750. Coleman further held that ineffective
assistance of counsel in PCR proceedings does not establish
cause for the procedural default of a claim. Id.
Martinez v. Ryan, 566 U.S. 1 (2012), however, the
Court established a “narrow exception” to
Coleman. Under Martinez, a petitioner may
establish cause for the procedural default of an ineffective
assistance claim “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 (9th Cir. 2015). The Ninth Circuit has explained
that “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).
applies only to claims of ineffective assistance of trial
counsel; it has not been expanded to other types of claims.
Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir.
2015) (explaining that the Ninth Circuit has “not
allowed petitioners to substantially expand the scope of
Martinez beyond the circumstances present in
Martinez”); Hunton v. Sinclair, 732
F.3d 1124, 1126-27 (9th Cir. 2013) (denying petitioner's
argument that Martinez permitted the resuscitation
of a procedurally defaulted Brady claim, holding
that only the Supreme Court could expand the application of
Martinez to other areas); see Davila v.
Davis, 137 S.Ct. 2058, 2062-63 (2017) (explaining that
the Martinez exception does not apply to claims of
ineffective assistance of appellate counsel).
Ineffective Assistance of Counsel Claims
raises several claims of ineffective assistance of counsel.
Claims 1 and 2 concern counsel's performance at
sentencing. The claims were raised during McGill's PCR
proceedings and denied on the merits. Claim 3 alleges
ineffective assistance during jury selection while Claim 29
alleges ineffective assistance of appellate counsel. These
were not raised in state court.
of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668, 674 (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, 7 (2009) (per curiam); Cox v.
Ayers, 613 F.3d 883, 893 (9th Cir. 2010). To satisfy
Strickland's first prong, a petitioner must
overcome “the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. “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.” Id. at 687-88.
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.
Strickland's high bar is never an easy task,
” Padilla v. Kentucky, 559 U.S. 356, 371
(2010), and “[e]stablishing that a state court's
application of Strickland was unreasonable under
§ 2254(d) is all the more difficult.”
Richter, 562 U.S. at 105. As the Court explained in
Even under de novo review, the standard for judging
counsel's representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record,
and interacted with the client, with opposing counsel, and
with the judge. It is “all too tempting” to
“second-guess counsel's assistance after conviction
or adverse sentence.” [Strickland, 466 U.S.]
at 689. The question is whether an attorney's
representation amounted to incompetence under
“prevailing professional norms, ” not whether it
deviated from best practices or most common custom.
[Id.] at 690.
The standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is “doubly” so.
The Strickland standard is a general one, so the
range of reasonable applications is substantial. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Id. (additional citations omitted); see Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (discussing
“doubly deferential judicial review that applies to a
Strickland claim evaluated under the §
Claim 1, McGill alleges that counsel performed ineffectively
at sentencing by failing to develop a relationship of trust
with McGill that would have resulted in the discovery of
additional mitigating evidence; failing to obtain additional
school, out-of-home-placement, and medical records; failing
to prepare Dr. Lanyon by providing him with pre-sentence and
police reports; failing to retain and present testimony from
additional mental health experts; and failing to discover and
present additional evidence of substance abuse and childhood
sexual assault. (Doc. 30 at 67-80.)
court rejected this claim after holding an evidentiary
hearing on the allegation that counsel should have presented
additional mental health evidence at sentencing. (ME
10/25/11.) McGill contends that the state court's
decision constituted an unreasonable application of clearly
established federal law and was based on an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(1)
and (2). (Doc. 30 at 55.)
was represented at trial by lead counsel Schaffer, of the
Maricopa County Office of the Legal Advocate, and Elizabeth
Todd as second chair. The defense team also included
mitigation specialist Marianna Brewer and investigator Mark
Mullavey. Schaffer retained Dr. Lanyon, a neuropsychologist
who examined McGill and testified at sentencing. Schaffer
sought authorization from her office to retain an
addictionologist and an expert on domestic abuse. The office
denied the latter but authorized Schaffer to retain an
sentencing phase of trial McGill's counsel called 10
mitigation witnesses over four days. The witnesses included
McGill's mother, grandmother, and siblings Roxanne,
Cordell, and Kean McGill. (RT 11/1/04 at 25, 105, 116; RT
11/2/04 at 12, 46.)Mitigation specialist Brewer testified
about the results of her investigation into McGill's
background, and presented several videotaped interviews,
including an interview she conducted with McGill's
brother Brian. (RT 11/8/04 at 12.) Brewer also prepared an
exhibit, submitted to the jury as an exhibit at sentencing,
which included her interview notes and voluminous records
documenting McGill's educational, medical, and legal
history. (Doc. 34, Ex. S.) Finally, Dr. Lanyon testified
about the results of his evaluation of McGill.
these witnesses the jury learned about McGill's chaotic,
neglectful, and abusive upbringing. McGill's mother, Ann,
left his father, Clyde, while she was pregnant with McGill.
(RT 11/1/04 at 28.) She moved with her children from
California to Phoenix. (Id.) Later, Clyde kidnapped
McGill and two of his siblings and brought them to
California. (Id. at 30.) It took four months for Ann
to get the children back. (Id.)
she remarried and had other men in her life, Ann was
essentially a single mother raising six children. (See
Id. at 39.) Arthur Foster was her second husband and the
father of her sixth child, Lonnie. She divorced him after an
assault that left her blind in one eye. (Id. at
36-37.) Foster also beat McGill and his brothers.
(Id. at 45, 125.)
Ann worked frequently, including nights as a bartender, the
children largely fended for themselves, with the older
siblings, primarily Roxanne, responsible for looking after
the younger children. (Id. at 39-40.)
family moved frequently, from Arizona to New Mexico to Texas
and back to Arizona, so McGill attended a number of schools.
In 1971, he and Cordell were sent to Buckner's Boys'
Ranch, a group home in Texas, after authorities concluded
that Ann could not adequately care for her children. (RT
11/1/04 at 40-42; RT 11/3/04, P.M., at 4-6, 8; RT 11/8/04 at
53; Doc. 34, Ex. S at 88-89.) McGill spent two years at
Buckner's before returning home. (RT 11/1/04 at 86; RT
11/3/04. P.M., at 12, 15-16, 32-33.)
1976, McGill was sent to another group home, Boysville, after
being expelled from school for truancy and placed on juvenile
probation. (RT 11/1/04 at 48, 84-89, 102; RT 11/3/04, P.M.,
at 24-30, 33.) Cordell, Kean, and their half-brother, Lonnie
Foster, were also at Boysville. Boysville was stricter than
Buckner's. There was corporal punishment, and both
Cordell and Leroy were disciplined by being spanked with a
wooden paddle. (RT 11/2/04 at 31.) The boys were essentially
“warehoused” at Boysville. (Id. at 32.)
It was a “rough place” and there were lots of
fights between the boys. (Id.) While McGill was in
these group homes, his mother visited him infrequently
(See RT 11/3/04, P.M., at 12, 34, 44.)
left Boysville at age 15 and returned to Phoenix to live with
his family. He attended high school but dropped out before
graduating. (RT 11/1/04 at 49-50, 53, 89-90; RT 11/3/04,
P.M., at 33; RT 11/8/04 at 16-18.) The testimony and records
contained in Brewer's exhibit showed that McGill's
academic performance was poor. (See RT 11/3/04,
P.M., at 19, 34.)
testified at length about her mitigation findings. She
testified that McGill claimed to have been injured in a car
accident in 1985, with his head crashing through the
windshield. (RT 11/8/04 at 19-21, 62-63.) However, Brewer was
unable to obtain any medical records documenting McGill's
testified that in 1985 McGill was placed on probation for
using another person's credit card. While on probation,
he committed two armed robberies and was imprisoned from 1986
to 1993. (RT 11/8/04 at 21-22, 65-66.) McGill was not
actually armed during the robberies; he put his hand in his
jacket and pretended to have a gun. (Id. at 22.)
testified that McGill's prison record was largely
positive. He held a number of jobs, required little or no
supervision, attended AA meetings, and earned his GED. (RT
11/8/04 at 25-35, 73-74.)
presented mitigating evidence about the negative influence of
McGill's girlfriend, Jonna Hardesty. McGill's family
believed Hardesty was “sick, ” “evil,
” and a bad influence who “called the
shots” in her relationship with McGill and isolated him
from the rest of his family. (RT 11/1/04, at 57-59, 143-44;
RT 11/2/04, at 25, 27-28, 60-61; RT 11/8/04 at 10, 76.)
McGill told people that he wanted to get away from Hardesty,
but did not leave because he was afraid she would retaliate
by harming his family or setting fire to his apartment. (RT
11/2/04 at 57, 61.)
testified that the instability McGill experienced as a child
disrupted his learning and impaired his socialization,
behavior, and self-esteem. (RT 11/3/04, A.M., at 6; RT
11/3/04 P.M. at 54-55, 57.) She concluded that McGill was
“severely” abused as a child. (RT 11/8/04 at
presented testimony from Dr. Lanyon. Dr. Lanyon reviewed
records, met with McGill for six or seven hours, performed a
neuropsychological evaluation, and administered general
psychological dysfunction tests. (RT 11/8/04 at 91-92, 110.)
Dr. Lanyon testified that McGill's IQ was in the average
range. (Id. at 93.)
Lanyon testified about the effects of the instability,
neglect, and abuse McGill experienced as a child. He
explained that McGill had no positive male role models, nor
any role models for appropriate adult relationships.
(Id. at 97-99, 101-02, 104, 116-17.)
Lanyon testified about McGill's relationship with Jonna
Hardesty, whom Lanyon described as schizophrenic and
“actively psychotic.” (Id. at 95.)
McGill himself was “pathological” enough to
tolerate Jonna's bizarre behavior. (Id. at 96.)
The maternal neglect McGill experienced as a child led to a
distorted view of interpersonal relationships with women.
(Id. at 96-97.) According to Dr. Lanyon, McGill was
passive in his relationship with Jonna, and “when she
said jump, he jumped.” (Id. at 95-97.)
Lanyon testified that McGill reported suffering a head injury
in a car crash in 1985. (Id. at 105.) According to
Dr. Lanyon, after the injury McGill displayed symptoms
consistent with frontal lobe damage. (Id. at 106.)
He became apathetic, lost his motivation to work, and ended
up homeless before committing the armed robberies.
(Id. at 105-06.) He also suffered depression and
suicidal thoughts. (Id. at 107.) McGill told Dr.
Lanyon that he had no memory of the robberies. (Id.
Lanyon testified about McGill's history of substance
abuse. McGill began drinking alcohol at age nine and using
marijuana at thirteen. (Id. at 108.) He then became
a heavy, chronic user of methamphetamine. (Id. at
109.) Dr. Lanyon testified that methamphetamine use causes
paranoia and impaired judgment. (Id.)
Lanyon administered the Minnesota Multiphasic Personality
Inventory (MMPI II). The results suggested that McGill was
anxious, withdrawn, and passive. (Id. at 111.)
testing indicated no major difficulties due to brain
impairment, with the exception of evidence of brain injury
related to McGill's ability to communicate, which Dr.
Lanyon described as “residual impairment of brain
damage.” (Id. at 114.) There was no deficit in
executive functioning. (Id. at 149-50.) Dr. Lanyon
concluded that it was likely McGill had minimal frontal lobe
damage affecting his motivation and drive rather than his
cognition. (Id. at 175.)
focused her closing argument on the factors that led McGill
to become involved in a “sick, ”
“codependent” relationship with Jonna Hardesty.
(11/10/04 at 29.) These factors included the chaos, neglect,
and abuse McGill experienced in his childhood, and the
absence of role models for normal family life and healthy
adult relationships. (Id. at 12-28.) McGill became
desperate for companionship, which he found in Hardesty.
(Id. at 29.) He was protective of her, despite her
bizarre, destructive behavior, in the same way he and his
siblings were protective of their mother. (Id.) It
was under Hardesty's influence, and in order to protect
her reputation, that he committed the crimes. (Id.
jury found that the mitigating evidence was not substantially
sufficient to call for leniency and determined that McGill
should be sentenced to death. (See Id. at 85.)
PCR petition, McGill presented several claims of ineffective
assistance of counsel at sentencing. The PCR court denied all
but one of these claims as not colorable. (ME 10/25/10.) The
court found counsel performed reasonably in not calling an
addictionologist; that there was no evidence of domestic
abuse between McGill and Hardesty so counsel did not perform
ineffectively in failing to secure appointment of a domestic
abuse expert; and that the allegation of sexual abuse was
unsubstantiated so counsel did not perform ineffectively by
failing to investigate and present such evidence.
(Id. at 3-5.)
court held an evidentiary hearing on McGill's claim that
counsel performed ineffectively by failing to retain
additional experts to present evidence of his cognitive
impairment and establish a causal nexus between that
impairment and the crimes.
evidentiary hearing, held October 4 and 5, 2011, McGill
submitted a number of exhibits, including an affidavit from
lead counsel Schaffer; Dr. Lanyon's original report and a
supplemental report; PET scan results and a report prepared
by Dr. Joseph Wu, a psychiatrist and brain imaging expert; a
report and supplemental report by psychiatrist Dr. Richard
Rosengard; and a letter from Dr. Edward French, a
pharmacologist. As discussed in more detail below, McGill
also presented testimony from Schaffer, Lanyon, Wu, and
court denied relief, finding that counsel's performance
was neither deficient nor prejudicial. (ME 10/25/11.) The
court noted that trial counsel presented “a substantial
amount of mitigation” concerning McGill's
“dysfunctional family background, his relationship with
Ms. Hardesty, and his substance abuse.” (Id.
at 7.) The court explained that counsel retained Dr. Lanyon
to evaluate McGill for possible brain damage, but his
findings were not significant, and the new evidence from Drs.
Wu and Rosengard was largely cumulative to the testimony of
Dr. Lanyon. (Id. at 7-8.) The court concluded there
was not a reasonable probability that their testimony at
sentencing would have produced a difference outcome.
(Id. at 8)
alleges that trial counsel performed ineffectively at
sentencing by failing to (a) develop a relationship of trust
with McGill and his family; (b) obtain necessary records; (c)
prepare Dr. Lanyon for his testimony; (d) retain other
necessary experts; (e) present evidence of substance abuse;
and (f) present evidence of sexual abuse. (Doc. 30 at 67-80.)
He further alleges that the PCR court erred in its findings
about trial counsel's performance with respect to
mitigating evidence of substance abuse, sexual abuse, and
cognitive dysfunction, and was objectively unreasonable in
its application of Strickland. (Id. at 57-
forth below, the PCR court's denial of these claims was
neither contrary to nor an unreasonable application of
clearly established federal law, nor was it based on an
unreasonable determination of the facts. Consequently,
because the claim does not satisfy 28 U.S.C. § 2254(d),
McGill is not entitled to evidentiary development and this
Court reviews the claim based on the record before the PCR
court. Pinholster, 563 U.S. at 183, 185.
Failure to develop a relationship of trust
specifically alleges that trial counsel failed to develop a
relationship of trust with him and his family and as a result
they were reluctant to disclose crucial mitigation
information to the defense team. (Doc. 30 at 67.) This claim
is meritless. First, there is no right to a
“‘meaningful relationship' between an accused
and his counsel.” Morris v. Slappy, 461 U.S.
1, 14 (1983); see also Plumlee v. Masto, 512 F.3d
1204, 1211 (9th Cir. 2008).
McGill cites no support in the state court record for his
assertion that a lack of trust in the defense team caused the
McGills to withhold mitigating information. (See
Doc. 30 at 68-70.) During the PCR proceedings, McGill offered
an affidavit from Schaffer in which she attested that members
of McGill's family “were not forthcoming with
information” and “were either dishonest or not
cooperative, ” and that Lonnie “absolutely
refused to cooperate in coming to court” and threatened
to harm Schaffer or McGill's case if forced to testify.
(Doc. 34, Ex. Y at 15.) McGill did not, however, offer
evidence that his family distrusted the defense team. He
presents that evidence for the first time in affidavits from
his siblings that were prepared in 2013 for these habeas
proceedings. (Doc. 70, Ex's 58, 59, and 61.)
Pinholster forbids the consideration of this new
evidence. 563 U.S. at 183, 185.
the argument that counsel performed deficiently by failing to
consult with McGill is not supported by the record or the
cases McGill cites. In Summerlin v. Schriro, 427
F.3d 623, 634 (9th Cir. 2005), “penalty phase counsel
did not conduct any independent investigation, not even
consulting with his client.” In Correll v.
Stewart, 137 F.3d 1404, 1412 (9th Cir. 1998), there was
an “almost complete absence of effort on the part of
Correll's counsel to investigate, develop, and present
mitigating evidence.” Here, by contrast, neither the
status of the lawyer-client relationship nor the number of
hours spent in direct consultation with McGill prevented
counsel from investigating and presenting a wealth of
mitigating information, including detailed testimony from
several family members and voluminous records documenting
McGill's family and social background.
Failure to obtain necessary records
alleges that trial counsel performed ineffectively by failing
to obtain records from his juvenile adjudications, police
reports from some of his prior arrests, additional school
records, Ann's marriage and divorce records, his
siblings' arrest records, records from Lonnie's stay
at Boysville, and McGill's complete records from
Buckner's Boys Ranch and Boysville. (Doc. 30 at 71.)
According to McGill, these materials “include crucial
evidence in mitigation of McGill's crime, including ...