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McGill v. Ryan

United States District Court, D. Arizona

January 9, 2019

Leroy McGill, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable John J. Tuchi United States District Judge

         Before 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.)

         The 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.

         I. BACKGROUND

         In 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).

         In July 2002, McGill was living in Sophia Barnhart's house, along with his girlfriend, Jonna Hardesty, and an acquaintance named Justin Johnson.

         Jack 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.

         On July 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 apartment.

         Uhl let 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.

         Yates and Uhl also escaped the apartment, which was fully engulfed in flames when firefighters arrived.

         Burns 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.

         A grand 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.

         At 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.

         At the 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. § 13-703(F)(6).[1]

         In the 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.

         On June 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, PCR petition.)

         The 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.)

         In 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.)

         McGill filed his petition for writ of habeas corpus in this Court on April 8, 2013. (Doc. 30.)

         II. APPLICABLE LAW

         Federal 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).

         The 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).

         Under § 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.

         In 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 § 2254(d)(1).”).

         However, 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. Cal. 2012).

         For 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).

         For 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.

         In 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).

         Martinez 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).

         III. ANALYSIS

         A. Ineffective Assistance of Counsel Claims

         McGill 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.

         Claims 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.

         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, 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.

         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.

         “Surmounting 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 Richter:

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 § 2254(d)(1) standard”).

         Claim 1:

         In 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.)

         The PCR 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.)[2] 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.)

         1. Sentencing hearing

         McGill 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 addictionologist.

         At the 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.)[3]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.

         Through 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.)

         Although 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.)

         Because 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.)

         The 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.)

         In 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.)

         McGill 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.)

         Brewer 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 injuries. (Id.)

         Brewer 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.)

         Brewer 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.)

         Counsel 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.)

         Brewer 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 42-44.)

         Counsel 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.)

         Dr. 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.)

         Dr. 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.)

         Dr. 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. at 106-07.)

         Dr. 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.)

         Dr. Lanyon administered the Minnesota Multiphasic Personality Inventory (MMPI II). The results suggested that McGill was anxious, withdrawn, and passive. (Id. at 111.)

         Neuropsychological 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.)

         Schaffer 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. at 31.)

         The 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.)

         2. PCR proceedings

         In his 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.)

         The 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.

         At the 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 Rosengard.

         The PCR 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)

         3. Discussion

         McGill 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- 62.)

         As set 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.

         a. Failure to develop a relationship of trust

         McGill 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).

         Next, 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.

         Finally, 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.

         b. Failure to obtain necessary records

         McGill 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 ...


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