United States District Court, D. Arizona
ORDER DEATH PENALTY CASE
Honorable John J. Tuchi United States District Judge.
the Court is the petition for writ of habeas corpus filed by
Steven Newell, an Arizona death row inmate. (Doc. 38.)
Respondents filed an answer and Newell filed a reply. (Docs.
45, 52.) For the reasons set forth below, the Court denies
sexually assaulted and murdered eight-year-old Elizabeth
Byrd. The following factual summary of the crimes is taken
from the opinion of the Arizona Supreme Court in State v.
Newell, 212 Ariz. 389, 393-96, 132 P.3d 833, 837-40
morning of May 23, 2001, a neighbor saw Elizabeth walking
toward school with Newell following closely behind. About an
hour later, a Salt River Project (“SRP”) employee
working in a field near the school came upon someone standing
in an irrigation ditch. The person turned and looked at him
and then ran away. The employee noticed a piece of green
carpeting in the water near where the person had been
afternoon, Elizabeth's mother arrived home to find that
Elizabeth had not returned from school. When Elizabeth did
not come home that night, the police were called. The
officers were told that Elizabeth had not been in school that
day. A missing persons report was called in.
next morning, while searching the field near the school,
Phoenix Police Department officers discovered a child's
shoe, a children's book, a black purse or knapsack, a
pair of socks, and a coin purse. That afternoon, a detective
from the Maricopa County Sheriff's Office discovered
Elizabeth's body in an irrigation ditch in the field,
rolled up in green carpeting. Shoe prints were found along
that day, the SRP employee went to the Sheriff's office
after seeing a news report about the investigation. He was
shown a photographic lineup, but did not identify anyone in
the lineup as the person he had seen in the ditch.
autopsy revealed bruising on Elizabeth's hands, wrists,
and forearms. A ligature was still tied around
Elizabeth's neck, and there were abrasions on the left
side of her neck, consistent with fingers grasping at the
ligature trying to remove it. She also had bruising and an
abrasion on her face.
autopsy also revealed evidence of sexual assault.
Elizabeth's vulva was bruised and the vaginal tract had
abrasions, with a tear on the side of one of the abrasions.
medical examiner concluded that Elizabeth died from
asphyxiation due to ligature strangulation. Once the ligature
had been tightened, Elizabeth likely died within a minute or
two. The medical examiner further determined that it was
likely that Elizabeth had stopped breathing before she was
placed in the water.
underwear, along with blood, bone, and tissue samples, were
collected and sent to the Department of Public Safety
(“DPS”) lab for testing.
detective from the Maricopa County Sheriff's Office
contacted Newell on May 27, 2001. Newell agreed to come to
the station to be interviewed. He was asked about the day of
Elizabeth's disappearance and if he knew anything that
might be helpful to the investigation. Newell described what
he did that day but made no incriminating statements.
was contacted again by a detective at Elizabeth's funeral
on June 2, 2001. Newell voluntarily went to the station and
again answered questions about his activities at the time of
Elizabeth's disappearance. During the interview,
Newell's shoes were taken to be compared with the
footprints at the ditch. Two days later, an analyst from the
Sheriff's office concluded that it was “highly
probable” that the footprints at the crime scene had
been made by Newell's shoes.
evening of June 4, two detectives contacted Newell and asked
if he would consent to another interview. Newell agreed.
Shortly after 8:00 p.m., the detectives began questioning
him. The interrogation was videotaped.
initially denied having anything to do with Elizabeth's
death. Eventually, however, he acknowledged that he had been
with her in the field on the morning of her disappearance. He
admitted he had grabbed her and placed her between his legs
while he rubbed up against her, causing him to ejaculate. He
also acknowledged placing her in the water. When he saw the
SRP employee, he covered Elizabeth with the carpeting and ran
off. Newell maintained that Elizabeth was alive when he left
her in the ditch and denied sexually abusing her. He was
taken to jail on the morning of June 5, 2001.
that day, the SRP employee was shown another photo lineup,
which included a picture of Newell. This time he identified
Newell as the person he had seen in the ditch.
criminalist with the DPS conducted an analysis on
Elizabeth's underwear. Semen was found inside, and DNA
analysis established that Newell was the source.
convicted Newell of first-degree murder, sexual conduct with
a minor, and kidnapping. He was sentenced to death on the
first-degree murder conviction.
Arizona Supreme Court affirmed the convictions and sentences.
Newell, 212 Ariz. at 393-96, 132 P.3d at 837-40.
2009, Newell filed a petition for post-conviction relief
(“PCR”), raising allegations of ineffective
assistance of counsel. The PCR court denied relief after
holding an evidentiary hearing. In 2012, the Arizona Supreme
Court denied Newell's petition for review.
filed his petition for writ of habeas corpus in this Court on
July 3, 2013. (Doc. 38.) Newell filed a motion for
evidentiary development, which the Court denied. (Doc. 65.)
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).
“[A] state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
§ 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). 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
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) v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014)
(“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
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 the
rule announced in 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).
Court will first address Newell's claims of ineffective
assistance of trial counsel. The Court will then discuss
Newell's remaining exhausted claims. Finally, the Court
will address Newell's unexhausted claims.
Ineffective Assistance of Counsel
of ineffective assistance of counsel are governed by the
principles set forth in 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 (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.” 466 U.S. at 689. “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.” White v. Singletary, 972 F.2d 1218,
1220 (11th Cir. 1992)
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.” 466 U.S. 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.
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. 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 under the § 2254(d)(1)
raises several claims of ineffective assistance of counsel at
sentencing. He alleges that counsel failed to investigate,
obtain, and present mitigation evidence from lay and expert
witnesses. The categories of omitted mitigating evidence
include Newell's “upbringing amid a
multi-generational history of violence”; severe and
chronic drug addiction and “the effects of drug use at
the time of the crime”; family history of instability,
neglect, and physical, mental, emotional, and sexual abuse;
and mental and cognitive impairments. The PCR court denied
these claims on the merits. (ME 1/12/12 at
claims are interlinked. The discussion that follows
encompasses the Court's resolution of all of Newell's
allegations of ineffective assistance of counsel at
trial, Newell's counsel retained three experts who
examined Newell. Dr. Pablo Stewart, a forensic psychiatrist,
diagnosed Newell with Post-Traumatic Stress Disorder (PTSD),
major depressive disorder, Attention Deficit/Hyperactivity
Disorder (ADHD), cognitive disorder not otherwise specified
(NOS), and polysubstance dependence. (Doc. 59-4, Ex. 39.) Dr.
John Wicks, a clinical neuropsychologist, diagnosed Newell
with ADHD, polysubstance abuse and dependence, and cognitive
disorder NOS. (Doc. 59-5, Ex. 43.) Dr. Richard Lanyon, a
psychologist, diagnosed Newell with severe methamphetamine
abuse and severe borderline personality disorder. (Doc. 59-6,
September 10, 2003, the State filed a Request for Disclosure
of Mitigation Evidence. (ROA 67.) The court ordered the
defense to disclose its mitigation witnesses and evidence by
the beginning of November 2003. On November 20, 2003 the
State filed a renewed motion for disclosure and indicated
that it intended to retain an expert witness to examine
Newell. (ROA 98.) Newell filed an objection based on his
Fifth, Sixth, and Fourteenth Amendment rights. (ROA 100.)
trial court granted the State's motion. (ROA 105.) Newell
filed a request to stay in order to file a special action.
The trial court denied the request. (RT 12/12/03 at 14.)
Newell then filed a special action and sought a stay in the
Arizona Supreme Court. He cited Phillips v. Araneta,
208 Ariz. 280, 93 P.3d 480 (2004), a special action the
supreme court had accepted to consider whether a court could
compel a defendant to participate in a mental health
examination with the State's expert. (ROA 115.)
January 7, 2004, the Arizona Supreme Court denied the stay
and issued an order to the trial court. (Id.) The
order gave the trial court discretion to order Newell to
submit to the State's mental-health examination, as long
as no information gained during the examination would be used
in “a manner or for a purpose that contravene[d]
[Newell]'s privilege against self-incrimination.”
(Id.) The court further ordered that no information
gained during the examination could be used in any criminal
proceeding, except on issues raised by Newell in the penalty
phase. Finally, the order specified that if Newell refused to
cooperate, the trial court had the discretion to preclude him
from presenting expert evidence on the issue of his mental
Newell refused to submit to the examination, and the trial
court precluded all mental health evidence. (ROA 112.)
30, 2004, after Petitioner's trial and sentencing, the
Arizona Supreme Court issued its opinion in
Phillips, holding that once a defendant puts his
mental health in issue “during the penalty phase of a
capital trial, ” a trial court may order the defendant
to submit to a mental examination by the State's expert.
208 Ariz. at 283, 93 P.3d at 483.
called seven witnesses to present mitigating evidence on
Newell's behalf. The witnesses included Newell's
mother, stepfather, sister, aunts, and neighbors familiar
with Newell's upbringing.
mother, Kathy, testified that she dropped out of school after
eighth grade. (RT 2/23/04, a.m., at 42.) She began using
drugs at age 25. (Id.)
testified that Newell never knew his biological father.
(Id. at 43.) Newell spent much of his early
childhood living with his maternal grandmother, Eula.
(Id. at 43- 45.) This was the most stable period in
his life. (Id. at 44.) Nevertheless, while living at
Eula's house, Newell was sexually abused at age eight or
nine, when a 12-year-old neighbor attempted to sodomize him.
(Id. at 50.) Kathy testified to a possible second,
later, incident of attempted sexual abuse perpetrated by a
babysitter who also attempted to molest Newell's sister.
(Id. at 51-52.)
Newell was 15 or 16 months old, Kathy moved with her
boyfriend, Ken Offlick, to Ohio. (Id. at 43.)
Offlick beat her and Newell. They moved to a shelter before
returning to Phoenix and moving back in with Eula.
(Id. at 45.)
Newell was around eight years old, Kathy married Richard
Lincks. Soon thereafter they moved to Las Vegas with Newell
and his sister. (Id. at 46.) When Lincks, also a
drug user, lost his job in Las Vegas he returned to Phoenix
alone, leaving Kathy and the children homeless. (Id.
at 47.) The family spent some time living in a vacant field.
and Lincks were both arrested on drug charges in 1998 when
Newell was 18. (Id. at 48.) Lincks was sentenced to
three years for manufacturing methamphetamine while Kathy was
placed on probation. (Id.) Because of the drug use
and their financial problems, Kathy and Richard fought often,
sometimes in front of Newell and his sister. (Id. at
Kathy testified that she remembered a period when Newell
engaged in self-harm, cutting and burning himself. (RT
2/23/04, p.m., at 16.)
stepfather, Richard Lincks, also testified that he and Kathy
would get high and fight. (Id. at 20-21.) He
acknowledged smoking methamphetamine with Newell when Newell
was in the seventh grade. (Id. at 28-29.) They
smoked meth together on several occasions. (Id. at
Newell, Newell's older sister, testified while the family
was living with Eula, Kathy would “just
disappear” for periods. (Id. at 44.) After
Eula died, the family moved a lot. (Id. at 40.)
Their parents used drugs together and fought in front of
Newell and Tracy. (Id. at 46, 48.) Tracy testified
that she and Newell were raised in the “drug
life” and it was all they ever knew. (Id. at
Lou Trundle, Eula's neighbor, testified that Kathy did
not do much parenting. (Id. at 55.) Newell spent
time at Trundle's house because his mother was not
around. (Id. at 56.)
Whitely testified her daughter was Newell's girlfriend
when he was 14. (Id. at 60.) She allowed Newell and
her daughter to live together in a trailer on her property.
(Id.) Ginger used and manufactured methamphetamine.
(Id. at 62.)
sisters Sherry Osborn and Connie Hendrick testified that
Kathy used drugs and was an irresponsible parent. Osborn
testified that Newell came to stay with her when he was 12
but she had to ask him to leave after three days because he
could not follow the rules. (Id. at 75.) Osborn
believed that Newell's mother had never set any rules for
him to follow. (Id. at 76.) Hendrick testified that
Newell's mother did not call the police after the
incident of alleged sexual abuse by a neighbor boy.
(Id. at 80-81.) Hendrick also testified that she had
heard about Newell cutting and burning himself. (Id.
counsel then presented an offer of proof regarding the
proposed testimony of Dr. Stewart, who diagnosed Newell with
“posttraumatic stress disorder as a result of his
physical abuse he suffered as a child and the physical and
emotional abandonment, the drug use, and as evidences by his
self-mutilation and burning.” (Id. at 88-89.)
Counsel also stated that he believed Dr. Stewart's
testimony could provide a connection between Newell's
background and the crimes. (Id. at 89.)
PCR petition, Newell alleged that trial counsel performed
ineffectively at sentencing by failing to present
“substantial mitigation evidence, ” failing to
present expert testimony regarding Newell's mental health
and its connection to the crimes, failing to request an
expert on addiction and poly-substance abuse, failing to
subpoena certain witnesses to testify at the penalty phase,
and being unprepared to challenge the testimony of a
probation officer who testified in rebuttal for the State.
(Doc. 58-1, Ex. 21.) The PCR court granted an evidentiary
hearing on these claims and dismissed the remaining claims in
the petition. (ME 3/10/10.)
hearing, Newell presented testimony from lead counsel Bruce
Peterson and second chair Tim Agan. Peterson testified he
took the case over from another attorney early in the
proceedings. (RT 3/3/11 at 9-10.) Prior counsel had retained
a mitigation specialist and one expert, Dr. Wicks, but not
much mitigation work had been done when Peterson took over
the case. (Id. at 10.) Peterson retained two
additional experts, Drs. Lanyon and Stewart. (Id.)
discussed their decision not to permit Newell to be examined
by the State's mental health expert. They testified that
they were “flying blind” because this was their
first trial since Ring and there was no direct authority
to guide their decision about whether to allow Petitioner to
be examined by an independent expert before the guilt phase
of trial. (See RT 3/3/11 at 11-15, 36-39.) Peterson
testified that in addition to seeking guidance by filing a
special action, he consulted with colleagues and supervisors
about the issue, but there was no “consensus among the
defense bar” as to whether counsel should allow Newell
to be examined by a State expert. (Id. at 13.) He
could not say that he made a “strategic decision”
in refusing to let Newell be examined, “because we
didn't know the rule.” (Id.) He testified
that he did not want Newell to be examined without counsel
also called Dr. Edward French, a pharmacologist retained
during the PCR proceedings, who testified about the
behavioral effects of methamphetamine. Dr. French did not
examine Newell but opined that methamphetamine affected
Newell's ability to control his actions at the time of
the crimes. (Id. at 69, 74.) He also testified that
the effects of chronic methamphetamine use can include
depression, hallucinations, aggressive behavior, and possible
brain damage. (Id. at 66.)
Newell called Dr. Stewart, who performed a pretrial
psychological examination of Newell. Dr. Stewart testified
that Newell suffered from PTSD caused by a number of events
Newell experienced in his childhood, including sexual abuse,
his mother's neglect, and witnessing his mother being
physically abused. (RT 3/4/11 at 33.) Dr. Stewart also
diagnosed Newell with ADHD and cognitive disorder NOS.
(Id. at 34.) These conditions also affected his
executive functioning, causing him to act impulsively and
make poor choices. (Id. at 48, 60.) Dr. Stewart
further explained that Newell's conditions, which were
never treated, predisposed him to substance abuse, with
Newell using drugs to deal with the symptoms of his
disorders. (Id. at 48-49.)
addition to the testimony of Dr. Stewart, Newell presented
reports from the experts retained by trial counsel, Drs.
Lanyon and Wicks, discussed above, and a declaration by Dr.
Karen Froming, a neuropsychologist who examined Newell in
October 2008. Dr. Froming highlighted Newell's
dysfunctional childhood and traumatic experiences and
concluded that Newell's IQ was average but he suffered
from attentional and severe memory disorder. (Doc. 59-5, Ex.
parties also stipulated to the admission of the
neuropsychological report of Dr. Kiran Amin, an expert
retained by the State. (RT 6/10/11 at 4.) Dr. Amin found that
Newell presented himself as chronically maladjusted and
suspicious of others, with difficulty conforming to social
norms and accepting responsibility for his actions. (Doc.
58-9, Ex. 31, Exhibit “C.”) Dr. Amin found that
Newell likely feigned symptoms of neurologic and amnestic
disorders and possibly feigned psychotic and affective
disorder symptoms. (Id.)
State then called Dr. Steven Pitt, a forensic psychiatrist.
(Id. at 7.) Dr. Pitt noted Newell's history of
drug abuse and diagnosed him with depressive disorder NOS;
personality disorder NOS with antisocial traits; and a
“rule out” diagnosis of pedophilia. (Id.
at 16, 35-39.) Dr. Pitt did not note any cognitive
difficulties. (Id. at 17.)
Pitt opined that Newell's drug use and mental conditions
were not causally connected to the sexual assault and murder,
and that Newell's behavior at the time of the crimes was
conscious and purposeful. (Id. at 30-35.) After
sexually assaulting and strangling Elizabeth, Newell fled
after seeing the SRP worker, washed his clothes and shoes,
and later attended Elizabeth's funeral, participated in
the search for her body, and asked people to concoct an alibi
for him. (Id. at 35.) These were the behaviors of
someone “acutely aware of their conduct.”
Pitt noted the “huge inconsistency” in
Newell's accounts of his drug use at the time of the
crimes and expressed skepticism about Newell's claim that
just prior to the crimes he had attempted to kill himself
with an injection of heroin. (Id. at 19, 34.) Dr.
Pitt also opined that Newell was malingering with respect to
his inability to recall certain details of the crimes.
(Id. at 35-36.)
court denied relief. It found that trial counsel's
decision not to allow Newell to be examined by the
State's expert-thereby forfeiting the opportunity to
present expert mental health evidence at sentencing-did not
constitute deficient performance because the decision was
supported by strategic grounds: counsel's good faith
belief that allowing Newell to be interviewed by the
State's experts would violate his Fifth and Sixth
Amendment rights, and the fact that presenting mental health
evidence would have opened the door to unfavorable rebuttal
evidence from the State. (ME 1/12/12 at 4.)
court also found that Newell was not prejudiced by
counsel's performance at sentencing because the omitted
mental health evidence was “somewhat cumulative”
to the evidence presented at trial and was susceptible to
impeachment by the State's experts. (Id. at 8.)
The impeachment evidence “would have affected the
weight the jury would have afforded the mental health
experts' opinions.” (Id. at 9.)
court's rejection of these claims was neither contrary to
nor an unreasonable application of Strickland, nor
was it based on an unreasonable determination of the facts.
First, the allegation that counsel performed ineffectively in
presenting expert evidence is premised on the argument that
counsel performed deficiently by not allowing Newell to
submit to an examination by the State's expert. As noted,
the PCR court found that counsel's decision was supported
by strategic considerations meant to protect Newell from the
presentation of damaging new information.
choices made after thorough investigation of law and facts
relevant to plausible options are virtually
unchallengeable.” Strickland, 446 U.S at 690.
While trial counsel would not characterize their decision as
“strategic, ” due to their uncertainty about the
applicable rules, their testimony during the PCR hearing
demonstrated that the decision was informed and rational,
based on research and consultation with other defense
attorneys. See Mirzayance, 556 U.S. at 125-26
(finding no deficient performance where decision to drop
insanity defense was not made rashly but reached after
counsel carefully weighed their options). Moreover, as the
PCR court recognized (ME 1/12/12 at 4), “the rule that
an attorney is not liable for an error of judgment on an
unsettled proposition of law is universally
recognized.” Smith v. Singletary, 170 F.3d
1051, 1054 (11th Cir. 1999).
the Ninth Circuit has explained that “even where there
is a strong basis for a mental defense, an attorney may
forego that defense where the attorney's experts would be
subject to cross-examination based on equally persuasive
psychiatric opinions that reach a different
conclusion.” Hendricks v. Calderon, 70 F.3d
1032, 1038 (9th Cir. 1995) (citing Harris v.
Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990)); see
Mickey v. Ayers, 606 F.3d 1223, 1246 (9th Cir. 2010)
(explaining “it is not deficient to refuse to join a
battle royale of experts”). As discussed below, the
opinions of Newell's experts were ripe for impeachment.
counsel's performance at sentencing was “well
within the range of professionally reasonable
judgments.” Van Hook, 558 U.S. at 12 (quoting
Strickland, 466 U.S. at 699). In Van Hook,
defense counsel spoke with the defendant's mother,
father, aunt, and a family friend; met with two expert
witnesses; reviewed military and medical records; and
considered retaining a mitigation specialist. Id. at
9-10. Counsel presented mitigating evidence about the
defendant's traumatic childhood and his impairment on the
day of the crime. Id. The Court found that the scope
of counsel's investigation was reasonable even though
counsel did not interview all of the defendant's
relatives or the psychiatrist who treated his mother.
Id. at 11. By this standard, the performance of
Newell's counsel was also reasonable.
counsel's performance were deficient, Newell cannot show
prejudice. The PCR court cited several grounds for its
determination that Newell was not prejudiced by counsel's
performance at sentencing. The court found that the omitted
mitigating evidence was largely self-reported by Newell,
often cumulative, and sometimes inconsistent with other
testimony. (ME 1/12/12 at 5-6.) The new mitigation evidence
was also impeachable and would have opened the door to
damaging rebuttal testimony by the State's experts.
(Id. at 8-9.)
ruling does not satisfy the doubly deferential standard that
applies to Strickland claims under the AEDPA. First,
the evidence available through the testimony of lay
witnesses, such as details about Newell's dysfunctional
family background and history of drug abuse, would have been