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Newell v. Ryan

United States District Court, D. Arizona

March 20, 2019

Steven Ray Newell, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER DEATH PENALTY CASE

          Honorable John J. Tuchi United States District Judge.

         Before 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 the petition.

         I. BACKGROUND

         Newell 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 (2006).

         On the 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 standing.

         That 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.

         The 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 the ditch.

         Later 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.

         An 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.

         The 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.

         The 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.

         Elizabeth's underwear, along with blood, bone, and tissue samples, were collected and sent to the Department of Public Safety (“DPS”) lab for testing.

         A 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.

         Newell 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.

         On the 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.

         Newell 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.

         Later 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.

         A criminalist with the DPS conducted an analysis on Elizabeth's underwear. Semen was found inside, and DNA analysis established that Newell was the source.

         A jury convicted Newell of first-degree murder, sexual conduct with a minor, and kidnapping. He was sentenced to death on the first-degree murder conviction.

         The Arizona Supreme Court affirmed the convictions and sentences. Newell, 212 Ariz. at 393-96, 132 P.3d at 837-40.

         In 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.

         Newell 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.)

         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). “[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. at 103.

         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). 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 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 § 2254(d)(1).”).

         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 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).

         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

         The 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.

         A. Ineffective Assistance of Counsel

         Claims 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.

         The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010). To satisfy Strickland's first prong, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” 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)

         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.” 466 U.S. 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.
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) standard”).

         Claims 1-4:

         Newell 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 3-9.)[1]

         The claims are interlinked. The discussion that follows encompasses the Court's resolution of all of Newell's allegations of ineffective assistance of counsel at sentencing.

         Background

         Before 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, Ex. 44.)

         On September 10, 2003, the State filed a Request for Disclosure of Mitigation Evidence. (ROA 67.)[2] 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.)

         The 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.)

         On 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 condition. (Id.)

         Ultimately, Newell refused to submit to the examination, and the trial court precluded all mental health evidence. (ROA 112.)

         On June 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.

         1. Sentencing hearing

         Counsel 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.

         Newell's mother, Kathy, testified that she dropped out of school after eighth grade. (RT 2/23/04, a.m., at 42.)[3] She began using drugs at age 25. (Id.)

         Kathy 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.)

         When 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.)

         When 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. (Id.)

         Kathy 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 49.)

         Finally, 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.)

         Newell's 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 35-36.)

         Tracy 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 44.)

         Mary 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.)

         Ginger 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.)

         Kathy's 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. at 84.)

         Newell's 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.)

         2. PCR proceedings

         In his 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.)

         At the 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.)

         Counsel 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[4] 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 present.

         Newell 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.)

         Finally, 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.)

         In 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. 42.)

         The 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.)

         The 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.)

         Dr. 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.” (Id.)

         Dr. 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.)

         The PCR 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.)

         The 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.)

         3. Analysis

         The PCR 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.

         “Strategic 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).

         Moreover, 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.

         In sum, 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.

         Even if 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.)

         This 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 ...


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