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Washington v. Ryan

United States Court of Appeals, Ninth Circuit

April 17, 2019

Theodore Washington, Petitioner-Appellant,
Charles L. Ryan, Warden, Respondent-Appellee.

          Argued and Submitted September 26, 2018 Pasadena, California

          Appeal from the United States District Court for the District of Arizona D.C. No. CV-95-02460-JAT James A. Teilborg, District Judge, Presiding

          Nathaniel C. Love (argued), Sidley Austin LLP, Chicago, Illinois; Gilbert H. Levy, The Law Offices of Gilbert H. Levy, Seattle, Washington; Mark E. Haddad, Sidley Austin LLP, Los Angeles, California; for Petitioner-Appellant.

          Laura P. Chiasson (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General, Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.

          Before: Ronald M. Gould, Consuelo M. Callahan, and N. Randy Smith, Circuit Judges.


         Habeas Corpus / Death Penalty

         The panel reversed the district court's denial of habeas relief as to the penalty phase, and remanded, in a case in which Arizona state prisoner Theodore Washington, who was sentenced to death for first-degree murder, asserted that his trial counsel rendered ineffective assistance by not investigating and presenting mitigating evidence at the penalty phase.

         The panel reviewed the district court's decision de novo in this pre-AEDPA case and applied the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984) - assessing the state court record to determine whether Washington's counsel was constitutionally deficient and whether the deficient performance resulted in prejudice.

         The panel held that counsel performed ineffectively by not properly investigating Washington's background, and as a result, the trial court was not presented at the penalty phase with substantial mitigation evidence regarding Washington's education and incarceration, his diffuse brain damage, and his history of substance abuse. The panel held that this raises a probability that, had the court been presented with the mitigation evidence in the first instance, the outcome would have been different, as the sentencing judge might have decided that Washington should be spared death and be imprisoned for life.

         Dissenting, Judge Callahan wrote that in second-guessing the performance of Washington's trial counsel, the majority uses a standard for gross incompetence that doesn't square with precedent, and doesn't hold Washington to his heavy burden of prejudice.

         The panel addressed other issues in a concurrently filed memorandum disposition.



         Arizona state prisoner Theodore Washington appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 1987, a jury found Washington guilty of six crimes involving the robbery and murder of Sterleen Hill in her Arizona home. The court sentenced Washington to death.

         In his habeas corpus petition, Washington challenges his conviction and sentence on the first-degree murder charge. He asserts that he is entitled to habeas relief on several grounds, the majority of which are addressed in a separate memorandum disposition filed concurrently with this opinion. This opinion solely addresses Washington's certified claim for ineffective assistance of trial counsel. Washington contends that his counsel did not investigate and present mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse, and substance abuse. The Arizona court previously considered and rejected this claim on post-conviction review.

         Because review under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-122, 100 Stat. 1214 ("AEDPA"), does not apply in this case, we are not bound by the highly deferential "double deference" in considering Washington's claim of ineffective assistance of counsel and its proper analysis. See Hardy v. Chappell, 849 F.3d 803, 824-26 (9th Cir. 2016) (explaining the interaction of 28 U.S.C. § 2254(d) and the standard for deficiency under Strickland v. Washington, 466 U.S. 668 (1984)). Instead, we apply the familiar standard articulated in Strickland, and assess the state court record to determine whether Washington's counsel was constitutionally deficient and whether the deficient performance resulted in prejudice. See Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (applying the Strickland analysis in a pre-AEDPA case). Because Washington's counsel did not properly investigate Washington's background, the trial court at the penalty phase was not presented with substantial mitigation evidence regarding Washington's education and incarceration, his diffuse brain damage, and his history of substance abuse. This raises a reasonable probability that, had the court been presented with the mitigation evidence in the first instance, the outcome would have been different. The sentencing judge might have decided that Washington should be spared death and be imprisoned for life.[1] We reverse the district court's denial of habeas relief and remand with instructions to grant habeas relief against the death penalty, unless within a reasonable time the state retries the penalty phase or decides to modify the sentence to life in prison.


         At around 11:45 p.m. on the night of June 8, 1987, two men forced their way into Ralph and Sterleen Hill's Yuma, Arizona home in what turned out to be a disastrously violent home invasion. The men forced the Hills to lie face down on the floor of the master bedroom and bound their hands behind their backs. One of the men intermittently "screwed" a pistol in Ralph's ear while both men yelled at the couple demanding that the Hills give them drugs or money. Ralph glimpsed one of the assailants as he ransacked the drawers and closets in the room. The Hills were discovered lying face down in their bedroom. Both had been shot in the back of the head. Ralph survived the horrendous shot to his head, but was seriously injured. Sterleen did not survive the shooting.

         Police arrested Fred Robinson shortly after the incident. Robinson was the common law husband of Susan Hill, Ralph

          Hill's daughter from a prior marriage. Police also arrested Jimmy Mathers and Theodore Washington in connection with the crimes. The state charged the three men with (1)first degree murder for the death of Sterleen Hill, (2)attempted first degree murder, (3) aggravated assault causing serious physical injury, (4) aggravated assault using a deadly weapon, (5) burglary in the first degree, and (6) armed robbery. The three men were tried together, and the jury convicted on all counts.


         The penalty phase of the trial commenced on January 8, 1988. In this appeal, we are concerned with the penalty phase of Washington's trial and the death penalty sentence he received.

         Washington's trial counsel, Robert Clarke, called three witnesses to testify on Washington's behalf: Washington's friend, Steve Thomas; Washington's mother, Willa Mae Skinner; and Washington's half-brother, John Mondy.

         Steve Thomas testified that he knew Washington for two years. He testified that Washington was easily influenced but not violent. He also testified that Washington was a dedicated father. When asked if Washington had a drug problem, Thomas testified that he had not noticed one. Willa Mae Skinner testified that Washington was a good child and that he dropped out of school when he was in high school. She also testified that Washington was a good father, and that he was gentle and "liked to party." Finally, John Mondy reiterated that Washington was affable but easily led. He also confirmed that Washington had trouble in school as a child.

         During closing argument, Clarke focused primarily on attacking the sufficiency of the court's findings under Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). Regarding mitigation, Clarke did not entirely ignore all mitigation, but rather urged the court to consider Washington's age, his relatively minor criminal record, his good relationship with his son, and his general demeanor as a caring individual. This appeal is concerned primarily with the mitigation evidence and argument that Clarke did not present.

         The trial court found that the state had established two aggravating factors beyond a reasonable doubt: (1) that the murder was committed in an especially cruel, heinous, or depraved manner, and (2) that the murder was committed for, or motivated by, pecuniary gain. With respect to mitigation, the court found that Washington's age was not a mitigating factor and that the remaining mitigating factors did not outweigh the aggravating factors. The court sentenced all three defendants to death on the first-degree murder charges.


         Washington, Robinson, and Mathers each appealed their convictions and sentences to the Arizona Supreme Court. The state high court affirmed Washington and Robinson's convictions and sentences, State v. Robinson, 796 P.2d 853, 865 (Ariz. 1990), but found insufficient evidence to convict James Mathers and vacated his conviction, State v. Mathers, 796 P.2d 866 (Ariz. 1990).

         Following the direct appeal process, Washington and Robinson challenged their convictions and sentences on post-conviction review ("PCR"). The court held a joint PCR hearing on September 8, 1993. The Honorable Stewart Bradshaw, the same judge who presided over the trial, also presided over the post-conviction review proceeding. Washington, through his appellate counsel, argued that Clarke was ineffective at the penalty phase due to his failure to present mitigating evidence. Specifically, Washington argued that Clarke erred by failing to conduct a more thorough review of his school, medical, and incarceration records. He also argued that Clarke should have obtained a psychological evaluation and presented the results to the court.

         The bulk of the new evidence presented at the PCR hearing was elicited through the testimony of Dr. Roy, the defense counsel's retained psychologist. Dr. Roy evaluated Washington in 1992. He conducted clinical interviews and several psychological tests. Dr. Roy's interviews with Washington revealed that he suffered abuse as a child in the form of daily whippings with straps and belts and that adults in the home used alcohol as a means to sedate him as a child. His review of Washington's school and Department of Corrections ("DOC") records revealed that he was placed in classes for the "educable mentally retarded" when he was five years old and that he had been marked as low-IQ while incarcerated. However, Dr. Roy testified that these records conflicted with his own clinical findings because Washington tested at a low-average IQ of 96.

         Dr. Roy's interviews with Washington also revealed that Washington had substance abuse problems relating to alcohol and cocaine use. Washington told Dr. Roy that he began drinking recreationally at age eight and was a functional alcoholic by age fourteen. He also told Dr. Roy that he was heavily intoxicated on the night of the murder. Washington also said that he was a heavy cocaine user and that he consumed about $175 in cocaine per day at the time of the crime.

         Finally, Dr. Roy testified that he believed that Washington suffered from diffuse brain damage resulting from early and prolonged drug and alcohol use and numerous traumatic head injuries. Dr. Roy testified that diffuse brain damage can result in disinhibition and poor social judgment as well as poor impulse control and an inability to appreciate the long-term consequences of one's actions. Dr. Roy testified that, in his opinion, Washington's cocaine addiction and his impaired impulse control likely contributed to his ability to be manipulated by others into making poor decisions.

         The state called Dr. Eva McCullars, a psychiatrist who also evaluated Washington. Dr. McCullars reviewed Dr. Roy's report and conducted clinical interviews with Washington in June 1993. Dr. McCullars testified that she did not review Washington's DOC records, school records, or adult incarceration records. Dr. McCullars agreed that Washington suffered from diffuse brain damage, but concluded that Washington also suffered from antisocial personality disorder. On direct examination, the state asked Dr. McCullars whether diffuse brain damage could cause hyperkenesis (hyperactive behavior or attention deficit disorder). Dr. McCullars explained that "[hyperkenesis] is one example of diffuse brain damage." She went on to explain that several prominent individuals including Walt Disney and Thomas Edison exhibited hyperkinetic behavior as children. When questioned on cross examination, Dr. McCullars acknowledged that Washington came from a "significantly dysfunctional family." She also admitted that several of the markers for antisocial personality disorder, such as early truancy and an inability to maintain employment, were more frequently associated with lower socio-economic status black adolescents when compared to the general population.

         Robert Clarke, Washington's trial counsel, also testified at the PCR hearing. Clarke testified that he did not request Washington's education or corrections records because he believed his interviews with Washington, Skinner, Mondy and Bryant were sufficient. Clarke testified that he had "very extensive discussions" with Washington about what his life was like and any possible substance abuse issues. He also testified that he had "relatively extensive" discussions with Washington's mother, half-brother, and girlfriend. Clarke testified that, based on these interviews, "there wasn't anything that clued me in that there was a special problem that would suggest I should obtain those types of records." With respect to Washington's drug use, Clarke testified that Washington never told him that he was addicted to cocaine or that he was using cocaine on the night of the murder. When questioned on the matter, Clarke acknowledged that Bryant had told Clarke that Washington had a "cocaine problem," but that he did not investigate further.

         In a written order, Judge Bradshaw held that Washington was not entitled to relief for ineffective assistance of counsel at the penalty phase. Judge Bradshaw credited Dr. McCullars's findings that Washington had antisocial personality disorder and was poorly adjusted to living in society. However, Judge Bradshaw concluded that "there is nothing . . . which lessened his ability to differentiate right from wrong or conform his actions with the law." Judge Bradshaw also explained that he had been aware at the time of sentencing that Washington had been doing well while incarcerated. Judge Bradshaw further reasoned that any drug and alcohol dependency "taken separately or with any other mitigating circumstance or circumstances would [not] have mitigated against the sentence [Washington] has received."


         On April 25, 1995, the Arizona Supreme Court summarily denied Washington's petition for review of the PCR court's decision. Washington then commenced his habeas action in the federal district court, culminating in this appeal.

         In his amended federal habeas corpus petition, Washington raised 17 claims. The district court determined that claims 1, 2, 3 (in part), 6, 7, 8 (in part), 9, 11 (in part), 12, 14 (in part), 16, and 17 were procedurally barred. On April 22, 2005, the district court rejected the remaining claims on their merits and dismissed the petition. Washington filed a motion to alter the judgment on May 5, 2005, which the district court denied on June 8, 2005.

         On July 11, 2005, Washington filed an untimely notice of appeal from the district court's denial of habeas relief. A three-judge panel of this court held that it lacked jurisdiction and affirmed the district court's denial of Rule 60(b) relief. Washington v. Ryan, 789 F.3d 1041 (9th Cir. 2015). The court then granted Washington's motion for en banc rehearing. Washington v. Ryan, 811 F.3d 299 (9th Cir. 2015). In a 6-5 decision, the en banc panel held that Washington was entitled to relief under Rule 60(b)(1) and (6) from his untimely notice of appeal and ordered the district court to "vacate and reenter its judgment denying Washington's petition for writ of habeas corpus, nunc pro tunc, June 9, 2005," to render the notice of appeal timely. Washington v. Ryan, 833 F.3d 1087, 1102 (9th Cir. 2016). The United States Supreme Court denied the state's petition for writ of certiorari. Ryan v. Washington, 137 S.Ct. 1581 (2017) (mem.).

         In his opening brief, Washington raised three certified issues and four uncertified issues. In this opinion, we address Washington's certified claim for ineffective assistance of counsel at the penalty phase. The remaining issues are ...

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