and Submitted September 26, 2018 Pasadena, California
from the United States District Court for the District of
Arizona D.C. No. CV-95-02460-JAT James A. Teilborg, District
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.
P. Chiasson (argued), Assistant Attorney General; Lacey
Stover Gard, Chief Counsel; Mark Brnovich, Attorney General,
Office of the Attorney General, Tucson, Arizona; for
Before: Ronald M. Gould, Consuelo M. Callahan, and N. Randy
Smith, Circuit Judges.
Corpus / Death Penalty
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
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
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.
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.
panel addressed other issues in a concurrently filed
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.
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.
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. 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.
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.
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.
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
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.
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
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.
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
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).
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.
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.
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
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.
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.
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.
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
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.
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.
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.).
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