United States District Court, D. Arizona
R. BOLTON UNITED STATES DISTRICT JUDGE.
case is before the Court on remand from the Ninth Circuit
Court of Appeals.
Todd Lee Smith is an Arizona death row inmate. On December 3,
2009, this Court denied his amended petition for writ of
habeas corpus. (Docs. 70, 71.) On December 1, 2014, the Ninth
Circuit Court of Appeals remanded the case, ordering this
Court to reconsider several of Smith's habeas claims in
the light of intervening law, including Martinez v.
Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan,
740 F.3d 1302 (9th Cir. 2014). (See Doc. 80.) On
November 22, 2016, the Ninth Circuit expanded the remand to
include a question as to the applicability of McKinney v.
Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), to
Smith's sentencing. (See Doc. 95.) Both sets of
remanded issues have been fully briefed. (Docs. 87, 88, 91,
97, 99, 104.)
before the Court is Smith's Motion to Stay Proceedings.
(Doc. 106.) The request is based on the United States Supreme
Court's grant of certiorari in McKinney. See
McKinney v. Arizona, No. 18-1109, ___ S.Ct. ___, 2019 WL
936074 (Mem). Respondents oppose a stay. (Doc. 107.)
1997, a Coconino County jury convicted Smith of two counts of
first-degree murder, armed robbery, and first-degree burglary
arising from the robbery and deaths of an elderly couple at a
campground in Ashurst Lake, Arizona. The Arizona Supreme
Court summarized the facts of the crimes as follows:
During the summer of 1995, Clarence “Joe”
Tannehill, 72, and Elaine, his 73-year-old wife, were camping
near Ashurst Lake, approximately twenty miles from Flagstaff.
They arrived at the campsite in their truck and travel
trailer on July 26, 1995.
Todd Lee Smith arrived at the Ashurst campground on July 21,
1995 with his mother, Judy Smith, and four-year-old son in a
motor home and car. The three were living in the motor home.
Smith had been unemployed for some time and Judy supported
all three with her Social Security income.
On July 31, 1995, after a quarrel, the Smiths left Ashurst
separately. Later that same day, Todd Smith and his son
returned to Ashurst in the motor home. He had no money. When
he arrived, he checked in and gave the campground hosts the
name “Tom Steel” and an incorrect license plate
The next evening, August 1, Smith went to the Tannehills'
trailer armed with a gun and knife. His hand was wrapped in
his son's T-shirt to feign an injury as a ruse to get
into the trailer. Once Smith was inside, Mr. Tannehill
grabbed for the gun and it went off. Smith then struck the
Tannehills repeatedly with the gun. Although both had already
died from blunt-force head injuries, he also cut their
throats. Mrs. Tannehill also had bruises and lacerations on
her arms and upper body, which the medical examiner
characterized as defensive wounds.
Smith took Mr. Tannehill's wallet from his back pocket
and emptied Mrs. Tannehill's purse on the bed. He took
cash, but left credit cards. He also took a white television
set, seven necklaces, and approximately $130. Smith said he
struck them first, took the items, and when he thought they
were getting up, struck them again and slit their throats.
State v. Smith, 193 Ariz. 452, 455-56, 974 P.2d 431,
sentencing, the trial court found four aggravating factors
and a number of mitigating circumstances but none
sufficiently substantial to call for leniency. The court
sentenced Smith to death for the murders and to a term of
imprisonment on the other counts. The Arizona Supreme Court
affirmed. Id. The United States Supreme Court denied
unsuccessfully pursuing post-conviction relief
(“PCR”) in state court, Smith initiated the
instant habeas proceedings.
court of appeals ordered this Court to reconsider habeas
Claim 15, alleging ineffective assistance of counsel at
sentencing, and “to address . . . whether
reconsideration is warranted” as to habeas Claims 2, 3,
and 4, alleging ineffective assistance of trial and appellate
counsel and prosecutorial misconduct. (Doc. 80.)
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). For such 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.” Id. Coleman held that ineffective
assistance of counsel in PCR proceedings does not establish
cause for the procedural default of a claim. Id.
Martinez, the Court established a “narrow
exception” to the rule announced in Coleman.
566 U.S. at 9. Under Martinez, a petitioner may
establish cause for the procedural default of an ineffective
assistance of trial counsel 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 v.
Washington, 466 U.S. 668 (1984)' 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, 813 F.3d at
798. The Ninth Circuit has clarified 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).
claims that were adjudicated on the merits in state court,
federal habeas review “is limited to the record that
was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). In
Dickens, however, the Ninth Circuit held that
factual allegations not presented to a state court may render
a claim unexhausted, and thereby subject to analysis under
Martinez, if the new allegations
“fundamentally alter” the claim presented to and
considered by the state courts. Dickens, 740 F.3d at
1318. A claim has not been fairly presented in state court if
new evidence fundamentally alters the legal claim already
considered by the state court or places the case in a
significantly different and stronger evidentiary posture than
it was when the state court considered it. Id. at
Ninth Circuit has held that in the context of a
Martinez claim, Pinholster does not bar a
petitioner from introducing new evidence to the district
court. Dickens, 740 F.3d at 1321; see Woods v.
Sinclair, 764 F.3d 1109, 1138 (9th Cir. 2014).
“When a petitioner seeks to show ‘cause'
based on ineffective assistance of PCR counsel, he is not
asserting a ‘claim' for relief as that term is used
in § 2254(e)(2).” Dickens, 740 F.3d at
1321. A petitioner may present evidence to demonstrate both
cause and prejudice under Martinez. Id.
has presented a series of exhibits in support of his claims.
(Doc. 87, Ex's 1- 29.) Respondents do not object to
expanding the record to include the bulk of these documents,
and the request will be granted in part. (Doc. 88 at
89-91.) Smith also seeks an evidentiary hearing, to which
Respondents object. (Id. at 89, 92.) That request
will be rejected for the reasons discussed below.
Claim 15, Smith alleged that trial counsel performed
ineffectively at sentencing by failing to present all
reasonably available mitigation and failing to present the
mitigation evidence that counsel did offer in a compelling
and detailed manner. (Doc. 24 at 353.) The Court found Claim
15 procedurally barred because it was not presented in state
court and Smith could not excuse its procedural default.
(Doc. 64 at 23-24.) Respondents contend that Smith cannot
show that trial counsel performed ineffectively at sentencing
or that PCR counsel performed ineffectively by failing to
raise Claim 15. (Doc. 88 at 23.) As set forth below, the
Court agrees. Given the evidence counsel did present to the
trial court, and given the court's findings at
sentencing, Smith cannot show he was prejudiced by
counsel retained three experts to evaluate Smith and testify
at trial. Dr. Thomas Gaughan, a psychiatrist, diagnosed Smith
with major depression, ADHD, polysubstance dependence,
personality disorder not otherwise specified (NOS), learning
disorder NOS, mathematics disorder, and a history of head
injuries. (Doc. 88, App'x A, Ex. D at 14-16.) He
noted that the results of a PET scan were normal and that the
results of a neurological assessment were “within
normal range.” (Id. 11.) Dr. Gaughan opined that
Smith suffered from impaired impulse control and that his
“mental state at the time of the murders was
substantially impaired by his ADHD, personality disorder,
major depression, and alcohol and possibly methamphetamine
use.” (Id. at 25-26.)
Adrian Raine, a neuropsychologist, detected
“significant brain dysfunction which would contribute
very significantly to impulsive, nonreflective
violence.” (Id., Ex. F.) He testified that
Smith's “prefrontal cortex is compromised or
damaged or not functioning correctly.” (RT 4/18/97 at
report, Dr. Raine listed several “lines of evidence . .
. indicative of the fact that [Smith] probably suffered
significant brain dysfunction which would contribute very
significantly to impulsive, nonreflective violence.”
(Doc. 88, App'x A, Ex. F at 2.) This evidence included
head injuries, memory loss, neurological test results,
hyperactivity, the fact that Smith's mother smoked two
packs of cigarettes a day when pregnant with Smith, and
Smith's history of drug and alcohol abuse. (Id.
Raine found a number of factors suggesting that Smith's
“attack on the Tannehills was predominantly reactive in
nature” or the result of “impulsive
aggression.” (Id. at 5.) Dr. Raine opined that
while the initial stage of the robbery was largely proactive,
Smith committed the murders impulsively, without reflection
or premeditation. (Id.)
Raine also found evidence supporting the following mitigating
factors: Smith's capacity to conform his conduct to the
requirements of the law was impaired; Smith was under stress
at the time of the offense; his aggression was impulsive and
reactive; he was under the influence of drugs and alcohol at
the time of the offense; he acknowledged his guilt and
expressed remorse; he suffered from antisocial personality
disorder; he was the victim of poor parenting and childhood
abuse by his older brother; his parents suffered mental
illnesses; his memory of the offense was impaired; he had
close ties to his son; and he lacked a serious criminal
record. (Id. at 8.)
Dr. Scott Sindelar, a neuropsychologist, performed an
assessment of Smith. (Id., Ex. L.) Dr. Sindelar
found that overall Smith's neurological functioning was
in the normal range. (Id. at 65.) He found
Smith's intellectual functioning to be in the high
average range, his verbal IQ to be average, his performance
IQ high average, and his achievement scores above average for
reading but significantly below average for spelling and
Sindelar opined that “there was brain damage” to
at least the “subcortical areas” of the brain
resulting from blows to Smith's brain and his history of
substance abuse. (Id. at 39.) Smith's brain
injuries affected the part of the brain that regulates
reactions and resulted in impulsivity. (Id. at
Sindelar further found that Smith's “early and
continued abuse of drugs potentially arrested his emotional
and cognitive development” and his continued substance
abuse caused him to “become increasingly disorganized
and dysfunctional.” (Id. at 5.) Dr. Sindelar
explained that “[l]inks between alcohol abuse and
violence have been recognized for years.”
(Id.) Dr. Sindelar also explained the damaging
effects of methamphetamine use. (Id. at 5-11.)
Sindelar further noted that Smith's mother smoked heavily
while she was pregnant with Smith. He concluded that
“the evidence that we accumulated . . . is overwhelming
that there were pre-natal influences on the brain. There were
early problems that showed up in the school system, the drug
use, the falls, the injuries, the blows to the head, . . .
the ongoing substance abuse.” (Id. at 82-83.)
rebuttal, the State presented psychiatrist, Dr. Steven Pitt.
(RT 4/22/97.) Dr. Pitt testified that in his opinion Smith
did not suffer from memory loss, dissociative disorder, or
frontal lobe damage. (Id. at 26-30.) He opined that
Smith was able to reflect on his actions when he chose to.
(Id. at 38.) Dr. Pitt diagnosed Smith with substance
abuse and personality disorder NOS with antisocial features.
(Id. at 46.)
experts did not testify at sentencing, but counsel attached
their reports and portions of their trial testimony to his
54-page sentencing memorandum. (Doc. 88, App'x A.)
Counsel argued that at the time of the killings Smith was
impaired both by drug and alcohol intoxication and by mental
and emotional disorders. (Id. at 31.) Counsel noted
Smith's history of head injuries and substance abuse.
(Id. at 35-40.)
the sentencing phase of trial, counsel presented several
mitigation witnesses, including Smith's father and
various family friends. (RT 9/23/97 at 50-120.) These
witnesses testified that Smith was a loving father to his
son; that he was caring towards his mother; that he was not a
violent person; that he was victimized by the bullying of his
older brother; and that his parents did not provide proper
closing argument, Smith's counsel again asserted that
Smith suffered from both mental and drug-induced impairments
at the time of the murders. (Id. at 158.) Counsel
discussed the diagnoses of ADHD and a personality disorder,
Smith's brain injuries and the effects of methamphetamine
use, and Smith's impulsivity. (Id. at 158-63.)
sentencing Smith to death, the court found four aggravating
factors: multiple killings, under A.R.S. § 13-703(F)(8);
the crime was committed in expectation of pecuniary gain,
A.R.S. § 13-703(F)(5); the crime was especially cruel as
to Mrs. Tannehill, A.R.S. § 13-703(F)(6); and the
victims were more than 70 years old, A.R.S. § 13-
703(F)(9). (See Doc. 99, Ex. 1 at 2-4, Special
offered one statutory mitigating circumstance, A.R.S. §
13-703(G)(1) (“The defendant's capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to
prosecution.”). (Id. at 7.) Smith alleged that
drugs, alcohol, and mental and emotional disorders caused
significant impairment at the time of the killings.
trial court found that Smith failed to prove “that on
the night of these killings he was under the influence of
drugs or alcohol. The evidence is, at best, contradictory,
and [Smith] himself denied such use prior to the
killings.” (Id.) The court found,
“[a]fter considering all of the other evidence, ”
that “[Smith's] mental condition, whether caused by
his child rearing or prolonged use of drugs, caused him to
have a personality disorder.” (Id. at 8.)
However, based on a number of considerations, including
Smith's “planning, execution and subsequent
attempts to cover up his crime, ” the court concluded
that Smith was not significantly impaired at the time of ...