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Smith v. Ryan

United States District Court, D. Arizona

July 29, 2019

Todd Lee Smith, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          SUSAN R. BOLTON UNITED STATES DISTRICT JUDGE.

         DEATH PENALTY CASE

         This case is before the Court on remand from the Ninth Circuit Court of Appeals.

         Petitioner 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.)

         Also 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.)

         BACKGROUND

         In 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 number.
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, 434-35 (1999).

         At 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 certiorari.

         After unsuccessfully pursuing post-conviction relief (“PCR”) in state court, Smith initiated the instant habeas proceedings.

         DISCUSSION

         The 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.[1] (Doc. 80.)

         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). 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.

         In 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).

         For 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 1318-19.

         The 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.

         Smith 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.[2] (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.

         1. Martinez

         A. Claim 15

         In 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's performance.

         Additional facts

         Defense 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.[3] (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.”[4] (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.)

         Dr. 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 61.)

         In his 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. at 2-3.)

         Dr. 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.)

         Dr. 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.)

         Finally, 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 arithmetic.

         Dr. 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 40-42, 53-57.)

         Dr. 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.)

         Dr. 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.)

         In 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.)

         Smith's 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.)

         During 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 discipline. (Id.)

         In his 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.)

         In 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 Verdict 9/24/97.)

         Smith 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. (Id.)

         The 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 ...


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