Steven James v. Dora Schriro

Filing

FILED OPINION (WILLIAM A. FLETCHER, MARSHA S. BERZON and MILAN D. SMITH, JR.) AFFIRMED in part; REVERSED and REMANDED in part.. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [8836439]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN CRAIG JAMES,
Petitioner-Appellant,

No. 08-99016

v.

D.C. No.
2:00-CV-01118-NVW

CHARLES L. RYAN,
Respondent-Appellee.

OPINION ON
REMAND

On Remand from the United States Supreme Court
Filed October 25, 2013
Before: William A. Fletcher, Marsha S. Berzon,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge W. Fletcher

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SUMMARY*

Habeas Corpus / Death Penalty
On remand from the United States Supreme Court, the
panel affirmed in part and reversed in part the district court’s
denial of a 28 U.S.C. § 2254 habeas corpus petition based on
ineffective assistance of counsel at the penalty phase.
The panel originally held that when Arizona law
prohibited petitioner from raising on direct appeal a claim of
ineffective assistance of counsel that relied on extra-record
evidence, and petitioner raised the claim in his first state
petition for post-conviction relief (PCR), the claim was not
procedurally defaulted. The panel explained that petitioner
could not be charged with having waived in his second PCR
a claim that he had raised in the first PCR that was resolved
against him on procedural grounds. Accordingly, the third
PCR court erroneously found the ineffective assistance claim
procedurally barred.
The Supreme Court granted certiorari, then remanded for
consideration of whether Johnson v. Williams, 133 S. Ct.
1088 (2013), compels a different result. The panel held that
it does not. The panel explained that, although Williams
instructs federal courts to give state courts the benefit of the
doubt when the basis for their holdings is unclear, Williams
does not require federal courts to ignore a state court’s
explicit explanation of its own decision relying solely on state
procedural grounds to deny the claim.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Gary T. Lowenthal (argued), Santa Fe, New Mexico; Thomas
James Phalen, Phoenix, Arizona, for Petitioner-Appellant.
Kent Ernest Cattani (argued), Chief Counsel, Arizona
Attorney General’s Office, Phoenix, Arizona; Amy Pignatella
Cain and Lacey Stover Gard, Office of the Arizona Attorney
General’s Office, Tucson, Arizona, for Respondent-Appellee.

OPINION
W. FLETCHER, Circuit Judge:
In James v. Ryan (James II), 679 F.3d 780 (9th Cir.
2012), we granted Steven James habeas corpus relief from his
death sentence, holding that his trial counsel had provided
ineffective assistance at the penalty phase. The United States
Supreme Court vacated that decision and remanded for us to
consider whether Johnson v. Williams, 133 S. Ct. 1088
(2013), compels a different result. Ryan v. James, 133 S. Ct.
1579 (2013). We conclude that it does not.
I. Background
A. State Proceedings
An Arizona jury convicted James of first-degree murder
and kidnapping for the 1981 killing of Juan Maya. James II,
679 F.3d at 786. James II contains a thorough recitation of
the facts and procedural history. Id. at 785–801. We provide
only a brief summary here. James, Lawrence Libberton, and
Martin Norton “severely beat Maya, drove him to an isolated

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desert area, killed him by shooting him and striking him with
rocks, and threw his body down an abandoned mine shaft.”
Id. at 785. Finding that the murder was “‘especially heinous,
cruel, or depraved,’” the trial court sentenced James to death.
Id. at 798–99. The Arizona Supreme Court affirmed. Id. at
799.
In his first state petition for Postconviction Relief
(“PCR”), James argued that his trial attorney provided
ineffective assistance of counsel (“IAC”) at the penalty phase
“by failing adequately to investigate and present” mitigation
evidence. Id. The Maricopa County Superior Court
dismissed the claim, holding that James had been required
under Arizona law to raise his penalty-phase IAC claim on
direct appeal. Because he had not done so, his IAC claim was
procedurally barred. Id. The Arizona Supreme Court denied
review. Id.
In his second state PCR petition, James alleged IAC by
his trial, appellate, and first PCR counsel. The Maricopa
County Superior Court held that it was “‘precluded from
granting relief’” because James had sought to raise his
penalty-phase IAC claim in his first PCR proceeding, and that
claim had been held precluded in that earlier proceeding. Id.
The Arizona Supreme Court denied review. Id.
In his third state PCR petition, James raised a number of
claims, including his penalty-phase IAC claim. He also
raised several guilt-phase claims, including (1) that the State
failed to disclose an oral plea agreement with Norton, in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972), and (2) that the
State failed to correct Norton’s false testimony denying the
existence of the plea agreement, in violation of Napue v.

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Illinois, 360 U.S. 264 (1959). James II, 679 F.3d at 786, 800.
The Maricopa County Superior Court denied James’s
Brady/Giglio and Napue claims on their merits. Id. As the
first and second PCR courts had done, the third PCR court
held that James’s IAC claim was procedurally barred because
James could have raised it on direct appeal. Id. In the
alternative, the court held that the claim was procedurally
barred because James had “‘waived any such [IAC] argument
by failing to cite in his second petition specific errors of
counsel.’” Id. at 800–01.
After addressing each of James’s claims in detail, the
third PCR court concluded its opinion with a paragraph
stating, “‘[a]s to the entire petition . . . there are no genuine or
material issues of fact or law that are in dispute that would
entitle [James] to an evidentiary hearing. No colorable
claims have been made.’” Id. The Arizona Supreme Court
denied review. Id.
B. Federal Proceedings
In 2000, James filed in federal district court a petition for
a writ of habeas corpus under 28 U.S.C. § 2254. The court
denied relief but granted a certificate of appealability on
James’s Brady/Giglio, Napue, and penalty-phase IAC claims.
Id.
In James v. Schriro (James I), 659 F.3d 855 (9th Cir.
2011), withdrawn and superseded by James II, 679 F.3d 780,
we affirmed the district court as to James’s Brady/Giglio and
Napue claims but reversed as to his penalty-phase IAC claim.
James I, 659 F.3d at 860. Under the deferential standard of
review required by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), we

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held that the third PCR court “did not unreasonably apply
Brady, Giglio, or Napue” in rejecting James’s claims. James
I, 659 F.3d at 877–78.
We reviewed James’s penalty-phase IAC claim de novo
because we held that the third PCR court had not adjudicated
the merits of the claim. Id. at 875–76. We first held that
James’s IAC claim was not procedurally defaulted because,
“when James filed his first PCR, there was no firmly
established [Arizona] rule requiring a defendant to raise on
direct appeal an ineffective assistance of counsel claim that
relied on extra-record evidence.” Id. at 879. On the merits of
the claim, we held that James’s trial counsel had provided
ineffective assistance at the penalty phase because he “failed
to conduct even the most basic investigation of James’s social
history,” “failed to investigate James’s mental health,” and
“failed to investigate James’s history of drug abuse.” Id. at
880–81. The “powerful mitigating evidence” that an
adequate investigation would have disclosed was sufficient
for us to find “a reasonable probability that a sentencing
court . . . would not have returned a death sentence” had
James’s trial counsel performed effectively. Id. at 892.
In a petition for rehearing before this court, the State
argued for the first time that we should not have reviewed
James’s penalty-phase IAC claim de novo. James II,
679 F.3d at 802. The State argued that the third PCR court
had, in the concluding paragraph of its opinion, provided an
“alternative ruling on the merits” of James’s IAC claim.
According to the State, we were therefore required to decide
that claim under AEDPA’s highly deferential standard of
review. Id. In James II, we withdrew and amended our
opinion in James I, rejected the State’s argument, and denied

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the petitions for rehearing and for rehearing en banc. Id. at
785.
First, we held that the State had waived its argument that
the third PCR court addressed the merits of James’s claim by
not raising it at any point in the litigation prior to its petition
for rehearing. Id. at 802. Second, we held that the State’s
argument would fail even if it had not been waived. We held
that the last paragraph of the third PCR court’s opinion was
not an indication that the court adjudicated the IAC claim on
the merits. We wrote:
[T]he third PCR court expressly stated that it
denied James’s ineffective assistance of
counsel claim as procedurally barred. As a
result, we need not presume that the brief
paragraph at the end of its opinion somehow
adjudicated the claim on the merits.
Id. at 803. On the merits of James’s petition, we reached the
same result as in James I. See id. at 805–19, 821.
The State petitioned for certiorari. The Supreme Court
granted certiorari, vacated our decision, and remanded “for
further consideration in light of Johnson v. Williams,
[133 S. Ct. 1088 (2013)].” Ryan v. James, 133 S. Ct. 1579
(2013).
II. Discussion
Williams is potentially relevant only as to our decision in
James II to review James’s IAC claim de novo rather than, as
the State requests, under AEDPA’s more deferential standard.
To prevail in his argument that we should review his IAC

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claim de novo, James must convince us that, under Williams,
the third PCR court did not adjudicate that claim “on the
merits.” 28 U.S.C. § 2254(d).
When a federal habeas petitioner’s claim has previously
been “adjudicated on the merits” in state court, AEDPA limits
our review of the state court decision. James II, 679 F.3d at
801. In such a case, we may not grant habeas relief
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). “Section 2254(d) imposes a standard
that is ‘difficult to meet.’” James II, 679 F.3d at 801 (quoting
Harrington v. Richter, 131 S. Ct. 770, 786 (2011)). But it
does not apply when a state court does not reach the merits of
a federal claim. “Where a state court does not reach the
merits of a federal claim, but instead relies on a procedural
bar later held inadequate to foreclose federal habeas review,
we review de novo.” Id. at 802.
Therefore, the critical question is whether a state court’s
decision is an adjudication on the merits or a procedural
ruling that precludes an adjudication on the merits. When we
decided James II, the most recent Supreme Court opinion

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addressing this question was Harrington v. Richter, 131 S. Ct.
770 (2011). In Richter, the state habeas petitioner had raised
an IAC claim before the California Supreme Court. That
court denied the claim in a “one-sentence summary order.”
Id. at 783. The U.S. Supreme Court held that this was an
adjudication on the merits, notwithstanding the lack of
explanation. Id. at 784–85. The Court held:
When a federal claim has been presented to a
state court and the state court has denied
relief, it may be presumed that the state court
adjudicated the claim on the merits in the
absence of any indication or state-law
procedural principles to the contrary. . . . The
presumption may be overcome when there is
reason to think some other explanation for the
state court’s decision is more likely.
Id. In James II, we held that the third PCR court’s “express[]
state[ment] that it denied James’s ineffective assistance of
counsel claim as procedurally barred” was sufficient to avoid
the Richter presumption. 679 F.3d at 803.
After our decision in James II, the Supreme Court decided
Williams. In Williams, the state habeas petitioner had argued
that the trial court’s decision to dismiss a juror for bias
violated both the Sixth Amendment and California law.
133 S. Ct. at 1093. The California Court of Appeal denied
the petition in an opinion that discussed the juror’s dismissal
under state law but “did not expressly acknowledge”
Williams’s Sixth Amendment claim. Id. The U.S. Supreme
Court held that the Court of Appeal’s decision was an
adjudication on the merits of the federal claim despite its
failure to mention it.

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The Supreme Court characterized its decision as a
straightforward application of the Richter presumption. It
wrote, “Although Richter itself concerned a state-court order
that did not address any of the defendant’s claims, we see no
reason why the Richter presumption should not also apply
when a state-court opinion addresses some but not all of a
defendant’s claims.” Id. at 1094. Therefore, “[w]hen a state
court rejects a federal claim without expressly addressing that
claim,” there is, as in Richter, a rebuttable presumption “that
the federal claim was adjudicated on the merits.” Id. at 1096.
On remand of this case from the Supreme Court, the State
argues that Williams requires us to find that the third PCR
court adjudicated James’s penalty-phase IAC claim on the
merits. We disagree. Richter and Williams deal with cases
where the state court denies relief on a federal claim without
specifically addressing the claim. Under both Richter and
Williams, the adjudicated-on-the-merits presumption arises
when the state court is silent concerning the reasons for
denying the federal claim. Here, unlike in Richter and
Williams, the third PCR court addressed James’s
claims—including his penalty-phase IAC claim—in detail.
It issued a 38-page opinion, examining each claim under a
separate heading and explaining its reasons for denying each
one. James II, 679 F.3d at 803. The third PCR court, like the
two PCR courts that preceded it, “never discussed the merits
of James’s ineffective assistance of counsel claim. Instead,
it relied solely on procedural grounds to deny the claim.” Id.
The State does not dispute that the third PCR court
dismissed James’s IAC claim as procedurally barred. Id. at
802. Instead, it repeats the argument it made to us in its
petition for rehearing after our decision in James I. It argues
that the final paragraph of the third PCR court’s opinion was

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an “alternative” ruling on the merits of James’s IAC claim.
We rejected this argument in James II. Nothing in Williams
changes our conclusion. In James II, we relied on Richter’s
holding that the presumption applies “in the absence of any
indication or state-law procedural principles to the contrary.”
Id. at 803 (quoting Richter, 131 S. Ct. at 785) (emphasis and
internal quotation marks omitted). Williams, rather than
changing that rule, quoted it with approval. Williams,
133 S. Ct. at 1094. It is hard to think of a clearer
“indication . . . to the contrary” than an express statement by
the third PCR court that it denied James’s IAC claim solely
on the basis of “state-law procedural principles.” Id. (internal
quotation marks omitted).
If the State were correct that the last paragraph of the
third PCR court’s opinion was an alternative holding,
Williams might require us to presume it was a holding on the
merits. But, as we stated in James II, that paragraph was not
an alternative holding. Rather, its plain language and context
make clear that it “simply clarified that no evidentiary
hearing was necessary” for James’s claims. James II,
679 F.3d at 803. Contrary to the State’s argument, that
statement is perfectly consistent with the court’s ruling that
James’s IAC claim was “precluded.” As Arizona law
recognizes, a claim that the court cannot procedurally
entertain is no more suited for an evidentiary hearing than a
claim the court has rejected on the merits. See Ariz. R. Crim.
P. 32.6(c) (excluding “all claims that are procedurally
precluded” from hearing).
Williams instructs us to give state courts the benefit of the
doubt when the basis for their holdings is unclear. It does not
require us to ignore a state court’s explicit explanation of its
own decision. We reaffirm our holding in James II that the

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third PCR court did not adjudicate James’s IAC claim on the
merits.
Nothing in Williams affects the substance of our decision
that James’s counsel provided unconstitutionally ineffective
assistance at the penalty phase of his trial. James II, 679 F.3d
at 807–21. Nor does Williams affect our substantive decision
that, under § 2254(d), the third PCR court reasonably rejected
James’s guilt-phase Brady/Giglio and Napue claims. Id. at
805–06. Therefore, James remains entitled to habeas relief
from his death sentence, though not from his conviction.
Conclusion
We conclude that Williams does not affect our decision
in James II. We “affirm the district court with respect to
James’s guilt phase claims based on Brady, Giglio, and
Napue. We reverse and remand with instructions to grant the
writ with respect to the death sentence. We instruct the
district court to grant the state a reasonable amount of time in
which to resentence James. If the state chooses not to
resentence, James’s sentence will automatically be converted
to life in prison in accordance with Arizona law.” James II,
679 F.3d at 821.
AFFIRMED in part; REVERSED and REMANDED
in part.

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