Robert Moormann v. Dora Schriro

Filing

FILED OPINION (MARY M. SCHROEDER, M. MARGARET MCKEOWN and JOHNNIE B. RAWLINSON) For the foregoing reasons, we DENY Moormann's request to file a second habeas petition and his motion to recall the mandate. We AFFIRM the district court s denial of the Rule 60(b) motion. We find that Moormann has failed to show a strong likelihood of relief on the merits and so we DENY his motion for a stay of execution. AFFIRMED and relief DENIED. Judge: MMS Authoring, FILED AND ENTERED JUDGMENT. [8082895] [08-99035, 12-15395]

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 1 of 12

FILED
FEB 28 2012

FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROBERT HENRY MOORMANN,
Petitioner - Appellant,

Nos. 08-99035, 12-15395
D.C. No. 2:91-CV-01121-ROS

v.
OPINION
DORA B. SCHRIRO,
Respondent - Appellee.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted February 27, 2012
Phoenix, Arizona

Before: SCHROEDER, McKEOWN, and RAWLINSON, Circuit Judges.
Opinion by Judge SCHROEDER, Circuit Judge:
Robert Moormann applies for a stay of execution and permission to file a
second or successive habeas petition in federal district court. See 28 U.S.C.
§ 2244(b)(3). Moormann was convicted in 1985 of the first-degree murder of his
adoptive mother, Roberta Moormann, and sentenced to death. The murder took

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 2 of 12

place in a Florence, Arizona motel room while Moormann was on a furlough from
the state prison where he was serving a sentence of nine years to life for
kidnapping. After stabbing and suffocating Roberta to death, he dismembered the
body and disposed of it in trash bags. He is scheduled to be executed on February
29, 2012.
His case has already been before us twice. The facts and procedural
background are fully contained in our prior opinions. See Moormann v. Ryan, 628
F.3d 1102 (9th Cir. 2010); Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005).
We summarize what is relevant to this proceeding.
In 2005, in Moormann v. Schriro, we considered an appeal from the denial
of Moormann’s first habeas petition pursuant to 28 U.S.C. § 2254, where he had
raised a number of claims of ineffective assistance of counsel in connection with
his state court trial and appeal. The claims had been considered procedurally
defaulted under Arizona law by the state courts, and by the district court, because
he had not raised them in his state court appeal. We affirmed with respect to most
of his claims, but observed that the claims of ineffective assistance of counsel were
not timely litigated in state court because of a conflict of interest that established
cause for the default. We remanded those that appeared colorable to the district

2

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 3 of 12

court to determine whether there was prejudice to excuse the default. 426 F.3d at
1059-60.
In our second opinion five years later, we considered the ineffectiveness
issues that the district court, after the remand, had certified for appeal. We held
there was no prejudice shown either for the claim that his counsel should have
pursued a defense that Moormann acted impulsively, or for the claim that his
counsel should have called more mitigation witnesses. 628 F.3d at 1114.
Moormann has asked this court for permission to file a successive habeas
petition, or, in the alternative, to have this court recall the mandate of our 2010
opinion so that he can file a belated Rule 60(b) motion in the district court. The
district court in the meantime has considered the merits of his 60(b) motion and
denied it, so he has appealed that ruling. We consolidate the two proceedings for
purposes of decision.
On February 27, 2012, the Arizona Supreme Court denied Moormann’s
February 26, 2012 motion for stay of execution and petition for review from the
Pinal County Superior Court’s February 22, 2012 order denying a hearing on
mental retardation and denying Moormann’s other claims as precluded. We are
satisfied that Moormann’s claims now before this Court are fully exhausted.

3

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 4 of 12

The standard Moormann must meet to file a second or successive petition is
very high. Under 28 U.S.C. § 2244(b)(2), this court must dismiss his request
unless:
(A) [he] shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found [Moormann] guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2).
It is similarly difficult to convince an appellate court to recall its mandate for
the filing of a new proceeding after an appeal has long become final. We do so
only in extraordinary circumstances. Carrington v. United States, 503 F.3d 888,
891 (9th Cir. 2007).
The immediate relief requested is a stay of execution. A federal court will
only grant a stay of execution where the inmate seeking the stay can show a
significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573,
584 (2006).

4

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 5 of 12

For the following reasons, we conclude Moormann has not met these
exacting standards.
Moormann’s current diligent and thorough counsel are, in essence, asking us
to reopen his case so that he can pursue a claim for habeas relief on two issues.
The first issue is that both of his lawyers in state court, the first having been
counsel for the direct appeal and the first postconviction proceeding, and the
second the counsel for the second state postconviction petition, failed so utterly to
raise a colorable claim that either one or both of them effectively “abandoned”
Moormann. The Supreme Court has only recently recognized that complete
abandonment of representation can justify a belated reopening of a matter
considered closed. Maples v. Thomas, 132 S.Ct. 912 (2012).
Moormann contends that he could not previously have argued
“abandonment,” because the Supreme Court only recently recognized it as
establishing cause for default, and in this he is correct. He further argues that his
lawyers’ conduct was similar to the conduct of the lawyers in Maples, and in this
he is incorrect.
In Maples, the lawyers ceased acting as Maples’ attorneys without telling
him; they did not serve as his agents in any meaningful sense, and left him in a
situation where he lacked the assistance of any authorized attorney, so “that, in
5

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 6 of 12

reality, he had been reduced to pro se status.” Id. at 927. Significantly, they failed
to file a notice of appeal on his behalf. The Court did not state whether this
holding should apply retroactively. See 28 U.S.C. § 2244(b)(2)(A) (new rule must
be made retroactive by the Supreme Court). But we assume, for purposes of this
opinion, that it should.
Even assuming that Maples applies retroactively, Moormann cannot make a
prima facie showing that his postconviction counsel abandoned him within the
meaning of Maples. Moormann concedes that he was represented by two lawyers
in his state postconviction proceedings. The first, who had been counsel on direct
appeal and the first postconviction petition, withdrew, so that the second could
assert claims that the first lawyer was ineffective on direct appeal, in addition to
other claims of constitutional violations. Moormann was thus always represented
by active counsel. The fault Moormann attributes to the second lawyer is that he
did not conduct investigations that would have revealed additional evidence
supporting Moormann’s mitigation claims of a difficult childhood, mental
disabilities, and a possibly incestuous relationship with the victim. Such alleged
failure to investigate may be a claim of serious negligence, but it is not
“abandonment.” See Maples, 132 S.Ct. at 923. For this reason, Moormann fails to
state a prima facie claim under Maples.
6

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 7 of 12

Moreover, we actually considered the merits of essentially the same claim in
his first federal habeas petition, where he argued that counsel on the direct appeal
was ineffective because he failed to conduct investigations that would have
revealed mitigating evidence. See Moormann v. Schriro, 426 F.3d 1044. We
remanded for the district court to consider the claim and then held, on the merits,
that “[t]he new material would not have affected the result” of Moormann’s
sentencing. Moormann v. Ryan, 628 F.3d at 1114. Moormann is not now entitled
to renew the same claim on the theory that he was “abandoned” in the state court.
Our analysis is thus not affected by the pending Supreme Court decision in
Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010), cert. granted sub nom. Martinez
v. Ryan, 131 S.Ct. 2960 (2011).
The second issue that Moormann seeks to pursue is that he is now mentally
retarded and cannot be executed for that reason. He relies on Atkins v. Virginia,
536 U.S. 304 (2002), where the Supreme Court held that a person who is mentally
retarded may not be sentenced to death. Moormann’s trial defense of insanity was
rejected by the jury. The state, in its responses to this petition and to Moormann’s
petitions in the state courts, has supplied documentation from the record that shows
that Moormann was diagnosed as having an IQ well above 70 or as not mentally

7

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 8 of 12

retarded in his early twenties in 1972, at the time of his trial in 1985, and again in
1998.
In support of his claim, he now relies on the affidavit of a psychologist
stating that one of two recently administered tests shows Moormann’s IQ to be
below 70. The psychologist expressed the opinion that “if the time and resources
are obtained to conduct a formal assessment” Moormann would qualify for the
mental retardation diagnosis. Moormann seeks more time for further tests that
might more conclusively establish that his IQ has been diminished by recent
surgery and a stroke in 2007.
The Supreme Court in Atkins did not define mental retardation as a matter of
federal law. With respect to mental retardation, as with respect to the related issue
of insanity, see Ford v. Wainwright, 477 U.S. 399, 416-17 (1986), the Supreme
Court left to the states “the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at
317 (quotation marks omitted); see also Schriro v. Smith, 546 U.S. 6, 6-8 (2005)
(summarily vacating a Ninth Circuit order remanding a habeas petition to the
Arizona courts for a jury to make the Atkins determination, and emphasizing that
Atkins left enforcement to the states).

8

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 9 of 12

Moormann presented his mental retardation claim to the Arizona Supreme
Court last week. On February 24, 2012, the Arizona Supreme Court denied
Moormann’s motion for a stay of execution. In that order, the Arizona Supreme
Court expressly noted that under Arizona law, a “defendant is not statutorily
deemed to have mental retardation unless he has a full scale IQ of 70 or lower, and
the onset of that condition occurs before age eighteen.” A.R.S. § 13-753(K)(3),
(5). That court looked to Arizona’s statutory definition of mental retardation, now
termed “intellectual disability,” as a condition entailing, among other things, the
onset of an IQ below 70 before the age of 18. A.R.S. § 13-753(K). The Arizona
Supreme Court examined Moormann's medical history and determined that there
was little likelihood that Moormann could meet the state’s definition of mental
retardation. State v. Moormann, No. CR-85-0115-AP, Order at *4-*5 (Ariz. Feb.
24, 2012) (“Mental retardation, as defined in § 13-753(K)(3) begins in childhood
and cannot develop later in life.”). Arizona requires clear and convincing evidence
in this instance. See A.R.S. § 13-753(G) (a defendant with an IQ of 70 or lower
(but above 65) must prove intellectual disability by clear and convincing
evidence); State v. Moormann, No. CR-85-0115-AP, Order at *4 (Ariz. Feb. 24,
2012) (“Because Dr. Weinstein intends to testify that Moormann’s recent IQ scores
were affected by his post-trial medical conditions, even if credited, Dr. Weinstein’s
9

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 10 of 12

affidavit does not constitute clear and convincing evidence that Moormann had
mental retardation in childhood, only that his recent medical problems have
lowered his IQ.”). We must defer to that conclusion under Atkins. See Atkins, 536
U.S. at 317.
Arizona’s definition is by no means unique. Both the American Association
on Mental Retardation (“AAMR”) and the American Psychiatric Association
(“APA”) define mental retardation as requiring that the onset or manifestation of
the condition occur before the age of eighteen. See Atkins at 308, n.3.
Finally, even if Moormann could now conclusively show that he is currently
mentally retarded, he would be entitled to habeas relief only if, at a minimum, the
Arizona court violated clearly established federal law. See 28 U.S.C. § 2254(d).
There is no clearly established federal law that a person who was not mentally
retarded at the time of the crime or the trial may nevertheless be exempted from the
death penalty pursuant to Atkins, because of subsequent mental deterioration. The
law appears to be to the contrary and does not indicate retardation is a product of
changing circumstances. See Heller v. Doe, 509 U.S. 312, 323 (1993) (“Mental
retardation is a permanent, relatively stable condition . . . .”). We therefore cannot
say that the Arizona Supreme Court’s decision is “contrary to,” or “an
unreasonable application of,” clearly established Supreme Court precedent. 28
10

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 11 of 12

U.S.C. § 2254(d). See also Ochoa v. Workman, 2012 WL 130718, at *4-*5 (10th
Cir. 2012) (holding that Oklahoma’s determination that mental retardation is a
static condition is neither contrary to, nor an unreasonable application of, Atkins).
For the foregoing reasons, we DENY Moormann's request to file a second
habeas petition and his motion to recall the mandate. We AFFIRM the district
court’s denial of the Rule 60(b) motion. We find that Moormann has failed to
show a strong likelihood of relief on the merits and so we DENY his motion for a
stay of execution.
AFFIRMED and relief DENIED.

11

Case: 08-99035

02/28/2012

ID: 8082895

DktEntry: 54

Page: 12 of 12

COUNSEL
Julie Hall, Oracle, Arizona, for petitioner-appellant Robert Henry Moormann.
John Pressly Todd, Deputy Attorney General, Phoenix, Arizona, for respondentappellee Dora B. Schriro.

12