Cook, et al v. Schriro

Filing 122

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT: IT IS ORDERED that Petitioner's Motion for Relief from Judgment Pursuant to Rule 60(b)(6) (Doc. 118) is DENIED. IT IS FURTHER ORDERED that Petitioner's Motion for Stay of Execution (Doc. 121) is DENIED. Signed by Senior Judge Robert C Broomfield on 7/6/12.(LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Wayne Cook, 10 Petitioner, 11 v. 12 13 14 Charles L. Ryan, et al., Respondents. 15 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-97-00146-PHX-RCB DEATH PENALTY CASE ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT 16 Before the Court is Petitioner’s motion for relief from judgment pursuant to Rule 17 60(b)(6) of the Federal Rules of Civil Procedure. (Doc. 118.) The motion is based on the 18 Supreme Court’s recent decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which held 19 that ineffectiveness of post-conviction counsel may serve to excuse the procedural default 20 of claims alleging trial counsel ineffectiveness. Petitioner argues that Martinez provides a 21 proper ground for this Court to reopen his federal habeas proceeding and to find cause for 22 the procedural default of a claim alleging a Sixth Amendment violation based on counsel’s 23 failure to undertake a timely mitigation investigation. Respondents oppose the motion. 24 (Doc. 119.) As explained herein, the Court concludes that Petitioner has failed to establish 25 extraordinary circumstances to justify reopening this case. Even if the Court reconsidered 26 its procedural bar determination, Petitioner has not demonstrated cause under Martinez to 27 excuse the default. 28 1 BACKGROUND 2 In 1988, a jury convicted Petitioner of two counts of first-degree murder for the brutal 3 killing of two acquaintances in Lake Havasu City. Details of the crimes are set forth in the 4 Arizona Supreme Court’s opinion upholding Petitioner’s convictions and sentences. See 5 State v. Cook, 170 Ariz. 40, 45-46, 821 P.2d 731, 736-37 (1991) (“Cook I”). 6 Prior to trial, Petitioner chose to waive his right to counsel. After strongly advising 7 Petitioner against self-representation, the trial court accepted Petitioner’s waiver as knowing, 8 intelligent, and voluntary. Following conviction, Petitioner continued to represent himself 9 and presented no mitigating evidence at the sentencing hearing, stating that the “[o]nly 10 sentence I will accept from this Court at this time is the penalty of death, your Honor. I have 11 nothing further.” Cook v. Schriro, 538 F.3d 1000, 1011 (9th Cir. 2008) (“Cook II”). After 12 reviewing the presentence report, pre-trial mental health evaluations, the State’s sentencing 13 memorandum, a letter from Cook, the trial evidence, and matters from hearings in the case, 14 the trial court found several aggravating factors and no mitigating factors sufficient to 15 outweigh the aggravation, and sentenced Petitioner to death. 16 On appeal, Petitioner argued that the trial court erred by allowing him to waive 17 appointed counsel. In rejecting this claim, the Arizona Supreme Court observed that “[w]hile 18 Cook certainly lacked a lawyer’s skills, the record demonstrates that he was intellectually 19 competent, understood the trial process, and was capable of making—and did make—rational 20 decisions in managing his case.” Cook I, 170 Ariz. at 48, 821 P.2d at 739. 21 Petitioner also sought post-conviction relief (“PCR”) under Rule 32 of the Arizona 22 Rules of Criminal Procedure. Among other claims in the PCR petition, Petitioner asserted 23 that pre-trial counsel had been ineffective in failing to investigate and to prepare for trial and 24 sentencing and that this deficient representation impermissibly forced Petitioner to choose 25 self-representation. Following an evidentiary hearing, the trial court denied PCR relief. The 26 court first found no prejudice from any alleged deficiencies by pre-trial counsel because the 27 court could only speculate as to what could have happened had counsel represented 28 Petitioner at trial. The court also found that Petitioner had failed to identify any specific -2- 1 action that was ineffective and that no caselaw required a judge to inquire about the 2 effectiveness of appointed counsel in determining whether a waiver of counsel is knowing, 3 intelligent, and voluntary. Petitioner sought rehearing of the waiver issue but not the separate 4 claim alleging ineffectiveness by pre-trial counsel. Following denial of rehearing, the 5 Arizona Supreme Court summarily denied a petition for review. 6 In January 1997, Petitioner initiated federal habeas corpus proceedings. Among other 7 claims, Petitioner asserted in his habeas petition that his decision to waive counsel was not 8 knowing, voluntary, and informed because he was forced to choose between ineffective 9 counsel and self-representation. He also asserted as a stand-alone claim that pre-trial 10 counsel’s representation was constitutionally deficient. In September 1999, this Court 11 determined that the ineffectiveness claim was procedurally defaulted because Petitioner had 12 failed to include it in his motion for rehearing from the denial of state PCR relief and had not 13 established cause to excuse the default. (Doc. 39 at 14-15.) In March 2006, the Court denied 14 relief on the remainder of Petitioner’s claims. With regard to the waiver issue, the Court 15 determined that no clearly established federal law required the trial court to inquire into 16 Petitioner’s potential dissatisfaction with counsel prior to allowing him to waive counsel. 17 (Doc. 90 at 12-15.) 18 On appeal, the Ninth Circuit affirmed. In a section titled “Ineffective assistance of 19 pre-trial counsel,” the court concluded that the state court’s factual determinations 20 concerning pre-trial counsel’s representation were supported by the record and that its rulings 21 on Petitioner’s ineffectiveness claims were not objectively unreasonable. Cook II, 538 F.3d 22 at 1016. The court also determined that the Supreme Court “has never held that a defendant 23 who does not inform the court that he wants to represent himself because he believes that his 24 counsel is ineffective was coerced into representing himself.” Id. Regarding Petitioner’s 25 allegation that pre-trial counsel was ineffective for failing to investigate mitigating evidence, 26 the court agreed with this Court that the claim was procedurally barred because under the 27 version of Arizona Rule of Criminal Procedure 32.9 applicable to Petitioner’s case the failure 28 to detail each ground of relief in a motion for rehearing waived further review of that issue. -3- 1 Id. at 1026-27. Furthermore, the court found that counsel ineffectiveness did not constitute 2 cause for the procedural default because Petitioner had no right to counsel in state court at 3 the motion for rehearing stage. Id. at 1027, citing State v. Smith, 184 Ariz. 456, 459, 910 4 P.2d 1, 4 (1996) (“After counsel or the pro per defendant submits the post-conviction petition 5 to the court and the trial court makes its required review and disposition, counsel’s 6 obligations are at an end.”). 7 In January 2009, the Supreme Court denied a petition for certiorari, effectively ending 8 these federal habeas corpus proceedings, and the Arizona Attorney General sought a warrant 9 of execution. At the time, litigation concerning the constitutionality of Arizona’s lethal- 10 injection protocol was pending in both state and federal courts, and the Arizona Supreme 11 Court declined to issue a warrant. Instead, the court directed Petitioner to initiate a new state 12 PCR proceeding to litigate the constitutionality of Arizona’s lethal-injection protocol, and 13 Petitioner promptly filed a second PCR petition. The petition challenged the execution 14 protocol but also asserted among other claims that pre-trial counsel had been ineffective for 15 failing to conduct a mitigation investigation. The trial court denied relief in December 2009, 16 finding in part that Petitioner’s ineffectiveness claims had been previously litigated and 17 therefore were precluded. The Arizona Supreme Court denied a petition for review in 18 September 2010, and the State again sought a warrant of execution. 19 In November 2010, while the warrant request was pending, Petitioner filed a third 20 PCR petition seeking relief on the grounds of newly-discovered material facts that probably 21 would have changed his sentence and the existence of facts establishing that the trial court 22 would not have imposed the death penalty. See Ariz. R. Crim. 32.1(e) and (h) (providing 23 exceptions to preclusion for successive petitions raising claims based on newly-discovered 24 evidence and actual innocence). Specifically, Petitioner asserted that he only recently was 25 diagnosed as suffering from post-traumatic stress disorder (“PTSD”) and organic brain 26 dysfunction and that this mitigation probably would have resulted in a non-death sentence. 27 On January 27, 2011, the trial court denied relief, stating “unequivocally that if it had known 28 in 1988 that the Defendant had been diagnosed with post-traumatic stress disorder at the time -4- 1 of the murders it still would have imposed the death penalty.” The court further noted that 2 the subsequent PTSD diagnosis “simply gave a name to significant mental health issues that 3 were already known to the Court at the time of sentencing. Knowing that name and knowing 4 the symptomology of that condition would not have changed the sentencing decision made 5 by the Court.” Finally, the court observed that Petitioner had failed to diligently develop his 6 PTSD evidence. 7 On February 8, 2011, the Arizona Supreme Court issued a warrant of execution for 8 April 5, 2011. On March 8, 2011, Petitioner sought review in the state supreme court of the 9 trial court’s denial of the third PCR petition. He argued inter alia that his alleged lack of 10 diligence in developing the PTSD diagnosis was due to the ineffective assistance of counsel 11 during his first PCR proceeding and asserted that he had the right to effective post-conviction 12 counsel under the Sixth Amendment. The Arizona Supreme Court summarily denied review 13 on March 22, 2011. 14 Petitioner then filed a petition for certiorari and asked the Supreme Court to stay his 15 execution pending resolution of certiorari in Martinez v. Ryan, a case that presented the 16 question of whether the Sixth Amendment requires the effective assistance of post-conviction 17 counsel when a post-conviction proceeding is the first opportunity to raise trial 18 ineffectiveness claims. On April 4, 2011, the Supreme Court granted the motion for stay 19 pending disposition of Petitioner’s certiorari petition. See Cook v. Arizona, 131 S. Ct. 1847 20 (2011). 21 On March 20, 2012, the Court in Martinez v. Ryan declined to reach the constitutional 22 question on which certiorari had been granted. 132 S. Ct. at 1315. Instead, the Court 23 adopted an equitable rule, finding that in order to “protect prisoners with a potentially 24 legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the 25 unqualified statement in Coleman [v. Thompson, 501 U.S. 722 (1991),] that an attorney’s 26 ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse 27 a procedural default.” Id. The Court held that in states like Arizona, which require 28 ineffective assistance of trial counsel claims to be raised in an initial-review collateral -5- 1 proceeding, failure of counsel in an initial-review collateral proceeding to raise a substantial 2 trial ineffectiveness claim may provide cause to excuse the procedural default of such a 3 claim. Id. 4 Less than a week after issuing the Martinez opinion, the Court denied Petitioner’s 5 certiorari petition, Cook v. Arizona, 132 S. Ct. 1790 (2012), and the State sought issuance of 6 a new warrant of execution. Petitioner then requested leave to file an untimely petition for 7 rehearing from the denial of certiorari in these federal habeas proceedings. The motion urged 8 rehearing in light of Martinez and requested that Petitioner’s federal habeas case be 9 remanded back to the Ninth Circuit for a determination of whether ineffectiveness by post- 10 conviction counsel constitutes cause for the procedural default of his trial ineffectiveness 11 claims. The Court denied the request on May 29, 2012. Cook v. Schriro, No. 08-7229, 2012 12 WL 1912258 (U.S. May 29, 2012). 13 On June 5, 2012, Petitioner filed the instant motion, arguing that extraordinary 14 circumstances based on Martinez justify reopening this Court’s prior judgment and that post- 15 conviction counsel’s ineffectiveness constitutes cause to excuse the default of his claim 16 alleging pre-trial counsel ineffectiveness. On the same day, Petitioner filed a second petition 17 for writ of habeas corpus raising anew a claim of ineffective assistance of pre-trial counsel.1 18 On June 12, 2012, the Arizona Supreme Court issued a warrant of execution for 19 August 8, 2012. Subsequently, Petitioner filed a motion for stay of execution pending 20 disposition of his Rule 60(b) motion and/or new habeas petition. DISCUSSION 21 22 Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from 23 judgment on several grounds, including the catch-all category “any other reason justifying 24 relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6). A motion under 25 subsection (b)(6) must be brought “within a reasonable time,” Fed. R. Civ. P. 60(c)(1), and 26 1 27 28 The Court addresses Petitioner’s newly-filed petition in a separate order, concluding that it constitutes a prohibited second or successive petition under the dictates of 28 U.S.C. § 2244(b) and therefore must be dismissed. -6- 1 requires a showing of “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 2 (2005). 3 I. 4 For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth 5 in 28 U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court 6 explained that a Rule 60(b) motion constitutes a second or successive habeas petition when 7 it advances a new ground for relief or “attacks the federal court’s previous resolution of a 8 claim on the merits.” Id. at 532. “On the merits” refers “to a determination that there exist 9 or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 10 2254(a) and (d).” Id. at n.4. The Court further explained that a Rule 60(b) motion does not 11 constitute a second or successive petition when the petitioner “merely asserts that a previous 12 ruling which precluded a merits determination was in error—for example, a denial for such 13 reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. Second or Successive Petition 14 Respondents argue that the instant motion constitutes a prohibited second or 15 successive habeas petition because Petitioner’s claims of trial ineffectiveness were rejected 16 on the merits “in the context of” Petitioner’s claim that counsel ineffectiveness led to 17 Petitioner’s decision to represent himself. (Doc. 119 at 6.) In response, Petitioner asserts 18 that Respondents misapprehend his argument and that the already-resolved claim of 19 ineffectiveness-induced waiver of trial counsel is separate from the claim that counsel was 20 ineffective for failing to investigate and develop a mitigation plan. (Doc. 120 at 2.) 21 In its order analyzing Petitioner’s waiver-of-counsel claim, this Court did not address 22 the merits of Petitioner’s allegations of ineffectiveness by trial counsel, having previously 23 found them to be procedurally barred. However, on appeal, prior to addressing the waiver 24 issue, the Ninth Circuit found that “the trial court’s rulings on Cook’s ineffective assistance 25 of counsel claims were not contrary to or unreasonable applications of Strickland.” Cook II, 26 538 F.3d at 1016. Although it appears the appellate court may have reached the merits of 27 Petitioner’s ineffectiveness claims, a closer reading of the opinion persuades this Court that 28 Petitioner’s Rule 60(b) motion does not constitute an unauthorized successive petition. -7- 1 First, the Ninth Circuit addressed ineffectiveness only with respect to several trial- 2 related issues, finding no merit to Petitioner’s claimed prejudice from the lost opportunity 3 to have a stronger presentation on reasonable doubt, to impeach the co-defendant, and to 4 challenge the co-defendant’s plea agreement. Id. Further, in the context of analyzing 5 Petitioner’s waiver claim, the appellate court did not discuss counsel’s alleged failure to 6 investigate mitigating evidence. Rather, the court expressly affirmed this Court’s finding of 7 procedural default as to the mitigation-related ineffectiveness claim. Id. at 1024-26. Because 8 neither the Ninth Circuit nor this Court expressly addressed the merits of Petitioner’s 9 sentencing ineffectiveness claim, and both courts clearly found the claim procedurally barred, 10 this Court has jurisdiction under Gonzalez to consider Petitioner’s Rule 60(b) motion, free 11 of the constraints imposed by 28 U.S.C. § 2244(b) upon successive petitions.2 See Ruiz v. 12 Quarterman, 504 F.3d 523, 526 (5th Cir. 2007) (finding § 2244(b) inapplicable where Rule 13 60(b) motion sought to reopen judgment on procedurally barred claim). 14 II. Extraordinary Circumstances 15 The Court turns now to the issue raised in the instant motion—whether in this case 16 Martinez constitutes extraordinary circumstances justifying relief under Rule 60(b)(6) to 17 reconsider the Court’s procedural bar ruling. When a petitioner seeks post-judgment relief 18 based on an intervening change in the law, the Ninth Circuit has directed district courts to 19 balance numerous factors on a case-by-case basis. Phelps v. Alameida, 569 F.3d 1120, 1133 20 (9th Cir. 2009); see also Lopez v. Ryan, 678 F.3d 1131, 1135-37 (9th Cir. 2012). These 21 include but are not limited to: (1) whether “the intervening change in the law . . . overruled 22 an otherwise settled legal precedent;” (2) whether the petitioner was diligent in pursuing the 23 24 25 26 27 28 2 Although not raised by Respondents in their opposition, the Court observes that Petitioner’s motion possibly could be construed as an impermissible second or successive petition because the sentencing ineffectiveness claim Petitioner ultimately seeks to litigate if the Court were to find cause under Martinez is fundamentally different from the defaulted sentencing ineffectiveness claim raised in the amended federal habeas petition. Because Respondents have not made this assertion and the motion fails on other grounds, the Court does not address the issue here. -8- 1 issue; (3) whether “the final judgment being challenged has caused one or more of the parties 2 to change his position in reliance on that judgment;” (4) whether there is “delay between the 3 finality of the judgment and the motion for Rule 60(b)(6) relief;” (5) whether there is a “close 4 connection” between the original and intervening decisions at issue in the Rule 60(b) motion; 5 and (6) whether relief from judgment would upset the “delicate principles of comity 6 governing the interaction between coordinate sovereign judicial systems.” Phelps, 569 F.3d 7 at 1135-40. After consideration of these factors, the Court determines that the balance 8 weighs against granting post-judgment relief. 9 Change in the Law 10 The first factor considers the nature of the intervening change in the law. In Lopez, 11 another capital case from Arizona in which the petitioner sought relief under Rule 60(b) 12 based on Martinez, the court found that the Supreme Court’s creation of a narrow exception 13 to otherwise settled law in Coleman “weigh[ed] slightly in favor of reopening” the 14 petitioner’s habeas case. 678 F.3d at 1136. “Unlike the ‘hardly extraordinary’ development 15 of the Supreme Court resolving an existing circuit split, Gonzalez, 545 U.S. at 536, the 16 Supreme Court’s development in Martinez constitutes a remarkable—if ‘limited,’ Martinez, 17 132 S. Ct. at 1319—development in the Court’s equitable jurisprudence.” Id. Thus, based 18 on Lopez, this factor weighs slightly in Petitioner’s favor. But see Adams v. Thaler, 679 F.3d 19 312, 320 (5th Cir. 2012) (finding that Martinez is “simply a change in decisional law” and 20 does not constitute an extraordinary circumstance justifying postconviction relief). 21 Diligence 22 The second factor, whether Petitioner was diligent in pursuing the issue, also weighs 23 in Petitioner’s favor. This is not a case, such as Lopez, where the petitioner not only failed 24 to advance post-conviction counsel’s ineffectiveness as cause for the default of his 25 sentencing ineffectiveness claim, but argued that such counsel had in fact been diligent in 26 developing the claim. 678 F.3d at 1137. Here, Petitioner argued to the Ninth Circuit that 27 ineffective assistance of post-conviction counsel constituted cause because the post- 28 conviction proceeding was the first opportunity he had to raise trial ineffectiveness claims -9- 1 and thus he was not subject to the preclusive rule of Coleman. Appellant’s Supplemental 2 Reply Brief, Cook v. Schriro, No. 06-99005, 2007 WL 4733563, at *18 (9th Cir. Nov. 27, 3 2007). In rejecting the claim, the Ninth Circuit observed that the default occurred during 4 post-conviction proceedings and that ineffective assistance of post-conviction counsel could 5 not serve as cause because Petitioner had no constitutional right to such counsel. Cook II, 6 538 F.3d at 1027. Petitioner clearly acted with diligence. 7 Reliance 8 The third factor is whether granting relief under Rule 60(b) would “‘undo the past, 9 executed effects of the judgment,’ thereby disturbing the parties’ reliance interest in the 10 finality of the case.” Phelps, 569 F.3d at 1137 (quoting Ritter v. Smith, 811 F.2d 1398, 1402 11 (11th Cir. 1987)). Post-judgment relief “is less warranted when the final judgment being 12 challenged has caused one or more of the parties to change his legal position in reliance on 13 that judgment.” Id. at 1138. 14 In Lopez, the court found that the State’s and the victim’s interest in finality, 15 especially after a warrant of execution has been obtained and an execution date set, weigh 16 against granting post-judgment relief. 678 F.3d at 1136; see also Calderon v. Thompson, 523 17 U.S. 538, 556 (1998) (discussing finality in a capital case). Accordingly, this factor weighs 18 against reopening Petitioner’s habeas case. 19 Delay 20 The fourth factor looks at whether a petitioner seeking to have a new legal rule 21 applied to an otherwise final case has petitioned the court for reconsideration “with a degree 22 of promptness that respects the strong public interest in timeliness and finality.” Phelps, 569 23 F.3d at 1138 (internal quotation omitted). Here, the motion was filed only days after the 24 Supreme Court denied Petitioner’s motion to file an untimely request for rehearing of the 25 order denying certiorari of the Ninth Circuit’s decision affirming the denial of habeas relief. 26 And that motion was itself filed just two weeks following the Supreme Court’s denial of 27 Petitioner’s certiorari petition from the Arizona Supreme Court’s denial of his successive 28 state post-conviction petition, in which Petitioner asserted a Sixth Amendment right to - 10 - 1 effective post-conviction counsel. Petitioner did not delay seeking relief based on Martinez, 2 and this factor weighs in his favor. 3 Close Connection 4 The fifth factor “is designed to recognize that the law is regularly evolving.” Phelps, 5 569 F.3d at 1139. The mere fact that tradition, legal rules, and principles inevitably shift and 6 evolve over time “cannot upset all final judgments that have predated any specific change 7 in the law.” Id. Accordingly, the nature of the change is important and courts should 8 examine whether there is a “close connection” between the original and intervening decision 9 at issue in a Rule 60(b)(6) motion. Id. 10 In Phelps, the intervening change in the law directly overruled the decision for which 11 reconsideration was sought, and this factor supported reconsideration. The same cannot be 12 said here because Petitioner’s procedural default occurred during appeal of his post- 13 conviction petition, not its initial filing. 14 In Martinez, the petitioner’s post-conviction counsel failed to raise any trial 15 ineffectiveness claims in the initial state post-conviction petition. When Martinez later 16 sought to raise trial ineffectiveness claims in a successive state post-conviction petition, the 17 claims were found precluded under state law and then found procedurally defaulted in federal 18 habeas proceedings. In carving out a narrow exception to the rule that ineffectiveness of 19 post-conviction counsel cannot constitute cause for a procedural default, the Court in 20 Martinez emphasized that the 21 22 23 24 25 26 rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State’s appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons. Martinez, 132 S. Ct. at 1320 (citations omitted; emphasis added). 27 In this case, Petitioner’s post-conviction counsel raised his pre-trial ineffectiveness 28 claims in the initial post-conviction petition (the “first occasion” to raise such claims), and - 11 - 1 they were denied on the merits by the state court following an evidentiary hearing. However, 2 post-conviction counsel failed to include the ineffectiveness claims in a motion for rehearing 3 from the denial of post-conviction relief or in a discretionary petition for review to the 4 Arizona Supreme Court, both of which were necessary steps at that time to properly exhaust 5 the claims in state court and, consequently, for federal habeas review. See O’Sullivan v. 6 Boerckel, 526 U.S. 838, 845 (1999) (requiring state prisoners to complete one round of 7 state’s established appellate review process to exhaust claims for federal review); Cook II, 8 538 F.3d at 1026 (“Prior to the amendments to Rule 32.9, the failure of the petitioner to file 9 a motion for rehearing setting forth in detail the grounds for rehearing waived further 10 review.”). 11 Under the plain language of Martinez, post-conviction counsel’s failure to appeal the 12 state court’s denial of the ineffectiveness claims cannot constitute cause for the procedural 13 default because the Martinez exception does not extend to attorney errors “beyond the first 14 occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” 132 15 S. Ct. at 1320; see also Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (“Arnold’s 16 multiple ineffective assistance claims were litigated in his initial-review collateral 17 proceeding, but not preserved on appeal. Thus, unlike Martinez, Arnold has already had his 18 day in court; deprivation of a second day does not constitute cause.”). Indeed, as recognized 19 by the Ninth Circuit in this case, under Arizona law a defendant is entitled to counsel only 20 through the disposition of a first post-conviction petition. Cook II, 538 F.3d at 1027; see also 21 Smith, 184 Ariz. at 459, 910 P.2d at 4 (“Our constitution does not require, and the rules do 22 not extend, the right to appointed counsel for indigent defendants in Rule 32 proceedings 23 beyond the trial court’s mandatory consideration and disposition of the PCR.”) “Because 24 Cook had no constitutional right to counsel at the motion for rehearing stage, any errors by 25 his counsel could not constitute cause to excuse the default.” Cook II, 538 F.3d at 1027 26 (emphasis added) (citing Coleman and Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990)). 27 The lack of connection between Petitioner’s case and Martinez weighs heavily against 28 reconsideration. - 12 - 1 Comity 2 The last factor concerns the need for comity between independently sovereign state 3 and federal judiciaries. Phelps, 569 F.3d at 1139. The Ninth Circuit has determined that 4 principles of comity are not upset when an erroneous legal judgment, if left uncorrected, 5 “would prevent the true merits of a petitioner’s constitutional claims from ever being heard.” 6 Id. at 1140. For example, in Phelps, the district court dismissed the petition as untimely, thus 7 precluding any federal habeas review of the petitioner’s claims. The court found that this 8 favored the grant of post-judgment relief because dismissal of a first habeas petition “denies 9 the petitioner the protections of the Great Writ entirely.” Id. 10 Here, the Court’s judgment did not preclude review of all of Petitioner’s federal 11 constitutional claims. A number of the claims, including the trial court’s failure to inquire 12 about the ineffectiveness of counsel before permitting Petitioner’s waiver of counsel, were 13 addressed on the merits in both the district and appellate courts. More critically, the state 14 court held an evidentiary hearing and considered the merits of Petitioner’s pre-trial 15 ineffectiveness claims. Additionally, the state court recently considered the merits of 16 Petitioner’s expanded sentencing ineffectiveness claim during the third PCR proceeding. In 17 light of these circumstances, the comity factor does not favor Petitioner. 18 Conclusion 19 The Court has evaluated each of the factors set forth in Phelps in light of the particular 20 facts of this case. Some weigh in Petitioner’s favor. However, the Court finds that the lack 21 of connection between Petitioner’s case and the Martinez decision is a substantial factor that, 22 when weighed with the reliance and comity factors, tips the balance against granting post- 23 judgment relief. Accordingly, the Court concludes that Petitioner’s motion to reopen 24 judgment fails to demonstrate the extraordinary circumstances necessary to grant relief under 25 Rule 60(b)(6). 26 III. Cause for Procedural Default 27 Even if the Court granted the motion under Rule 60(b) to reconsider whether 28 Petitioner can establish cause for his procedural default, Petitioner would not be entitled to - 13 - 1 the relief he seeks for two reasons. First and foremost, as already discussed, the Supreme 2 Court’s holding in Martinez does not apply to alleged ineffectiveness by post-conviction 3 appellate counsel, and the procedural default at issue here occurred when Petitioner’s post- 4 conviction counsel failed to preserve the pre-trial ineffectiveness claims for appeal. Second, 5 Petitioner has not demonstrated that the defaulted ineffectiveness claim is substantial. 6 Therefore, even if the narrow Martinez exception applied, it does not provide cause to excuse 7 the procedural default here. 8 In Martinez, the Court held that a prisoner must demonstrate that the underlying 9 ineffectiveness claim is a substantial one to overcome any procedural default of that claim. 10 132 S. Ct. at 1318. “Thus, Martinez requires that a petitioner’s claim of cause for a 11 procedural default be rooted in ‘a potentially legitimate claim of ineffective assistance of trial 12 counsel.’” Lopez, 678 F.3d at 1137-38 (citing Martinez, 132 S. Ct. at 1318); see also Leavitt 13 v. Arave, No. 12-35427, 2012 WL 2086358, at *1 (9th Cir. June 8, 2012). Under Strickland 14 v. Washington, 466 U.S. 668, 687 (1994), an ineffective assistance claim requires a showing 15 that counsel’s performance was both “deficient” and “prejudicial” to the petitioner’s case. 16 Petitioner argues that pre-trial counsel was ineffective for failing to conduct a prompt 17 investigation into mitigation early in the case. (Doc. 118 at 24-25.) Although neither his 18 initial state post-conviction petition nor amended federal habeas petition detail what counsel 19 should have done or what potentially mitigating evidence would have been uncovered, 20 Petitioner asserts in his Rule 60(b) motion that a thorough investigation of Petitioner’s 21 childhood would have revealed a history of physical and sexual abuse by family members, 22 as well as repeated sexual abuse by a house parent and a gang rape by peers when Petitioner 23 was 15 and living at a group home for boys. He further asserts that a proper investigation 24 would have revealed that he has a history of alcohol and drug abuse resulting from his 25 traumatic upbringing, attempted suicide on numerous occasions, and suffers from post- 26 traumatic stress disorder and impaired cognitive functioning. 27 Prior to trial and his waiver of counsel, Petitioner was evaluated by two mental health 28 experts to determine competency at the time of the offense and competency to stand trial. - 14 - 1 Dr. Daniel Wynkoop, a psychologist, detailed Petitioner’s background and history, including 2 his unstable early homelife, juvenile delinquency, early onset of drug and alcohol use, sexual 3 abuse by a house parent at a boys’ home, sexual molestation at a bus station, repeated 4 hospitalizations for depression and suicidal tendencies, and difficulty maintaining 5 employment and relationships. Psychological testing revealed adequate intellectual resources 6 but some deficits in understanding cause and effect relationships, lack of social judgment, 7 and some failure to understand the implications of behavior. Dr. Wynkoop diagnosed 8 Petitioner as having a borderline personality disorder, with alcohol, amphetamine, and 9 marijuana addictions. He observed nothing to suggest organic brain damage or a thought 10 disorder. In Dr. Wynkoop’s view, Petitioner’s alcohol and drug use at the time of the crime 11 likely impaired his ability to exercise judgment. 12 Dr. Eugene Almer, a psychiatrist, also described some of Petitioner’s social history. 13 He observed that Petitioner’s mother was an alcoholic with a manic depressive illness, who 14 was frequently hospitalized, and that Petitioner lived in various foster and group homes. 15 Petitioner relayed that he began drinking at 14, smoking marijuana at 15, taking barbiturates 16 and hallucinogenics at 16 and 17 respectively, and using amphetamines at 25. Dr. Almer 17 reviewed “a great number of medical records” from hospitals in Wyoming and Arizona, 18 including voluminous records from the Kingman Regional Hospital that are “replete with 19 psychological reports, psychiatric evaluations and numerous treatment records” describing 20 “various types of alcohol and drug abuse and personality disorder problems in addition to the 21 diagnosis of depression or dysthymic disorder.” Dr. Almer also reviewed a September 1987 22 investigative report that included a taped interview of Petitioner’s mother and stepfather, who 23 described Petitioner’s life history, psychiatric problems, acting-out behavior, and various 24 stays at institutions as a teenager. In addition, Dr. Almer noted that a CT scan from 1982 was 25 normal. With regard to Petitioner’s mental state at the time of the offense, Dr. Almer 26 concluded that Petitioner probably was under the heavy influence of alcohol and drugs, 27 which seriously impaired his judgment and produced more impulsive behavior. 28 From these evaluations, it is evident that pre-trial counsel obtained a substantial - 15 - 1 number of records and background information concerning Petitioner. He also enlisted an 2 investigator to interview, at minimum, Petitioner’s mother and stepfather. Whether counsel 3 would have pursued additional mitigating evidence had he remained on the case cannot be 4 known. Consequently, the Court concludes that Petitioner cannot establish deficient 5 performance. However, even assuming pre-trial counsel acted deficiently, Petitioner “fails 6 to meet the Martinez test of substantiality as to prejudice.” Lopez, 678 F.3d at 1138; see also 7 Leavitt, 2012 WL 2086358, at *1 (finding no substantial ineffectiveness claims where record 8 demonstrated no prejudice from alleged ineffectiveness). 9 Petitioner’s first prejudice argument relies on a declaration from the prosecutor stating 10 that he would not have sought the death penalty if he had known of Petitioner’s abusive 11 childhood and mental problems. However, in addressing this “newly discovered” evidence 12 during the third PCR proceeding, the state court expressly rejected the argument as the 13 “ultimate in speculation . . . based on the assertion of a prosecutor 23 years after the fact that 14 he would have made a different charging decision.” State v. Cook, No. CR-9358, at 3 15 (Maricopa Co. Sup. Ct. Jan. 11, 2011). The court further explained: 16 17 18 19 20 21 22 23 24 25 26 27 28 To the extent that Mr. Larsen’s opinion is relevant, the question is not what the Eric Larsen of today, having practiced criminal defense for at least the last 15 years, would do in a case involving identical facts if he were somehow to be appointed as a special prosecutor in a potential capital case. The question is what the prosecutor Eric Larsen would have done back in 1987 and 1988 without the benefit of the experience of criminal defense work, including defense of capital cases, to broaden his horizons and perspectives. The Court would like to avoid getting into a discussion of personalities in this Order and recognizes that a determination of credibility based solely upon affidavits is improper, unless perhaps an affidavit is inherently incredible on its face. The Court recalls, however, that Mr. Larsen was an aggressive prosecutor and that there were times when he and the Court clashed as to how the Court handled this case. The Court also recalls an unrelated case prosecuted around this same time by Mr. Larsen in which a defendant claimed that his sentence should be mitigated by a diagnosis of post-traumatic stress disorder. The Court recalls that Mr. Larsen, who had served in the military, indicated that many military personnel, presumably including himself, did not necessarily believe in the viability of post-traumatic stress disorder as a psychiatric diagnosis and that it should not be treated as a relevant consideration in sentencing. The Court acknowledges that it is skating on thin procedural ice by making these comments because it may seem to be deciding issues of credibility based on affidavits rather than sworn testimony subject to cross- 16 - 1 2 3 4 5 6 7 8 9 10 11 examination. The Court is engaging in this analysis mainly to point out the problems inherent in trying to determine how a prosecutor would have exercised his discretion 23 years ago with the added knowledge of a diagnosis of post-traumatic stress disorder but without the added experience and perspective he undoubtedly gained in the ensuing years. The Court is also aware that in 1987 and 1988, long before the Ring decision changed the landscape of capital sentencing, the Mohave County Attorney’s Office sought the death penalty on a fairly regular basis. This was a case involving the torture, mutilation and eventually killing of 2 completely innocent victims who had the misfortune of working with and knowing the Defendant and the co-defendant in this case. It is unfathomable to the Court that the Mohave County Attorney’s Office during the time that this case was pending would not have sought the death penalty even for a defendant who was known to have been diagnosed with post-traumatic stress disorder. The Court finds that the affidavit from the former prosecutor of this case is speculation and conjecture. Id. at 4-5. 12 This Court concurs in the conclusion of the state court that Petitioner cannot establish 13 prejudice from pre-trial counsel’s alleged failure to conduct a timely mitigation investigation 14 by claiming more than 20 years after trial that the prosecutor would not have sought the death 15 penalty. The prosecutor was aware prior to trial of Petitioner’s mental difficulties, alcohol 16 and substance abuse problems, and history of attempted suicides. He was also well versed 17 in the facts of these gruesome murders. As noted by the state court, it is pure speculation to 18 say what probably would have occurred had the prosecutor been provided additional 19 information about Petitioner’s difficult childhood and newly-diagnosed post-traumatic stress 20 disorder. 21 Petitioner also argues that development of a mitigation case would have ensured that 22 such information was available to and considered by the sentencing judge. Even though 23 Petitioner chose not to argue for leniency or present mitigation during the sentencing hearing, 24 in his view there is a reasonable probability the mental health experts who evaluated him 25 before trial would have determined that he suffered from post-traumatic stress disorder if 26 they had known more about his background and, consequently, the trial court would not have 27 sentenced him to death. This argument is also unpersuasive because, like the prosecutor’s 28 decision to seek the death penalty, it rests on speculation about the experts and assumes any - 17 - 1 additional evidence developed by pre-trial counsel would have been available to the 2 sentencing judge despite Petitioner’s decision not to make a mitigation presentation. See, 3 e.g., Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (finding no prejudice under Strickland 4 where the defendant would have refused to allow counsel to present mitigation regardless of 5 what information counsel might have uncovered during a more thorough investigation). 6 Moreover, the trial judge who actually sentenced Petitioner has considered the newly- 7 developed mitigation evidence and concluded there is no reasonable probability the 8 sentencing outcome would have been different: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is not a case where the Court has to speculate about whether new evidence might have caused a jury to reach a not guilty verdict had they known of such evidence. This is not a case where the Court has to speculate about whether new evidence might have caused a jury to not recommend a death sentence had they known of such evidence. Only the Court knows for sure what it would have done, and the only speculation involved is in the process of remembering the judicial officer that it was 22 years ago. The Court certainly recognizes the problems inherent in this analysis. Counsel may have a legitimate concern that the Court can say whatever it wants in an order, without testifying under oath, being cross-examined or subjected to impeachment. The fact remains that this Court has had to make similar decisions in countless Rule 32 proceedings in which claims were made that different circumstances, usually involving more effective representation, would have resulted in different sentences being imposed. The fact that this is a death penalty case does not change the process, it just heightens the significance of the process. The Court determines unequivocally that if it had known in 1988 that the Defendant had been diagnosed with post-traumatic stress disorder at the time of the murders it still would have imposed the death penalty. .... The Court concludes for all the above reasons that the subsequent diagnosis of post-traumatic stress disorder simply gave a name to significant mental health issues that were already known to the Court at the time of sentencing. Knowing that name and knowing the symptomology of that condition would not have changed the sentencing decision by the Court. The recent diagnosis is not material under Rule 32.1(e) because it would not have probably resulted in a different sentence being imposed by this Court. State v. Cook, No. CR-9358, at 6-7 (Maricopa Co. Sup. Ct. Jan. 11, 2011). 26 Petitioner cites caselaw demonstrating that an ineffectiveness claim may be 27 established even where a defendant takes over his own representation. However, the claimed 28 deficiency still must satisfy both the performance and prejudice prongs of Strickland. As just - 18 - 1 discussed, Petitioner cannot make that showing here. Accordingly, even if the Martinez 2 exception applied, Petitioner has not demonstrated that post-conviction counsel was 3 ineffective for failing to raise a substantial sentencing ineffectiveness claim. 4 CERTIFICATE OF APPEALABILITY 5 To the extent a certificate of appealability is needed for an appeal from this Order, see 6 United States v. Washington, 653 F.3d 1057, 1065 n.8 (9th Cir. 2011) (noting open question 7 whether COA required to appeal denial of legitimate Rule 60(b) motion), cert. denied, 132 8 S. Ct. 1609 (2012), the Court finds that reasonable jurists could debate its denial of 9 Petitioner’s Rule 60(b)(6) motion. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 10 473, 484 (2000). Accordingly, the Court grants a certificate of appealability on this issue. 11 Based on the foregoing, 12 IT IS ORDERED that Petitioner’s Motion for Relief from Judgment Pursuant to Rule 13 14 15 16 60(b)(6) (Doc. 118) is DENIED. IT IS FURTHER ORDERED that Petitioner’s Motion for Stay of Execution (Doc. 121) is DENIED. DATED this 6th day of July, 2012. 17 18 19 20 21 22 23 24 25 26 27 28 - 19 -

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