Apelt, et al v. Schriro, et al

Filing 359

ORDER denying Claims 1-B, 1-D, 11, 14, 15, 17, 26, and 27. IT IS FURTHER ORDERED no later than September 18, 2015, each side shall submit a brief of no more than fifteen pages addressing whether an evidentiary hearing on Claim 12 is needed and, if so , the proposed scope of the evidentiary hearing. No later than September 28, 2015, each side shall submit responsive briefs of no more than ten pages. No replies are permitted absent further order. Signed by Senior Judge Roslyn O Silver on 9/1/2015. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Apelt,

No. CV-98-00882-PHX-ROS
Petitioner,

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ORDER

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v.

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Charles L. Ryan,

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Respondent.

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Michael Apelt is an Arizona death row inmate seeking federal habeas relief under
a wide variety of theories. The Court previously rejected most of Apelt’s conviction-

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related claims. (Doc. 210.) This Order addresses his remaining conviction-related claim
and all of his sentencing-related claims.
BACKGROUND

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Because this order deals almost exclusively with Apelt’s sentencing claims, a full

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explanation of his crimes and trial is unnecessary. In brief, Apelt, his brother Rudi,

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Rudi’s wife, and Apelt’s some-time girlfriend Anke Dorn, traveled from their native

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Germany to America in August 1988. In California and then in Arizona the brothers and

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Dorn embarked on a series of “cons” involving the brothers trying to entice women into

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romantic relationships by holding themselves out as successful businessmen.

The

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brothers hoped to obtain money from these relationships. On October 6, 1988, Apelt met

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Cindy Monkman. A relationship developed and, on October 28, 1988, Cindy and Apelt

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were married in Las Vegas.

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Immediately after the marriage Apelt insisted the couple take out life insurance on

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Cindy. The couple had difficulty obtaining the size of policy Apelt wanted and so it was

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not until December 22, 1988, that a large policy for Cindy was approved. The very next

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day, Apelt, Rudi, and Dorn agreed to kill Cindy. That evening, Apelt drove Cindy to a

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remote location where he met Rudi who had traveled there in a separate car with Dorn.

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Dorn stayed in the car while Apelt and Rudi murdered Cindy. After the murder Apelt,

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Rudi, and Dorn went out to dinner.

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Cindy’s body was found on the afternoon of December 24. She had been stabbed

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once in the lower chest and four times in the back. Her throat had been slashed so deeply

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that her head was nearly severed from her body. There were numerous bruises on her

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face and body.

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Almost immediately the police suspected Apelt and Rudi were involved. The
police questioned the brothers but they denied any involvement.

When the police

questioned Dorn, however, she confessed. Both Apelt and Rudi were arrested and tried

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separately.

Dorn was granted immunity and testified at both trials.

Apelt was

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represented at trial by attorney Michael Villareal.

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conspiracy to commit first-degree murder and first-degree murder. The judge then set the

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A jury found Apelt guilty of

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matter for sentencing.1

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On June 8, 1990, in anticipation of the hearing regarding aggravation and

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mitigation, Villareal filed a motion to authorize extraordinary expenses “to travel to

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Germany in order to locate and contact witnesses regarding Michael Apelt’s past life in

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order to establish mitigating factors.” (ROA 298.) Villareal also filed a motion seeking

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an interpreter to assist him in Germany (ROA 297) and a 60-day continuance of the

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aggravation/mitigation hearing based on the need to conduct additional investigation.

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(ROA 296; RT 6/11/90 at 3–6.) In support of these requests, Villareal argued he needed

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to “locate and contact witnesses regarding [Apelt’s] past life in order to establish

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mitigating factors. This work must be undertaken in Germany as [Apelt] was born and

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raised there and his contacts in the United States are minimal.” (ROA 296.)

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At a hearing on June 11, 1990, Villareal explained to the court that, at some point

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during the prosecution, his co-counsel had gone to Germany at her own expense as part

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of a family vacation. As described by Villareal, that trip was an attempt to “build[] up a

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character defense.” While there, co-counsel had looked into Apelt being in “some type of

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psychological institution early in his life.”

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Co-counsel had not uncovered any

information that Villareal used at trial but Villareal argued it was now “important and

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necessary . . . that [he] travel . . . to Germany to locate and contact witnesses there.”
Villareal explained he planned to “explore” the “issue of that psychological

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Rudi was also convicted of first degree murder and conspiracy to commit first
degree murder. Rudi was sentenced to death for the murder conviction. State v. (Rudi)
Apelt, 176 Ariz. 369, 371, 861 P.2d 654, 656 (1993). In 2009, however, a state court
found Rudi intellectually disabled and vacated his death sentence. (Doc. 285, Ex. 27.)
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hospitalization.” In addition, Villareal needed to “check into” “other matters that came to

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light in [Apelt’s] past regarding a difficult child birth, things of [that] sort.” (RT 6/11/90

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at 7–8.) Villareal stressed that he had “leads” in Germany and was not “going over there

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on a fishing expedition.” (Id.) Finally, Villareal explained he had sought assistance from

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the German consulate but had learned the German government would not become

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involved in the case unless Apelt had been sentenced to death. (Id. at 9–10.)

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The court granted the request for additional time but denied Villareal’s request for

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travel funds. In doing so, the court noted the case had already been “very expensive” and

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it ordered Villareal to submit a “verification as to those items that you feel that your trip

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to Germany is a necessity for.” (Id. at 10.) Villareal never submitted the “verification”

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the court requested and the court later formally denied the motion. The order denying the

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motion explained the “extra expense of funds has not been demonstrated as a necessitity

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[sic] for the defense of the defendant.” (ROA 302.)

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On July 31, 1990, a week before Apelt’s rescheduled aggravation/mitigation

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hearing, Villareal again moved for a continuance and renewed his request for funds to

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travel to Germany. (ROA 307; see RT 8/7/90 at 4.) Villareal stated he had “not been

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able to investigate [Apelt’s] background in order to ascertain what mitigating evidence

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exists.” (ROA 307.) He explained it was “obvious that any mitigating evidence [would]

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only be found in Germany” and that it was “impossible” for him “to know with any

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reasonable certainty what [would] be uncovered when a thorough background check . . .

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is undertaken.” (Id.) The court did not rule on the motion prior to the hearing.
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At the aggravation/mitigation hearing, Villareal argued in support of his motion by

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informing the court he had been unable “to prepare a proper mitigation” case because the

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court had denied his funding request. (RT 8/7/90 at 5.) Villareal, apparently reading

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from a booklet authored by a defense organization, outlined “the types of things that are

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obvious in a mitigation hearing” and that he would investigate if he traveled to Germany.

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Those things included “documentary evidence, . . . birth records, school records, mental

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health records, hospital records, institutional records, juvenile prisons, jails, mental

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hospitals, military records, court records, any prior pre-sentence report, prior mental

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health evaluations, probation records, [and] parole records.” Villareal also stated he

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wished to interview witnesses in an “exhaustive search to find evidence in mitigation that

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. . . the defendant himself may not know would be relevant to present to a court in a pre-

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sentence hearing of this nature.” For example, Villareal wished to talk to “parents,

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siblings, all other relatives, teachers, . . . employers, co-workers, . . . mental health

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professionals, . . . [and] any persons that other people may notify me of who could be

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helpful in the investigation for mitigating evidence.” (Id.) Despite this lengthy list of

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evidence and witnesses, Villareal did not provide specifics regarding Apelt’s life and

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situation or the witnesses he wished to interview.

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The state did not take a position on the funding issue but opposed delaying the

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aggravation/mitigation hearing any further. The state pointed out that Villareal had failed

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to make the showing of necessity required by the court’s prior order. (Id. at 7–8.) The

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court then denied the motion, finding Villareal had not offered a “valid reason” to travel
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to Germany or to further continue the hearing. (Id. at 9.) The aggravation/mitigation
hearing proceeded.

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The hearing began with the state presenting its aggravation case. During its
presentation, the prosecutor called a police officer to testify. According to that officer, he

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and the prosecutor had traveled to Germany in search of aggravating evidence. The

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officer explained that during the trip to Germany, he had uncovered evidence of Apelt’s

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criminal record, including a felony burglary conviction. (RT 8/7/90 at 16–22, 26.) The

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officer further explained he had spoken with Apelt’s ex-wife and she had stated Apelt

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“would go over dead bodies to obtain money.” The ex-wife also claimed Apelt had asked

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her to donate a kidney for money. (Doc. 326-2 at 24.) Finally, the officer explained that

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he had spoken with Dorn’s parents who had informed him that they considered Apelt so

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dishonest that they once threatened to shoot Apelt if he visited their home. (Id. at 23–25,

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27.)

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After the officer’s testimony, the state presented its argument. The prosecutor

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claimed there were “no mitigating factors” and the case did not involve any “of the

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factors that are so frequently offered to avoid the death penalty, such as poor childhood.”

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To stress this point, the prosecutor pointed out that Apelt “himself told the probation
officer that he had a normal childhood.”2 (Doc. 326-2 at 34.) The prosecutor further

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This reference regarding the probation officer was based on a pre-sentencing
report prepared after the probation officer interviewed Apelt. During the interview Apelt
had refused to discuss the crime but he had discussed his family history. Apelt had told
the probation officer “there was no trouble in [his parents’] marital relationship” and he
did not mention any “problems that occurred during his childhood years.”
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stated “there is no evidence of any mental disease or defect such that might mitigate his

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crime and call for leniency.” (Doc. 326-2 at 34.) The prosecutor ended her argument by

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claiming Apelt was a “psychopath or a sociopath” and by reiterating “there are no

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mitigating factors.”

(Doc. 326-2 at 35.)

It was then Villareal’s turn to present a

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mitigation case.
Villareal’s argument and presentation of evidence in mitigation was very weak.
One of Villareal’s first claims was a strange argument that the state had not established

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Apelt’s crime was especially cruel. According to Villareal, the “many stab wounds”

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were due to Cindy’s “strong struggle to survive,” and that struggle “made the crime not

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cruel, not heinous, not depraved, but made it difficult.” (Doc. 326-2 at 40). Villarreal

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then asked the court to find as mitigating circumstances Apelt’s age, remorse, new-found

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Christian faith, lack of a serious criminal record, military service, good behavior at trial,

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and the immunity agreement granted to Dorn. (Id. at 41–52.) He also asked the court

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consider the wishes of Cindy’s sister and friend that Apelt not receive the death penalty,

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the fact that Germany had abolished the death penalty, and the alleged disproportionality

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of the death penalty in this case as compared to other murder cases. (Id.) Finally,

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Villareal argued generally that there were mitigating factors relating to Apelt’s

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background—including mental-health issues, a difficult childhood, low intelligence, and

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lack of education—that he could not present because the court had denied his motion for

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funds to travel to Germany. (Id. at 47-48.)

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Villareal introduced eight exhibits he was somehow able to obtain from Germany.
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The eight exhibits were:
1. A letter from Apelt’s brother disputing that Apelt could have been
involved in the murder;

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2. A letter from one of Apelt’s friends stating Apelt had been a “good and
honest friend”;

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3. A letter from Apelt’s uncle stating he had known Apelt since childhood
and Apelt had been raised to “become [a] good human being[]”;

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4. A letter from Apelt’s mother stating, in part, “Even though my sons had
contact with the law, they were never capable of such violence. I can just
say as their mother, that they grew up normally.”;

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5. A letter from Apelt’s sister stating “my brothers are and were no angels but
it takes a lot to commit such a brutal crime” and “I do not believe that my
brothers are able to commit such a mine [sic] and brutal crime.”;

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6. A letter from a doctor stating Apelt “was treated for various illnesses”

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between August 1984 and July 1988;

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7. A letter from a past employer stating Apelt’s behavior from September

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1984 to February 1987 was “unobjectionable”; and

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8. A certificate from the German military stating Apelt had served from 1982

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to 1983.

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After hearing all of the evidence, the court set the formal sentencing for the following
week.
At the sentencing, the trial court found three aggravating factors had been proven:
Apelt procured Cindy’s murder with the promise of pecuniary gain, see A.R.S. § 13-

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703(F)(4); murdered Cindy with the expectation of pecuniary gain, see A.R.S. § 13-

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703(F)(5); and murdered Cindy in an especially cruel, heinous or depraved manner, see

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A.R.S. § 13-703(F)(6).3 (RT 8/13/90 at 7.) The court found no mitigation sufficiently

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substantial to warrant leniency and sentenced Apelt to death. (Id. at 8–9, 12–13.) Apelt

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appealed.

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Villareal handled Apelt’s direct appeal. While that appeal was pending, Villareal

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filed a petition for post-conviction relief (“PCR”). That petition was based on newly-

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discovered evidence that allegedly exonerated Apelt.4 The trial court eventually denied

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the PCR petition and Apelt petitioned the Arizona Supreme Court for review. See State

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v. Apelt, 861 P.2d 634, 638 (Ariz. 1993). The Arizona Supreme Court consolidated the

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petition for review with Apelt’s still-pending direct appeal. Id. On November 9, 1993,

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the Arizona Supreme Court rejected all of the claims in the petition and appeal and

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affirmed Apelt’s death sentence.

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The Arizona Supreme Court filed a petition for post-conviction relief on Apelt’s

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behalf and Apelt received new counsel for that petition. Because Villareal had already

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In 2008, the Arizona Legislature reorganized and renumbered Arizona’s
sentencing statutes. State v. Chappell, 225 Ariz. 229, 234, n.3, 236 P.3d 1176, 1181
(2010). The Court cites the version in use at the time of Apelt’s trial.
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It is worth pointing out that there was no understandable reason for Villareal to
file, immediately after trial, a very limited PCR. At that time, Arizona courts allowed for
PCR petitions to be filed while a direct appeal was pending. See State v. Valdez, 770
P.2d 313, 319 (Ariz. 1989). Those PCR petitions could include allegations of ineffective
assistance of counsel. Id. However, counsel had to be careful when filing a PCR petition
because the failure to assert claims in a prisoner’s first PCR petition could result in that
claim being precluded later. State v. Gaffney, 589 P.2d 914, 915 (Ariz. Ct. App. 1979)
(discussing preclusion of matters not raised in first PCR). Moreover, it was wellestablished as of 1990 that counsel should not present claims asserting his own
ineffectiveness. State v. Suarez, 670 P.2d 1192, 1204 (Ariz. Ct. App. 1983) (noting “it is
improper for appellate counsel to argue his own ineffectiveness at trial”). Based on this,
Villareal’s decision to file a PCR petition immediately after trial, limited to an
evidentiary matter, was rather unusual. The record contains no explanation for this
decision.
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filed one such petition while the direct appeal was pending, this was Apelt’s second PCR.

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Apelt’s new counsel (“PCR counsel”) argued Villareal’s performance had been both

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deficient and prejudicial under Strickland v. Washington, 466 U.S. 668 (1984). (ROA

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PCR 2, Item 19.)

As relevant here, PCR counsel contended Villareal performed

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deficiently by failing to support his request for funds to travel to Germany with a more

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specific factual and legal showing of why the trip was reasonably necessary to Apelt’s

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defense. (Id. at 4). PCR counsel also claimed Villareal performed deficiently by failing

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“to investigate the mitigation through less expensive and more practical means, such as
hiring a German investigator in Germany.” (Id. at 7).
In support of these claims regarding Villareal’s performance, PCR counsel pointed

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out Villareal had been aware Apelt had been hospitalized in Germany but Villareal

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“failed to gather the records and background information necessary for a thorough and

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complete mental health evaluation.” Villareal had also “failed to investigate, develop,

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and present substantial mental health evidence”; failed “to identify, locate and investigate

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potential mitigation witnesses”; and “failed to properly develop or present adequately

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expert testimony.” (Id. at 4–5.) PCR counsel further claimed Villareal had failed to

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present evidence that Apelt “came from a family background of gross poverty,

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alcoholism and violence which included emotional, physical and sexual abuse”; that

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Apelt “has a history of mental illness and has received psychiatric/psychotherapeutic

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treatment in Germany”; that Apelt “was in special education as a child,” “suffered from a

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nervous disorder,” and had attempted suicide; and that Apelt was “mentally, physically,
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and sexually abused by older men throughout his childhood and mentally disturbed while
in school.” (Id. at 10-11.)
These claims by PCR counsel were supported by “a plethora of documents from
Germany obtained by . . . counsel thorough correspondence.” (Id. at 10.) The documents

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submitted by PCR counsel included a “report on the situation of the Apelt family,”

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prepared by the Dusseldorf Industrial Welfare Organization. The report was based on

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information provided by Apelt’s mother and the social worker who had worked with the

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family when Apelt was a child. (Id., Ex. 2(a).) The documents also included an affidavit
from Apelt’s mother. (Id., Ex. 2(d).) The report and affidavit recounted what follows.
Apelt’s father was an abusive alcoholic who beat his wife and children, including

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Apelt, with an iron rod. (Id., Ex. 2(a) at 4.) Apelt’s father sexually abused his wife and

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attempted to engage in sexual misconduct against his daughters. (Id.) As a child, Apelt

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was sexually molested by older men on two occasions. (Id., Ex. 2(d).) The first time was

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when Apelt was seven. He was taken from his yard and driven to a house where he was

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forced to have intercourse. (Id.) The second time was when Apelt was thirteen. Apelt

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had been walking home from school when he and a friend were tricked into going into a

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cellar where a man holding a knife forced Apelt to have intercourse. (Id.) The incidents

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left Apelt “mentally disturbed.” (Id.)

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Apelt’s family was very poor while he was growing up. The family of nine lived

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in a five-bedroom apartment and his father did not work on a regular basis. The family

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survived on government support and his mother’s earnings as a cleaning lady. (Id.) The
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children were forced to go to work at age fourteen. (Id.) All of the Apelt children

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“immediately after reaching emancipation, left home in order to escape the abusive,

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sexually abusive and violent situations.” (Id.)

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Beyond the report from the governmental agency and affidavit from Apelt’s

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mother, PCR counsel also submitted a medical report from the Psychosomatic Clinic in

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Dusseldorf where Apelt had received in-patient treatment. (Id., Ex. 2(b).) That medical

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report was from 1986 and it described Apelt as suffering from “shortness of breath,

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vertigo, and pain in the left arm.” (Id. at 1.) The report indicated Apelt may have

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suffered medical complications during his birth. (Id. at 2.) The report recounted that

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Apelt had attended special education because he spoke with a lisp. (Id. at 2.)

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Finally, PCR counsel included an affidavit from Villareal in which he attested that

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“[a]ny lack of investigation during the penalty phase . . . was not a tactical or strategic

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decision.” (Doc. 326, Ex. 34.) Without any elaboration, Villareal averred Apelt “did not

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take an active role in the development of mitigation.” (Id.)

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Based on this new evidence, PCR counsel moved for an evidentiary hearing on

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Apelt’s ineffective assistance claims. (Id. at 9.) The PCR court denied the request for a

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hearing and rejected all of the claims in the petition. On the ineffective assistance of

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counsel claims, the court held the claims were procedurally improper because they had

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not been presented in the first PCR. Alternatively, the court held Apelt’s claims of

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ineffective assistance of counsel at sentencing were not

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colorable . . . because Apelt fails to make a sufficient preliminary showing
that counsel’s performance fell below objective standards of
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reasonableness, and fails to make a preliminary showing that, in light of the
allegations, there exists a reasonable probability that the result of the trial or
sentencing hearing would have been different.

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(ROA PCR 2, Item 42 at 2.)

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Following denial of a motion for rehearing, the PCR court permitted PCR counsel

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to withdraw but denied Apelt’s request to reopen the PCR proceeding. (ROA PCR 2, at

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Items 62, 63.) After obtaining new counsel, Apelt filed a petition for review with the

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Arizona Supreme Court. In support of that petition, Apelt’s new counsel submitted a

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psychiatric report prepared by Dr. Herschel Rosenzweig. (Id. at Ex. E.) Dr. Rosenzweig

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did not arrive at clear diagnoses but suggested the following possible diagnoses:

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attention-deficit disorder; post-traumatic-stress disorder; personality change due to

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organic brain damage; learning disorder not otherwise specified; borderline intellectual

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functioning; and personality disorder not otherwise specified. (Id. at 9.) The Arizona

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Supreme Court summarily denied review.

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Apelt filed his federal petition for writ of habeas corpus on May 14, 1998. (Docs.

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1, 46, 63.) Before this Court could resolve the petition, the United States Supreme Court

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decided Atkins v. Virginia, 536 U.S. 304, 321 (2002). In Atkins, the Supreme Court held

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the Eighth Amendment prohibits states from executing intellectually disabled persons.

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Based on the possibility that Atkins applied to Apelt, this Court stayed Apelt’s

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sentencing-related claims to permit him to return to state court and exhaust an Atkins

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claim.

(Doc. 117.)

In the meantime, this Court considered and denied Apelt’s

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conviction-related claims. (Docs. 132, 180, 210.)
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Following an evidentiary hearing, the state court rejected Apelt’s Atkins claim.

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(See Doc. 285, Ex. 27.) Apelt was then permitted to amend his federal habeas petition to

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raise an Atkins claim. (Doc. 275.) This Court also dismissed, in whole or in part, six of

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Apelt’s sentencing-related claims on procedural grounds, six as plainly meritless, and one

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as not cognizable on habeas review. (Id.) The Court ordered merits briefing on the

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remaining claims: Claims 11, 14, 15, 17, 26, and 27. (Id.) Subsequently, the Court

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granted Apelt’s motion for supplemental briefing and ordered the parties to address, in

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light of another United States Supreme Court decision, the procedural default and merits

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of Claims 1-B, 1-D, and 12. (Doc. 315.) The parties submitted the supplemental briefing

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and all of Apelt’s remaining claims are now ripe for resolution.

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DISCUSSION

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Deciding Apelt’s claims requires resolution of two preliminary issues. First, the

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Court must determine the procedural status of the claims. That is, the Court must decide

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which specific claims Apelt raised in state court and how they were resolved on their

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merits. Second, the Court must determine the standard that applies to the claims raised

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and resolved in state court. Only after deciding these preliminary issues can the Court

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examine the merits of Apelt’s claims.

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I. Procedural Status of Claims

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“State prisoners seeking a writ of habeas corpus from a federal court must first

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exhaust their remedies in state court.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir.

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2014). To exhaust claims, a petitioner must “present his claims to the highest court of the

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state.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (quotation omitted). And if

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“a petitioner tries to present a claim to the state court but is prevented from doing so by

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his failure to comply with a state procedural rule, the claim is ‘technically exhausted’ but

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procedurally defaulted.” Nguyen v. Curry, 736 F.3d 1287, 1292 (9th Cir. 2013). When a

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claim is procedurally defaulted, a federal court usually cannot reach the merits of that

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claim. Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007).

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Before 2012, the procedural default of a particular claim would be excused “only

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if a habeas petitioner [could] demonstrate both ‘cause’ for the default and resulting

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‘prejudice.’” Nguyen, 736 F.3d at 1292. But in 2012, the Supreme Court altered the

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landscape for some claims regarding ineffective assistance of counsel. In Martinez v.

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Ryan, 132 S. Ct. 1309 (2012), the Court explained:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Id. at 1320. The Ninth Circuit reformulated this language in Cook v. Ryan, 688 F.3d 598,

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607 (9th Cir. 2012). According to Cook, a petitioner may establish cause for a procedural

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default “by demonstrating two things: (1) ‘counsel in the initial-review collateral

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proceeding, where the claim should have been raised, was ineffective under the standards

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of Strickland . . .’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a

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substantial one, which is to say that the prisoner must demonstrate that the claim has

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some merit.’” Id.
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The Court previously addressed the procedural status of Claims 11, 14, 15, 17, 26,

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and 27 and concluded those claims should proceed to a merits decision. (Doc. 275). But

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during early briefing on the procedural status of Claims 1-B, 1-D, and 12, Respondents

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argued those claims were “procedurally barred from federal review.” (Doc. 48 at 47, 52.)

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The Court agreed and found Claims 1-B, 1-D, and 12 procedurally defaulted. But that

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decision was before Martinez, meaning the Court must now reevaluate the status of those

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claims.

10
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According to Apelt, the default of Claims 1-B, 1-D, and 12 is excused under

12

Martinez by Villareal’s ineffective performance as PCR counsel.

13

Respondents’ contrary position is slightly confusing.

(Doc. 326.)

It is undisputed Respondents

14
15

previously argued these claims were procedurally defaulted. But Respondents now point

16

out the state court made an alternative merits ruling on claims 1-B and 12.5 (Doc. 335 at

17

8.) Based on that alternative merits ruling, Respondents argue Claims 1-B and 12 “fall

18

outside Martinez’s limited reach.” (Doc. 335 at 8.) As best as can be determined,

19
20

Respondents’ position is as follows. Claims 1-B and 12 were procedurally defaulted and

21

should be barred from federal review. But if this Court were to find Martinez applicable

22

such that the procedural default might be excused, the Court would have to consider the

23
24

state court’s alternative merits ruling. This issue matters because the standard of review

25
26
27
28

5

Respondents argue “Claim 1-D was never presented in state court.” (Doc. 335 at
16 n.6). Thus, the state court’s alternative merits ruling could not have resolved the
claim.
- 16 -

1
2
3
4
5

differs when evaluating a state court ruling on the merits versus a claim never addressed
by a state court.
Normally, procedural default occurs when a claim is not raised in state court.
Thus, a federal court using Martinez to excuse a procedural default usually results in the

6
7

court examining the claim de novo. But in this case, the state court found Claims 1-B and

8

12 procedurally defaulted and rejected them on their merits. In these circumstances,

9

Respondents are correct that excusing the procedural default simply means the Court

10
11

must consider the merits ruling.

12

The Ninth Circuit recently addressed a situation very similar to that presented

13

here. In Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014), a state petition for post-

14
15

conviction relief included a claim for ineffective assistance of counsel based on counsel’s

16

conduct at sentencing. The state court rejected that claim. In doing so, the state court

17

held the claims procedurally improper and without merit. Id. at 383. The Ninth Circuit

18

held that even assuming Martinez could excuse the procedural issue, the alternative

19
20

merits ruling must still receive the normal deference applicable to state court rulings. Id.

21

(“AEDPA deference applies to this alternative holding on the merits.”).

22

Given the holding in Clabourne, the fact that the state court found Claims 1-B and

23
24

12 procedurally improper does not mean the Court can ignore the alternative merits

25

ruling. Instead, the Court must accept that the two claims were resolved by the state

26

court on their merits and review their rejection under the deferential standard applicable

27
28

to Apelt’s other claims.
- 17 -

1
2

II. General Standard for Obtaining Relief

3

Almost all of Apelt’s claims are governed by the Antiterrorism and Effective

4

Death Penalty Act (“AEDPA”). Pursuant to 28 U.S.C. § 2254(d), a petitioner is not

5

entitled to habeas relief on any claim unless the state court’s adjudication of the claim:

6
7
8
9
10

(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.
The Supreme Court has emphasized that “an unreasonable application of federal

11
12

law is different from an incorrect application of federal law.” Williams v. Taylor, 529

13

U.S. 362, 410 (2000). Thus, “a federal habeas court may not issue the writ simply

14

because that court concludes in its independent judgment that the relevant state-court

15
16

decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

17

Rather, the application must be “objectively unreasonable.” Id. at 409. This distinction

18

creates “a substantially higher threshold” for obtaining relief than de novo review.

19

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Thus, AEDPA imposes a “highly

20
21

deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320,

22

333, n.7 (1997), and “demands that state-court decisions be given the benefit of the

23

doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). “A state court’s

24
25

determination that a claim lacks merit precludes federal habeas relief so long as

26

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

27

Harrington v. Richter, 562 U.S. 86, 101 (2011). And even “[w]here a state court's

28
- 18 -

1
2

decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be

3

met by showing there was no reasonable basis for the state court to deny relief.” Id. at

4

784.

5

“[R]eview under § 2254(d)(1) is limited to the record that was before the state

6
7

court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,

8

1398 (2011) (holding that “the record under review is limited to the record in existence at

9

that same time, i.e., the record before the state court.”); see Murray v. Schriro, 745 F.3d

10
11

984, 998 (9th Cir. 2014) (“Along with the significant deference AEDPA requires us to

12

afford state courts’ decisions, AEDPA also restricts the scope of the evidence that we can

13

rely on in the normal course of discharging our responsibilities under § 2254(d)(1).”).

14
15

Evidentiary development becomes available only if § 2254(d)(1) is satisfied.

See

16

Pinholster, 131 S. Ct. at 1411; Sully v. Ayers, 725 F.3d 1057, 1075–76 (9th Cir. 2013);

17

Henry v. Ryan, 720 F.3d 1073, 1093 n.15 (9th Cir. 2013). That is, the record can be

18

expanded only once a petitioner shows there was no reasonable basis for the state court to

19
20

have denied relief.

21

III. Claim 12

22

In Claim 12, Apelt alleges Villareal performed ineffectively at sentencing by

23
24

failing to investigate and present mitigating evidence. Apelt

asserts

Villareal

was

25

obligated to conduct a “thorough, multi-generational social history.” (Doc. 326 at 43.)

26

According to Apelt, Villareal’s failure or inability to do so led to the omission of “classic

27
28

mitigating evidence” about Apelt’s background and mental health. (Id.) As described
- 19 -

1
2

above, the second PCR court’s alternative ruling denying Claim 12 was a decision on the

3

merits.

4

argument that Villareal’s performance at sentencing met the well-established

5

Accordingly, this Court must determine whether there is any reasonable

constitutional minimum for effective assistance of counsel. In short, there is no such

6
7
8
9

reasonable argument.
A. Standard for Claim of Ineffective Assistance of Counsel
As a claim of ineffective assistance of counsel, Claim 12 is governed by the

10
11

principles set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under

12

Strickland, Apelt must show Villareal “provided deficient assistance and that there was

13

prejudice as a result.” Richter, 562 U.S. at 104. “Deficient assistance” requires a

14
15

showing that Villareal’s “representation fell below an objective standard of

16

reasonableness.” Strickland, 466 U.S. at 688. And “prejudice” requires establishing “a

17

reasonable probability that, but for [Villareal’s] unprofessional errors, the result of the

18

proceeding would have been different.” Id. at 694.

19
20

The inquiry under Strickland is meant to be highly deferential and “every effort

21

[must] be made to eliminate the distorting effects of hindsight.” Id. at 689. Under

22

AEDPA, Strickland must be applied in a “doubly deferential” way.

Knowles v.

23
24

Mirzayance, 556 U.S. 111, 123 (2009). That is, “the question is not whether [Villareal’s]

25

actions were reasonable. The question is whether there is any reasonable argument that

26

[Villareal] satisfied Strickland’s deferential standard.” Richter, 562 U.S. 86 at 105. As

27
28

explained above, the Court must answer this question using only the evidence presented
- 20 -

1
2
3
4
5

to the state court.6 Therefore, the evidence generated during these federal proceedings
will not be considered.7
B. Villareal’s Performance was Deficient
In general, counsel in a capital case has an “obligation to conduct a thorough

6
7

investigation of the defendant’s background.”8 Williams, 529 U.S. at 396. While the

8

exact contours of that obligation may vary, “[c]ertain forms of investigation are

9

fundamental to preparing for virtually every capital sentencing proceeding. At the very

10
11
12

least, counsel should obtain readily available documentary evidence such as school,
employment, and medical records, and obtain information about the defendant’s character

13
6

14
15
16
17
18
19
20
21
22

The exact evidence the Court may consider is complicated in one respect. When
conducting its analysis, this Court must review the “last reasoned state court opinion.”
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). And when the state’s highest court denies
the claim summarily, the federal court looks through to the last reasoned decision. See
Johnson v. Williams, 133 S. Ct. 1088, 1094 n.1 (2013). The last reasoned decision here is
that of the second PCR court, meaning one would expect the record to be limited to that
available to the second PCR court. The Ninth Circuit recently suggested, however, that
when looking through to the last reasoned state court decision, a court may review
evidence not presented to the court that made that decision. Cannedy v. Adams, 706 F.3d
1148, 1159 & n.5 (9th Cir. 2013). In Cannedy, the “last reasoned state court opinion”
was from the California Court of Appeals but the petitioner had submitted new evidence
when seeking review by the California Supreme Court. The Ninth Circuit held it was
proper to examine the evidence submitted to the California Supreme Court. Id. The
Court will do the same here and consider the evidence presented to the trial court as well
as the Arizona Supreme Court. But the evidence presented only to the Arizona Supreme
Court is of little weight. Therefore, the result would be the same even if the Court were
to ignore that evidence.
7

23
24
25

The evidence offered by habeas counsel presents a substantially more detailed
account of the alleged physical and sexual abuse Apelt and his family suffered at the
hands of his father; evidence that Apelt suffered from developmental delays, intellectual
deficits, and mental health problems; and records showing he was discharged from the
army for “mental inadequacy.” (See Doc. 326, Ex’s 1, 4, 9, 11, 17, 26.)
8

26
27
28

The Court is aware that determining whether the state court reasonably applied
federal law requires examination of the law at the time the state court made its decision.
Greene v. Fisher, 132 S. Ct. 38, 44 (2011). But as recently recognized by the Ninth
Circuit, later developments in the law can “provide[] direction for determining . . . what
constitutes an unreasonable application of Strickland.” Andrews v. Davis, No. 09-99012,
2015 WL 4636957, at *16 (9th Cir. Aug. 5, 2015).
- 21 -

1
2

and background.” Robinson v. Schriro, 595 F.3d 1086, 1108-09 (9th Cir. 2010) (citations

3

omitted).

4

background and evidence of family abuse,” Summerlin v. Schriro, 427 F.3d 623, 630 (9th

5

A mitigation investigation should also “include inquiries into social

Cir. 2005), as well as “evidence of mental impairment” such as that found in “mental

6
7

health records.” Lambright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007) (quotations

8

omitted). “Although counsel will typically begin the investigation by interviewing the

9

defendant, the investigation cannot end there unless the ‘defendant has given counsel

10
11
12
13

reason to believe that pursuing certain investigations would be fruitless or even
harmful.’” Robinson, 595 F.3d at 1109 (quoting Strickland, 466 U.S. at 691).
Villareal clearly did not meet these responsibilities. Based on the state court

14
15

record, Villareal did not collect records from social service agencies, welfare agencies,

16

doctors, hospitals, or employers.9

17

witnesses, including Apelt’s family members, or consult with any mental health experts.

18

Villareal did not interview potential mitigation

Villareal did not obtain Apelt’s readily-available mental health records from the Pinal

19
20

County jail which described Apelt receiving various medications as well as Apelt’s

21

placement on suicide watch. And Villareal did not present a single witness at the

22

sentencing hearing. This was deficient performance.10

23
24
9

25
26
27

Villareal did supply the trial court with one letter from a doctor and one letter
from an employer. Those documents, however, had very minimal value. The letter from
the doctor stated only that Apelt had been treated for unnamed illnesses. The letter from
the employer indicated Apelt was an “unobjectionable” employee. It is unclear why
these documents were submitted.
10

28

Courts have consistently found deficient performance in cases where defense
counsel failed to obtain records, interview witnesses, or otherwise perform an adequate
- 22 -

1
2

In reaching the conclusion that Villareal’s performance was deficient, the Court

3

has taken into account Villareal’s statement that Apelt did not actively participate in the

4

sentencing phase of trial. It is clear, however, that when certain avenues of investigation

5

are foreclosed, counsel must seek “alternative sources of information and evidence.”

6
7

Hamilton v. Ayers, 583 F.3d 1100, 1118 (9th Cir. 2009) (quoting Silva v. Woodford, 279

8

F.3d 825, 847 (9th Cir. 2002)).

9

Assuming Villareal attempted but failed to obtain

mitigating information from Apelt, Apelt’s “lack of cooperation [did] not eliminate

10
11

[Villareal’s] duty to investigate.”

Id.

That is, Villareal could not “rely solely on

12

information provided by [Apelt] and his family in determining the extent of a proper

13

mitigation investigation.”

Black v. Bell, 664 F.3d 81, 104 (6th Cir. 2011) (citing

14
15
16

Rompilla v. Beard, 545 U.S. 374, 388–89 (2005)). Rather, any noncooperation by Apelt
simply meant Villareal still had a duty to conduct an independent investigation.11

17
18
19
20
21
22
23
24
25
26
27
28

investigation at sentencing. See, e.g., Porter v. McCollum, 558 U.S. 30, 39-40 (finding
deficient performance where counsel “had only one short meeting with [the defendant]
regarding the penalty phase” and “did not . . . interview any members of [the defendant’s]
family” or obtain school records); Summerlin, 427 F.3d at 631 (finding deficient
performance where counsel “conducted no investigation of [the defendant’s] family and
social history” and “did not speak with [the defendant’s] family or friends”); Robinson,
595 F.3d at 1109-10 (finding deficient performance where counsel “conducted no
investigation of Robinson’s family history; he did not speak with any member of
Robinson’s family; he did not request school, medical, or employment records; and he
did not request a mental health evaluation”); Hamilton, 583 F.3d at 1115 (“Counsel acted
deficiently in failing to pursue . . . classic mitigating evidence.”); Lambright, 490 F.3d at
1121 (finding that counsel’s “limited, cursory, and incomplete presentation of mitigating
evidence . . . falls far below that which any reasonably competent attorney would provide
in a capital case”); Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998) (finding
deficient performance where counsel “engaged in virtually no investigation and presented
very little argument at the sentencing phase of the trial”).
11

The present case can be compared to another capital trial that occurred around
the same time as Apelt’s trial. The other case also involved a seemingly non-cooperative
defendant and an alleged failure to investigate and present mitigating evidence.
Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006), rev’d 550 U.S. 465 (2007). In that
case, counsel’s investigation included obtaining “several medical documents indicating
- 23 -

1
2

No doubt conducting an adequate mitigation investigation was hampered by

3

Villareal’s need to obtain funding to travel to Germany. But Villareal’s performance

4

nevertheless was legally deficient. Villareal failed to provide additional information to

5

the trial court, as invited by the court, which perhaps would have persuaded the court to

6
7

authorize funding for travel to Germany. There is nothing in the record explaining why

8

Villareal decided not to press the court with the details supporting an investigation in

9

Germany.

It is telling that PCR counsel obtained voluminous material regarding

10
11
12
13

mitigation without traveling to Germany.

Again, the record does not explain why

Villareal was unable to obtain the same information with or without a trip to Germany.12
Respondents disagree and argue Villareal’s conduct might be explained as a

14
15

strategic decision to focus on good character evidence rather than evidence of Apelt’s

16

mental illness. (Doc. 335 at 41.) This argument ignores that Villareal intended to seek

17

information about Apelt’s mental health, including his hospitalization in Germany. (RT

18
19
20
21
22
23
24
25
26
27
28

[the defendant had] a long history of substance abuse.” Id. at 643. Counsel also arranged
for a psychological examination of the defendant and spoke with two of the defendant’s
family members. The Ninth Circuit described that investigation as “rather asthenic” that
“might well” be “prejudicially asthenic” in some circumstances. Landrigan v. Stewart,
272 F.3d 1221, 1227 (9th Cir. 2001). But relief in that case was denied because the
defendant stated, on the record, that he did not wish to present mitigating evidence. The
“rather asthenic” investigation conducted in that case is more than what was performed in
this case and there is no indication Apelt instructed Villareal not to present mitigating
evidence.
12

Under the Ethical Rules governing Arizona attorneys at the time, Villareal had
an ethical obligation to either provide competent representation or move to withdraw.
State Bar of Arizona Ethics Opinion 86-04 (stating ER 1.16 required attorney to
“withdraw from the representation of a client if . . . the representation [would] result in
violation of the Rules of Professional Conduct” and providing “competent
representation” was required by ER 1.1). If the court’s refusal to provide adequate
funding rendered Villareal unable to provide competent representation, Villareal had an
ethical obligation to seek to withdraw. This presupposes that Villareal would have
pursued with the court all persuasive means of obtaining funding.
- 24 -

1
2

6/11/90 at 8; RT 8/7/90 at 5.) Thus, Apelt’s mental health was not an issue Villareal

3

strategically neglected. Rather, he knew it was material evidence and, inexplicably,

4

failed to pursue it. See Wiggins, 539 U.S. at 527 (finding deficient performance where

5

“known evidence would lead a reasonable attorney to investigate further”).

6
7

Respondents’ argument also ignores that Villareal failed to present evidence of

8

Apelt’s childhood poverty and abuse—humanizing information that would have been

9

within the parameters of good character evidence. Moreover, Villareal himself admitted

10
11
12
13

there was no strategic basis for his failure to investigate or present more relevant
mitigating evidence.
In sum, Villareal “did not perform any real investigation into mitigating

14
15

circumstances, and gave no tactical reasons for his failure to do so.” Robinson, 595 F.3d

16

at 1109 (quotation omitted). The deficits of the mitigation investigation were neither

17

strategic nor tactical and Villareal did not seek alternative means of investigation when

18

the court denied his requests for funds to travel to Germany. No fairminded jurist could

19
20
21
22

conclude Villareal’s performance was sufficient.
C. Apelt was Prejudiced by Villareal’s Deficient Performance
Having established Villareal’s performance was deficient, Apelt must establish he

23
24

was prejudiced as a result. Under Strickland, Villareal’s performance was prejudicial if

25

there is a reasonable probability that the result of the proceeding would have been

26

different absent Villareal’s deficient performance.

Strickland, 466 U.S. at 694.

A

27
28

“reasonable probability” is “less than the preponderance more-likely-than-not standard.”
- 25 -

1
2

Summerlin, 427 F.3d at 643.

Rather, it is “a probability sufficient to undermine

3

confidence in the outcome.” Strickland, 466 U.S. at 694. In the specific context of

4

capital sentencing, “it is not necessary for the habeas petitioner to demonstrate that the

5

newly presented mitigation evidence would necessarily overcome the aggravating

6
7

circumstances.” Correll v. Ryan, 539 F.3d 938, 951-52 (9th Cir. 2008). Instead, the

8

focus should be on “the magnitude of the discrepancy between what counsel did

9

investigate and present and what counsel could have investigated and presented.” Hovey

10
11

v. Ayers, 458 F.3d 892, 929 (9th Cir. 2006) (quotation omitted).

12

Given Villareal’s weak presentation at sentencing, the prejudice inquiry is

13

straightforward. Villareal’s case in mitigation contained no evidence of Apelt’s alleged

14
15

poverty, no evidence of childhood physical abuse, no evidence of repeated childhood

16

sexual abuse, and no meaningful evidence of mental health problems.

17

information available to the sentencing court regarding Apelt’s childhood seemed to

18

The only

show Apelt had no problems during his childhood. (ROA 308 at 8.) In fact, the

19
20

prosecutor stressed Apelt’s alleged “normal childhood” and Villareal also submitted a

21

statement from Apelt’s mother stating Apelt had a normal childhood.13 (Doc. 326-2 at

22

34.) In short, the sentencing court was presented with a picture of Apelt’s background

23
24
25

that bore “no relation” to the picture presented by PCR counsel with apparently reliable
evidence. Rompilla, 545 U.S. at 392-93. The magnitude of the difference between the

26
27
28

13

At sentencing, Apelt’s mother stated in a letter Apelt had a “normal childhood.”
But during the PCR proceedings, she stated Apelt’s childhood contained numerous
traumatic events. The present record contains no way of resolving this inconsistency.
- 26 -

1
2

mitigating evidence that was presented at sentencing and the evidence that could have

3

been presented through a competent investigation is sufficient to undermine confidence

4

in the outcome. No fairminded jurist could conclude otherwise.

5

D.

Evidentiary Development

6
7

Apelt has established the PCR court’s denial of Claim 12 was an unreasonable

8

application of Strickland under 28 U.S.C. § 2254(d)(1). Apelt seeks development of the

9

claim, including expansion of the record and an evidentiary hearing. (Doc. 326 at 53–

10
11

55.) At the evidentiary hearing, Apelt plans to present testimony from Villareal, a mental

12

health expert, social history witnesses, and Apelt’s family members. (Id. at 54–55.)

13

Because § 2254(d)(1) does not preclude relief on Claim 12, Pinholster does not prohibit

14
15

evidentiary development in this Court. Pinholster, 131 S. Ct. at 1400-01 (“Section

16

2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas

17

relief”); see Henry, 720 F.3d at 1093 n.15 (explaining that Pinholster bars evidentiary

18

hearing unless Apelt satisfies § 2254(d)). As the Eleventh Circuit recently explained:

19
20
21
22
23
24

Nothing in Pinholster, or any other principle of habeas corpus, bars a
District Court from conducting an evidentiary hearing where, as here: (1)
the federal claim was adjudicated on the merits in state court; (2) there is a
determination based only on the state court record that the petitioner has
cleared the § 2254(d) hurdle; and (3) the habeas petitioner tried, but was not
given the opportunity to develop the factual bases of the claim in state court
within the meaning of 28 U.S.C. § 2254(e)(2).

25

Madison v. Commissioner, Alabama Dept. of Corrections, 761 F.3d 1240, 1249-50 (11th

26

Cir. 2014) (footnote omitted). The Ninth Circuit has not provided clear guidance on

27
28

whether an evidentiary hearing is required in cases such as this. See, e.g., Bemore v.
- 27 -

1
2
3

Chappell, No. 12-99005, 2015 WL 3559153 (9th Cir. June 9, 2015) (granting relief
without remanding for evidentiary hearing).

4
5

Having determined the denial of Apelt’s IAC claims was objectively
unreasonable, it is unclear whether an evidentiary hearing is required or advisable when

6
7

deciding whether to grant relief. It is undisputed Villareal presented only a modicum of

8

information and failed to investigate what appears to be substantial mitigating evidence

9

PCR counsel later discovered and presented. Holding an evidentiary hearing would

10
11

seemingly allow Apelt simply to present more evidence establishing Villareal’s

12

performance was defective.

Perhaps an evidentiary hearing is appropriate to allow

13

Respondents to challenge the veracity of Apelt’s evidence. But Respondents have not so

14
15

requested a hearing.

Accordingly, the Court will order briefing on whether an

16

evidentiary hearing should be held and, if so, the proposed scope of that hearing.

17

IV.

18

Claims 1-B, 1-D, 11, 14, 15, 17, 26, and 27
Apelt has a variety of other claims, none of which entitle him to relief. Because

19
20

resolution of these claims will be relevant should ultimate relief not be afforded on Claim

21

12, the Court will address them.

22

A. Claims 1-B and 1-D

23
24

In Claim 1-B, Apelt contends he was “severely mentally ill and grossly over-

25

medicated” at the time of trial, and that Villareal was ineffective for failing to challenge

26

his competency to stand trial. (See Doc. 326 at 16.) In Claim 1-D, Apelt makes the same

27
28
- 28 -

1
2
3
4
5

allegations with respect to his competence at sentencing.14 (Id.) Apelt is not entitled to
relief on these claims.
“Competence to stand trial requires that a defendant have (1) ‘a rational as well as
factual understanding of the proceedings against him,’ and (2) ‘sufficient present ability

6
7

to consult with his lawyer with a reasonable degree of rational understanding.’” Stanley v.

8

Cullen, 633 F.3d 852, 860 (9th Cir. 2011) (quoting Dusky v. United States, 362 U.S. 402,

9

402 (1960) (per curiam)). “A claim that counsel was deficient for failing to move for a

10
11

competency hearing will succeed only when there are sufficient indicia of incompetence

12

to give objectively reasonable counsel reason to doubt defendant’s competency, and there

13

is a reasonable probability that the defendant would have been found incompetent to

14
15
16
17
18

stand trial had the issue been raised and fully considered.” Hibbler v. Benedetti, 693 F.3d
1140, 1149-50 (9th Cir. 2012) (quotations omitted).
Respondents contend Villareal made a reasoned decision not to challenge Apelt’s
competency and that the record contains no support for the proposition that Apelt was not

19
20
21
22

competent to stand trial. (Doc. 335 at 20.) The Court agrees.
Villareal did not neglect to consider the issue of Apelt’s competency. Prior to
trial, co-counsel traveled to Germany, in part to investigate Apelt’s placement in a

23
24

psychological institution there. Counsel did not find evidence to support the filing of a

25
14

26
27
28

Because, as Apelt concedes, the claims “share the same factual nexus” (Doc.
326 at 16 n.6), the Court considers them together. The standard of review applicable to
the two claims is different in that Claim 1-D was not addressed by the state court while
Claim 1-B was addressed by the alternative ruling. Accordingly, AEDPA deference
applies to Claim 1-B but not Claim 1-D. In the end, however, it does not matter as both
claims fail regardless of the applicable standard.
- 29 -

1
2

motion to determine competency. (RT 6/11/90 at 7.) More significantly, the record does

3

not support a finding that Apelt lacked a rational and factual understanding of the

4

proceedings or the ability to consult with counsel with a reasonable degree of rational

5

understanding.15

6
7

Apelt was actively involved in his defense. He filed a pro per motion to change

8

counsel. (ROA 237.) He complained Villareal failed to communicate adequately with

9

him by phone or in writing; “refused to investigate specific details . . . that would

10
11

exonerate [him],” including “autopsy reports, photos, initial police reports stating

12

defendant is not suspected”; and failed to “forward requested materials from the legal

13

library.” (Id.) Apelt also authored jailhouse notes to his brother which indicated Apelt

14
15
16
17
18

was keenly aware of the factual details of his case, including the evidence against him,
and was rationally communicating with counsel about his defense. (RT 5/8/90 at 61–63.)
The record further shows Apelt was actively involved in the trial proceedings. For
example, Apelt notified Villareal that certain jurors had observed him being escorted

19
20

from the courtroom wearing shackles. (RT 4/26/90 (legal argument) at 3-4.) When

21

Villareal recounted the incident to the judge, Apelt corrected Villareal’s description of

22

the jurors’ location. (Id. at 3.) He drew a diagram of the jury box to help Villareal and

23
24
25
26
27
28

15

In rejecting Apelt’s claim that appellate counsel’s ineffectiveness constituted
cause to excuse the default of a claim alleging that the trial court committed
constitutional error by failing to conduct a competency hearing, this Court determined
that “the trial and sentencing record in this case would not alert a reasonable appellate
attorney to the feasibility of a procedural incompetency claim.” (Doc. 132 at 16.)
- 30 -

1
2
3
4
5

the court identify the jurors who had seen him. (Id.) He also told Villareal that the
incident jeopardized his right to a fair trial. (Id.)
In addition, Apelt’s trial testimony gave no cause for Villareal to doubt his
competence. Apelt recounted the travels that led him, Rudi, and Dorn to Mexico, San

6
7

Diego, and finally Phoenix. (RT 5/8/90 at 141–51.) He also testified at length and in

8

detail, recounting the events that led to his marriage and denying he had murdered Cindy.

9

(RT 5/8/90 at 140–77; RT 5/9/90 at 4–141.) Apelt even explained the purchase of the life

10
11

insurance policy as an investment for their children. (Id. at 156–57.) “That a defendant

12

is alert, unafraid to address the court, and able to use somewhat technical legal terms

13

appropriately is a factor suggesting that a competency hearing is not required.” Stanley,

14
15

633 F.3d at 861 (quotations omitted); see Turrentine v. Mullin, 390 F.3d 1181, 1209

16

(10th Cir. 2004) (recognizing that “evidence of a petitioner’s lucid and intelligible

17

testimony at trial refutes [a] claim of trial counsel’s failure to argue competency”).

18

To counter the idea that he was aware of the accusations against him and was

19
20

competent to assist counsel, Apelt relies on records indicating that at the time of his trial

21

he had been prescribed a number of medications, including Valium, Thorazine, Halcion,

22

Ativan, Parafon Forte, and Sinequan.

(Doc. 326 at 18–19; id., Ex. 36.)

Prior to

23
24

sentencing, the medical director of inmate health services at the Pinal County Jail

25

determined that Apelt was “overmedicated” and removed some of the medications, but

26

left in place the Halcion, Valium and Parafon Forte prescriptions. (Doc. 326, Ex. 36.)

27
28
- 31 -

1
2

In addition, Apelt has submitted a letter, dated January 16, 2004, from Dr. Edward

3

Fisher, a pharmacology and toxicology expert who reviewed Apelt’s medical records.

4

(Id., Ex. 38.) Dr. Fisher wrote that the medications Apelt was prescribed are powerful

5

drugs “generally considered to possess significant central nervous system (CNS)

6
7

depressant effects.” (Id.) According to Dr. Fisher, when the drugs are prescribed in

8

combination, “the risk of adverse effects increases significantly.” (Id.) Such “adverse

9

effects” include “oversedation, confusion, loss of self-control, impaired judgment, and

10
11

anterograde amnesia.” (Id.)

12

Apelt asserts “the drugs [and] doses administered to him, likely interfered with his

13

ability to consult with his lawyer and understand the proceedings.” (Doc. 326 at 19.)

14
15

Apelt does not, however, cite any evidence that the drugs did in fact affect his

16

competence. In United States v. Shan Wei Yu, 484 F.3d 979, 985 (8th Cir. 2008), the

17

Eighth Circuit found the defendant’s consumption of Prozac, Seroquel, Ativan, and

18

sleeping pills did not require the trial court to conduct a competency hearing absent

19
20

evidence of incompetency. The court noted that “[n]o party suggested at trial . . . that Yu

21

was incompetent or unable to understand the proceedings, and Yu testified coherently as

22

to the nature of his defense.” Id. The court also found “Yu’s complaints about his

23
24

attorneys . . . evidence that Yu understood the case against him and was capable of

25

consulting with counsel.” Id. As in Yu, the record here shows Apelt was aware of the

26

factual details of his case, communicated rationally with Villareal, and participated

27
28

actively in his defense.
- 32 -

1
2

Apelt also cites the fact that he had been placed on suicide watch while awaiting

3

trial and had been admitted to the custody of the correctional health services on another

4

occasion. (Doc. 326 at 18.) The fact that Apelt had a history of mental health problems

5

was not in itself sufficient to show he was incompetent to stand trial. See Hoffman v.

6
7

Arave, 455 F.3d 926, 938 (9th Cir. 2006) (“We have held that those with mental

8

deficiencies are not necessarily incompetent to stand trial.”), vacated on other grounds by

9

Arave v. Hoffman, 552 U.S. 117, 117-19 (2008) (per curiam)). And Apelt has failed to

10
11
12
13

identify an instance in which he behaved irrationally, appeared not to understand the
proceedings, or did not communicate effectively with Villarreal.
In sum, Apelt has not met his burden of showing Villareal performed ineffectively

14
15

under Strickland by failing to seek a competency hearing. There were not sufficient

16

indicia of incompetence to give Villareal reason to doubt Apelt’s competency, and there

17

was not a reasonable probability that Apelt would have been found incompetent if the

18

issue been raised and considered. Claims 1-B and 1-D are denied.

19
20

B. Claim 11

21

Apelt’s Claim 11 alleges the trial court denied him “the tools of an adequate

22

defense in violation of his rights under the Eighth and Fourteenth Amendments to the

23
24

United State Constitution” when it denied counsel Villareal’s request to travel to

25

Germany to investigate mitigating evidence. (Doc. 285 at 11–18.) The state court’s

26

decision was not unreasonable.

27
28
- 33 -

1
2

On direct appeal, the Arizona Supreme Court rejected Apelt’s argument that the

3

trial court erred in denying his request for money to travel to Germany. The court noted

4

“[a] defendant has a due process right to such assistance upon a . . . showing of

5

necessity.” State v. Apelt, 861 P.2d 634, 650 (Ariz. 1993). In denying relief on this

6
7

claim, the Arizona Supreme Court cited Caldwell v. Mississippi, 472 U.S. 320, 323

8

n.1 (1985), which held there was “no deprivation of due process in the trial judge’s

9

decision” to deny the appointment of defense experts where a defendant “offered little

10
11
12
13

more than undeveloped assertions that the requested assistance would be beneficial.”
The Arizona Supreme Court’s application of Caldwell was not unreasonable.
In his motion for additional funding and in his arguments to the court, Villareal

14
15

offered only generalized assertions that further investigation in Germany would be

16

beneficial.

17

potential mitigating evidence counsel mentioned were a psychological hospitalization and

18

Prior to the aggravation/mitigation hearing, the only specific areas of

a difficult birth. (RT 6/11/90 at 7–8.) The court provided Villareal an opportunity to

19
20

supplement his request, but he failed to provide the additional information. (Id. at 10;

21

ROA 302.) Villareal again failed to offer any specific information when he renewed his

22

funding request and moved for a continuance prior to the aggravation/mitigation hearing.

23
24

(ROA 307.) At the hearing, Villareal listed the types of records and witnesses that should

25

be reviewed in a mitigation case but again failed to provide specific information in

26

support of his request for funding. (RT 8/7/90 at 5.)

27
28

Villareal’s submissions to the trial court did not make the “threshold showing” that
- 34 -

1
2

additional funds “would be helpful.” Williams v. Stewart, 441 F.3d 1030, 1054 (9th Cir.

3

2006). In a case presenting analogous facts, the Ninth Circuit held a trial court did not

4

commit constitutional error when it denied funding for an investigator to travel to West

5

Virginia in search of mitigating information. Id. The court noted “[t]he only information

6
7

[the petitioner] submitted to the trial court regarding this request was a list of many

8

people who lived in the area of West Virginia where [he] was raised.” Id. The petitioner

9

had not proffered “any information other than possible witness names and that they

10
11

would be helpful.” Id.

12

The information provided by Villareal was similarly undeveloped. Beyond the

13

fact that Apelt was born and raised in Germany, Villareal failed to support his argument

14
15

that it was necessary for him to travel to Germany to gather mitigating evidence; nor did

16

he file the statement of necessity required by the trial court. Because Villareal offered

17

only “undeveloped assertions” in support of his request for funds to travel to Germany,

18

the Arizona Supreme Court did not unreasonably apply Caldwell in denying this claim.

19
20
21
22

Apelt is not entitled to relief on Claim 11.
C. Claim 14
Apelt’s Claim 14 alleges the state courts violated his rights under the Eighth and

23
24
25
26

Fourteenth Amendments by finding he procured the commission of the murder under
A.R.S. § 13-703(F)(4). The Court disagrees.
Section 13-403(F)(4) establishes an aggravating factor where the defendant

27
28

“procured the commission of the offense by payment, or promise of payment, of anything
- 35 -

1
2

of pecuniary value.” The factor applies “not only to hired killer situations, but also to

3

those cases in which the murder was committed with a ‘financial motivation.’” State v.

4

Adamson, 665 P.2d 972 (Ariz. 1983).

5

The trial court found the factor had been proven: “The defendant conspired with

6
7

another to assist in the commission of the offense with the expectation and promise to the

8

other to share in the receipt of the insurance proceeds on the life of the victim in the sum

9

of $400,000.” (RT 8/13/90 at 7.) The Arizona Supreme Court affirmed the trial court’s

10
11
12
13

finding:
We agree that the evidence showed beyond a reasonable doubt that [Apelt]
killed Cindy in order to receive the $400,000 insurance proceeds (§ 13–
703(F)(5)). No further discussion is necessary.

14
15
16
17
18

We also agree that the evidence establishes beyond a reasonable doubt that
[Apelt] procured Rudi’s assistance in the murder by promising him a share
of the insurance proceeds, thus satisfying the § 13-703(F)(4) factor.
Apelt, 861 P.2d at 652.
On habeas review of a state court’s finding of an aggravating factor, a federal

19
20

court is limited to determining “whether the state court’s [application of state law] was so

21

arbitrary and capricious as to constitute an independent due process or Eighth

22

Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). In making that

23
24

determination, the reviewing court must inquire “whether, after viewing the evidence in

25

the light most favorable to the prosecution, any rational trier of fact could have found that

26

the factor had been satisfied.” Id. at 781 (quoting Jackson v. Virginia, 443 U.S. 307, 319

27
28

(1979)).
- 36 -

1
2

In addition, under section 28 U.S.C. § 2254(d) federal courts “must apply the

3

standards of Jackson with an additional layer of deference.” Juan H. v. Allen, 408 F.3d

4

1262, 1274 (9th Cir. 2005); see Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per

5

curiam) (noting Jackson claims are “subject to two layers of judicial deference”);

6
7

Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Therefore, on habeas review, “a

8

federal court may not overturn a state court decision rejecting a sufficiency of the

9

evidence challenge simply because the federal court disagrees with the state court. The

10
11

federal court instead may do so only if the state court decision was ‘objectively

12

unreasonable.’” Johnson, 132 S. Ct. at 20162 (quoting Renico v. Lett, 559 U.S. 766, 773

13

(2010)).

14
15

Although Apelt asserts “there is no evidence that [he] promised Rudi anything in

16

exchange for Rudi’s role in the murder” (Doc. 285 at 19), the gravamen of his argument

17

is that Dorn’s testimony was inconsistent, unreliable, and not sufficient to support a

18

finding that Apelt procured his brother’s assistance in the murder. This argument is

19
20
21
22

unpersuasive.
Dorn testified that on the day before the murder Apelt brought Cindy’s life
insurance paperwork to the motel where Dorn and Rudi were staying and told them “we

23
24

can have a lot of money, and we don’t have to worry anymore . . . if he would go out and

25

kill Cindy.” (RT 5/2/90 at 51.) Apelt contends that this is inconsistent with testimony in

26

which Dorn stated Apelt said “he” would be rich if Cindy died. (See id. at 49.) The fact

27
28

that Apelt used the singular pronoun on an earlier occasion is not inconsistent with a
- 37 -

1
2
3
4
5

finding that he intended to share the insurance proceeds with Rudi in exchange for Rudi’s
participation in the murder.
Apelt challenges Dorn’s credibility because she was a coconspirator who testified
against the brothers under a grant of immunity. On habeas review, however, this Court is

6
7

not permitted to re-assess Dorn’s credibility. See Rice v. Collins, 546 U.S. 333, 341-42

8

(2006) (“Reasonable minds reviewing the record might disagree about . . . credibility, but

9

on habeas review, that does not suffice to supersede the trial court’s credibility

10
11

determination.”). In addition, all evidence must be considered in the light most favorable

12

to the prosecution, Jeffers, 497 U.S. at 782, and if the facts support conflicting inferences,

13

such as Dorn’s putatively inconsistent testimony, a reviewing court “must presume—

14
15

even if it does not affirmatively appear in the record—that the trier of fact resolved any

16

such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson,

17

443 U.S. at 326.

18

Applying the levels of deference required under Jackson and AEDPA, the Court

19
20

finds Apelt is not entitled to relief. A rational trier of fact could have concluded, as the

21

trial court did, that the factor was proven, and the decision of the Arizona Supreme Court

22

affirming that finding was not objectively unreasonable. Claim 14 is denied.16

23
24
25
26
27
28

16

In his merits brief Apelt raised for the first time an argument that his
constitutional rights were violated because the (F)(4) and F(5) factors were “doublecounted” in aggravation. (See Doc. 285 at 21.) Apelt did not pursue this argument in his
reply brief. (See Doc. 301 at 13-18.) Even if Apelt has properly raised such a claim, the
holding in State v. Carlson, 48 P.3d 1180 (Ariz. 2002), does not, as he contends, entitle
him to habeas relief. In Carlson, the Arizona Supreme Court held that “[e]ven if there is
but one transaction leading to the murder, a judge can properly use a single fact to
- 38 -

1
2

D. Claim 15

3

Apelt’s Claim 15 alleges the state courts violated his rights under the Eighth and

4

Fourteenth Amendments by finding the murder was committed in an especially cruel,

5

heinous, or depraved manner under A.R.S. § 13-703(F)(6). Apelt is incorrect.

6
7

The (F)(6) aggravating factor, phrased in the disjunctive, is satisfied if the murder

8

is either especially heinous, or cruel, or depraved. See, e.g., State v. Murray, 906 P.2d

9

542, 570 (Ariz. 1995). The especially cruel prong is satisfied “if the victim consciously

10
11

experienced physical or mental pain and suffering prior to dying.” State v. Lopez, 847

12

P.2d 1078, 1090 (Ariz. 1992). Evidence about “[a] victim’s certainty or uncertainty as to

13

his or her ultimate fate can be indicative of cruelty and heinousness.” State v. Gillies,

14
15

691 P.2d 655, 660 (Ariz. 1984). Factors supporting a finding that a murder was heinous

16

and depraved include the infliction of gratuitous violence and the helplessness of the

17

victim. See Gretzler, 659 P.2d at 11.

18

The trial court found the (F)(6) factor was satisfied: “The nature of the wounds

19
20

(fifty-three separate injuries, five stab wounds and a cut of the throat which nearly

21

decapitated the victim, and a shoe print on her face) establish that the killing was

22

especially cruel to the victim or heinous or depraved in its execution.” (RT 8/13/90 at 7.)

23
24
25
26
27
28

support the application of more than one aggravating factor” so long as he does not give
full weight to each factor. 48 P.3d at 1191. While the court noted that Apelt was the
“rare” instance where both the (F)(4) and (F)(5) had been applied, the court also
explained that it “did not consider the single transaction problem in that case.” Id.
Carlson does not, therefore, support Apelt’s argument that double-counting is a grounds
for relief.
- 39 -

1
2
3
4
5

The Arizona Supreme Court upheld the trial court’s finding, noting the circumstances of
the murder supported the finding. Apelt, 861 P.2d at 652-53.
Apelt contends the Arizona Supreme Court unreasonably applied Jackson, and
made an unreasonable determination of the facts, in concluding that the (F)(6) factor had

6
7

been established. (Doc. 285 at 29.) Specifically, he asserts “[t]here was simply no

8

evidence that the victim consciously suffered during her death.” (Id. at 28.) Apelt is

9

wrong.

10
11

The Court’s review of this claim is limited to assessing “whether, after viewing the

12

evidence in the light most favorable to the prosecution, any rational trier of fact could

13

have found that the factor had been satisfied.” Jeffers, 497 U.S. at 781 (quoting Jackson,

14
15

443 U.S. at 319). Here, a rational fact-finder, viewing the evidence in the light most

16

favorable to the State, could have inferred, as the state courts did, that Cindy was

17

conscious and suffered mental and physical pain before being killed by the Apelts.

18

Evidence suggested Cindy was forcibly removed from the apartment and was bound at

19
20

some point.

21

conscious before she suffered her fatal wounds. Apelt contends this evidence, along with

22

Scraped knees and evidence of a defensive wound indicated she was

evidence of the numerous nonfatal wounds Cindy suffered, does not conclusively prove

23
24

she was conscious and experienced pain before she died because the coroner’s testimony

25

about the nature and timing of the injuries was equivocal. (Doc. 285 at 27–28.) But

26

interpreted in the light most favorable to the prosecution, this evidence was sufficient for

27
28

a rational fact-finder to conclude Cindy was conscious and suffered mental and physical
- 40 -

1
2
3
4
5

pain before she was killed.
The state court’s denial of Claim 15 was not objectively unreasonable.17 Apelt is
not entitled to relief on Claim 15.
E. Claim 17

6
7

Apelt’s claim 17 alleges the trial court failed to properly consider the mitigating

8

factors proffered at sentencing and that the Arizona Supreme Court failed to properly

9

consider and independently reweigh the evidence, in violation of Apelt’s rights under the

10
11

Eighth and Fourteenth Amendments. Principally, he asserts the Arizona Supreme Court

12

erred by excluding from its consideration certain mitigating evidence in violation of

13

Tennard v. Dretke, 542 U.S. 274 (2004). Apelt is not entitled to relief on this claim.

14
15

Once a determination is made that a person is eligible for the death penalty, the

16

sentencer must consider relevant mitigating evidence, allowing for “an individualized

17

determination on the basis of the character of the individual and the circumstances of the

18

crime.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). The Supreme Court has

19
20

explained that “evidence about the defendant’s background and character is relevant

21

because of the belief, long held by this society, that defendants who commit criminal acts

22

that are attributable to a disadvantaged background may be less culpable than defendants

23
24
25

who have no such excuse.” Wiggins v. Smith, 539 U.S. 510, 535 (2003) (quoting Penry
v. Lynaugh, 492 U.S. 302, 319 (1989)). Therefore, the sentencer in a capital case is

26
27
28

17

Having determined the state courts reasonably found the cruelty prong had been
proven, it is unnecessary for the Court to address the parties’ arguments concerning the
heinous or depraved prongs.
- 41 -

1
2
3
4
5

required to consider any mitigating information offered by a defendant, including nonstatutory mitigation.
However, while the sentencer must not be foreclosed from considering relevant
mitigation, “it is free to assess how much weight to assign such evidence.” Ortiz v.

6
7

Stewart, 149 F.3d 923, 943 (9th Cir. 1998). There is no set formula for weighing

8

mitigating evidence, and the sentencer may be given “unbridled discretion in determining

9

whether the death penalty should be imposed after it has found that the defendant is a

10
11
12
13

member of the class made eligible for that penalty.” Zant v. Stephens, 462 U.S. 862, 875
(1983).
Apelt’s sentencing did not violate these requirements. At sentencing, the trial

14
15

court found Apelt had failed to establish any statutory mitigating factors. The court then

16

stated it had considered and rejected the nonstatutory mitigating circumstance offered by

17

counsel: “The defendant presented other matters for the court to consider which the court

18

has considered which include his remorse, cooperation and good behavior, his new found

19
20

religious beliefs, his military service, and other matters which appear of record, but none

21

of which are found to be significant mitigating factors; all of which have been

22

considered.”

(RT 8/13/90 at 8–9.)

On direct appeal, the Arizona Supreme Court

23
24

independently reviewed the aggravating and mitigating circumstances, and found Apelt’s

25

mitigation insufficiently substantial to warrant leniency. Apelt, 861 P.2d at 653-54.

26

Given that the state courts considered all proffered mitigation, there was no constitutional

27
28

violation.
- 42 -

1
2

The trial court expressly stated it had “considered” all of Apelt’s proffered

3

mitigating factors. (RT 8/13/90, at 8–9.) This statement is virtually dispositive of

4

Apelt’s claim. See Parker v. Dugger, 498 U.S. 308, 314-15 (1991) (“We must assume

5

that the trial court considered all [mitigating] evidence before passing sentence. For one

6
7

thing, he said he did.”). As for the Arizona Supreme Court, its independent review did

8

not exclude Apelt’s mitigating evidence from consideration. Apelt focuses on the court’s

9

statement that Apelt “failed to advance any credible argument as to why some factors

10
11

should be considered mitigating at all.” Apelt, 861 P.2d at 653-54. But that statement did

12

not refer to the entirety of Apelt’s mitigation evidence but rather to Apelt’s argument that

13

certain circumstances—namely his cooperation with the presentence investigation, the

14
15

plea bargain offered to Rudi, and Dorn’s immunity—were in fact mitigating at all. Id.

16

Again, there is no constitutional requirement that the sentencer assign proffered

17

mitigating evidence any particular weight. See Harris, 513 U.S. at 512.

18

Finally, Apelt asserts the Arizona courts imposed a causal nexus requirement in

19
20

violation of Supreme Court rulings. The argument that the courts employed such a test in

21

Apelt’s case, however, is unsupported by the record. The sentencing court expressly

22

stated that it had “considered” all of the proffered mitigation, and the opinion of the

23
24
25
26

Arizona Supreme Court does not discuss a causal connection requirement.
The state courts considered all the mitigating evidence Apelt presented.
Therefore, Apelt is not entitled to relief on Claim 17.

27
28
- 43 -

1
2

F. Claim 26

3

Apelt’s claim 26 contends he is intellectually disabled and therefore, under Atkins

4

v. Virginia, 536 U.S. 304 (2002), his execution is prohibited by the Eight Amendment.18

5

(Doc. 285 at 35.)

6
7

In Atkins, the United States Supreme Court held that “death is not a suitable

8

punishment for” an intellectually disabled criminal and the Eighth Amendment prohibits

9

the execution of such persons. Atkins, 536 U.S. at 321. The Supreme Court explained

10
11

that “clinical definitions of mental retardation require not only subaverage intellectual

12

functioning, but also significant limitations in adaptive skills such as communication,

13

self-care, and self-direction that became manifest before age 18.” Id. at 318. However,

14
15

the Supreme Court reserved for the states “the task of developing appropriate ways to

16

enforce the constitutional restriction” against executing intellectually disabled persons.

17

Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).

18

Arizona law defines intellectual disability as “a condition based on a mental deficit

19
20

that involves significantly subaverage general intellectual functioning, existing

21

concurrently with significant impairment in adaptive behavior, where the onset of the

22

foregoing conditions occurred before the defendant reached the age of eighteen.” A.R.S.

23
24
25

§ 13-753(K)(3). “Significantly subaverage general intellectual functioning” means a full
scale intelligence quotient of 70 or lower. A.R.S. § 13-753(K)(5). The statute directs the

26
27
28

18

The terms “intellectual disability” and “mental retardation” “describe the
identical phenomenon.” Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). Unless appearing
in a quote, the Court uses the former.
- 44 -

1
2
3
4
5

trial court, in determining IQ, to “take into account the margin of error for the test
administered.” Id.
Arizona law defines “adaptive behavior” as “the effectiveness or degree to which
the defendant meets the standards of personal independence and social responsibility

6
7

expected of the defendant’s age and cultural group.” A.R.S. § 13–753(K)(1). The statute

8

“requires an overall assessment of the defendant’s ability to meet society’s expectations

9
10
11
12
13

of him” and “does not require a finding of [intellectual disability] based solely on proof
of specific deficits or deficits in only two areas.”19 State v. Grell, 135 P.3d 696, 709
(Ariz. 2006).
Under Arizona law, a defendant bears the burden of proving intellectual disability

14
15

by clear and convincing evidence. A.R.S. § 13–753(G). A “determination by the trial

16

court that the defendant’s intelligence quotient is sixty-five or lower establishes a

17

rebuttable presumption that the defendant has [an intellectual disability].” Id. Even if

18

such a presumption is established, however, a defendant retains the burden of persuasion

19
20

on the issue of intellectual disability. See State v. Arellano (Apelt), 143 P.3d 1015, 1019

21

(Ariz. 2006).

22

The state court held an evidentiary hearing on the Atkins issue from April 30,

23
24
25
26
27
28

2007, through May 11, 2007, and on September 28, 2007. At the conclusion of the
19

By contrast, the Diagnostic and Statistical Manual-IV (DSM-IV) instructs that
poor adaptive skills exist when there are deficits in at least two of the following areas:
communication, self-care, home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health, and safety. See
Grell, 135 P.3d at 709 n.12.
- 45 -

1
2

hearing, the court found that Apelt had not proven he was intellectually disabled. (Doc.

3

285, Ex. 27.) Apelt challenges that ruling, arguing the court committed several errors in

4

its interpretation of the evidence with respect to both the subaverage intelligence and

5

adaptive behavior prongs. (See Doc. 285 at 39.) Respondents contend the state court’s

6
7

ruling was neither contrary to nor an unreasonable application of Atkins, and did not

8

involve an unreasonable determination of the facts. (Doc. 291 at 55.) The Court agrees.

9

Under AEDPA, Apelt must show that the state court’s decision was contrary to or

10
11

an unreasonable application of Atkins, 28 U.S.C. § 2254(d)(1), or was based on an

12

unreasonable determination of the facts in light of the evidence presented at the

13

evidentiary hearing, § 2254(d)(2). Under 28 U.S.C. § 2254(e)(1), “a determination of a

14
15

factual issue made by a State court [is] presumed to be correct,” and a petitioner has “the

16

burden of rebutting the presumption of correctness by clear and convincing evidence.”

17

The parties agree that the question of whether Apelt is intellectually disabled is a factual

18

issue and subject to review under (d)(2).20 (See Doc. 301 at 31.)

19
20

Apelt’s arguments consist of disagreements with the state court’s analysis of the

21

evidence presented in the Atkins proceedings. He identifies several alleged errors. With

22

respect to subaverage intelligence, Apelt asserts the court relied on an “unverifiable IQ

23
24
20

25
26
27
28

Respondents argue that the “rational factfinder” standard of review, see Jackson,
443 U.S. at 307, should apply to Apelt’s Atkins claim, so that the state court’s ruling that
Apelt did not prove intellectual disability must be upheld if any rational trier of fact could
have reached the same conclusion. (Doc. 291 at 58.) Because the applicability of the
rational factfinder standard in the Atkins context appears unsettled, compare United
States v. Webster, 421 F.3d 308, 311 (5th Cir. 2005), with Hooks v. Workman, 689 F.3d
1148, 1166 (10th Cir. 2012), the Court will review the state court’s findings under 28
U.S.C. § 2254(d)(2) and (e)(1).
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1
2

score from Apelt’s childhood” and applied an “inappropriate margin of error to IQ

3

scores.” (Doc. 285 at 39.) With respect to adaptive behavior, Apelt asserts the court

4

“overemphasized” his post-incarceration behavior and “disregarded and misinterpreted

5

evidence of adaptive behavior deficits.” (Id.) As discussed below, these alleged errors

6
7
8
9

do not entitle Apelt to habeas relief.
i.

Subaverage intelligence

During the evidentiary hearing, the court heard testimony from Dr. Helmut Kury,

10
11

a psychologist, and Dr. Ronald Ruff, a neuropsychologist, on behalf of Apelt, and Dr.

12

John Moran, a clinical psychologist, on behalf of the State.

13

performed IQ tests on Apelt.

Drs. Ruff and Kury

The record also contains an IQ score from a test

14
15
16
17
18

administered when Apelt was a child. In addition, Dr. Harry Tamm, a neurologist
retained by Apelt, reviewed the results of an EEG and an MRI brain scan.
Drs. Ruff and Kury concluded Apelt is intellectually disabled. Specifically, they
found that he suffers from “Mild Mental Retardation.” (Doc. 285, Ex. 3 at 5.) Dr. Moran

19
20

concluded Apelt is not intellectually disabled under Arizona law. (Doc. 285, Ex. 5 at 59.)

21

After considering the evidence, the court determined Apelt failed to establish he has

22

significantly subaverage general intellectual functioning under A.R.S. § 13-753(K)(5).

23
24

(Doc. 285, Ex. 27 at 3–4.) The court explained Apelt had been tested as a child and

25

found to have an “overall IQ” of 88 based on the German children’s version of the

26

Hamburg Wechsler Adult Intelligence Scales (HAWIE).” The court also found that

27
28

Apelt had malingered during more recent exams.
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1
2

Apelt criticizes the court’s decision to accept the validity of the childhood IQ

3

score of 88 despite the lack of raw testing data and information about the qualifications of

4

those who administered and scored the test, and notwithstanding the skepticism of Drs.

5

Kury and Ruff, who opined that the score was erroneous. Apelt also challenges the

6
7

court’s conclusion that he malingered during the IQ tests administered by Drs. Kury and

8

Ruff. But having reviewed the record, the court’s factual findings are not unreasonable

9

under § 2254(d)(2).

10
11

In 2004, Dr. Kury administered eight separate IQ tests, averaged them, and arrived

12

at a full-scale IQ score of 65. (RT 5/3/07 at 37, 79-80, 83-89; see Doc. 285, Ex. 1 at 25-

13

26.) Dr. Kury testified that the applicable margin of error is ± 15 points, and agreed that

14
15

there “is a 95 percent certainty that Michael Apelt’s IQ of 65 average, really falls

16

somewhere between 50 or 80.” (Id. at 111–12.) In 2000, Dr. Ruff administered a battery

17

of IQ tests and determined that Apelt’s full-scale IQ was 61, with a margin of error of ± 5

18

points. (RT 5/10/07 at 88–111, 194.)

19
20

Dr. Kury testified that he detected “slight malingering” by Apelt but it did not

21

“significantly” affect the IQ scoring. (RT 5/3/07 at 86.) He further stated there were

22

“indications” of malingering but they were not “strong enough” for him to “change his

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24

opinions.” (Id. at 95.) According to Dr. Kury, even if malingering had affected the

25

testing, so that Apelt’s IQ was higher than the reported 65, “it would still be a problem

26

case.” (Id.) Dr. Kury also testified Apelt’s reported childhood IQ score of 88 was too

27
28
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1
2
3
4
5

high “in principle” for him to have been placed in special education, and “usually” a child
with that score would not be sent to such a school. (Id. at 88.)
Dr. Ruff testified that Apelt’s “IQ was probably impaired by the time he reached
18.” (5/10/07 at 105.) He explained, “I am not exactly sure what IQ he had at age 18,”

6
7

but assuming Apelt’s IQ was 88 at age nine, Dr. Ruff did not believe it remained at that

8

level. (Id. at 102.) Instead, it likely “tapered downward” because Apelt was placed in a

9

special education school where he lacked the proper instruction and stimulation to

10
11

develop his intellectual capacity. (Id. at 103–04.)

12

Dr. Ruff acknowledged it was possible Apelt malingered on some tests. (Id. at

13

207.) He administered a test to detect malingering, which Apelt passed. (Id. at 234.)

14
15

The fact that Apelt passed the test, however, “[d]oes not mean that I don’t think there

16

were moments when he didn’t exaggerate, given [sic] poor efforts.” (Id.) Dr. Ruff

17

further clarified that, “I cannot from one test conclude that all of the other data attention

18

[sic] is reliable. I want to say that test, he passed. That is all.” (Id.)

19
20

In his report, Dr. Moran wrote that Apelt “was assessed to have an IQ of 88 and

21

thus would not be considered mentally retarded before age 18.” (Doc. 285, Ex. 5 at 59.)

22

He testified, however, that both Apelt’s childhood HAWIE-R score of 88 and his 2004

23
24
25
26

adult score of 47, on a test administered by Dr. Kury, were probably in error. (RT 5/8/07
at 48–49.)
Dr. Moran further testified that during their interviews it appeared Apelt was

27
28

“dissimulating” or malingering to show that his intellectual function was lower than it
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1
2

actually was. (RT 5/10/07.) Rather than trying to mask his deficiencies, as people with

3

intellectual disability often do, Apelt was trying to “demonstrate . . . his incompetence or

4

deficiencies.” (RT 5/10/07 at 36.)

5

From this evidence, it was not unreasonable for the court to conclude Apelt had

6
7

not established by clear and convincing evidence that he had subaverage intelligence at

8

age 18. The experts expressed skepticism about Apelt’s childhood IQ score of 88, but the

9

only specific challenge they offered was that Apelt would not have been placed in a

10
11

special education school if his IQ had been that high. That argument is unpersuasive as a

12

criticism of the test because no one contests that Apelt’s IQ was measured at 88 and,

13

notwithstanding that result, he was in fact placed in a special education school.

14
15

Apelt argues the court unreasonably found the experts failed to account for the

16

decline in Apelt’s IQ from 88 to its present level. As noted, Dr. Ruff testified that

17

Apelt’s IQ may have declined due to his placement in a special education school. The

18

fact that the court was not persuaded by this explanation does not render its findings

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20
21
22

about Apelt’s IQ scores unreasonable.
Apelt also contends the court “misstated Dr. Tamm’s opinion.” (Doc. 285 at 47.)
Dr. Tamm, reviewing Apelt’s EEG and MRI, found abnormalities “consistent with the

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24

hypothesis that [Apelt] suffered some remote brain damage, probably early in life.” (Id.,

25

Ex. 7.) As the court noted, Dr. Tamm characterized these abnormalities as “mild” and

26

“nonspecific,” possibly representative of a “normal variant.” (Id.) The court found Apelt

27
28

did not suffer any brain injury that would explain the decrease in his IQ. (Id., Ex. 27 at
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1
2
3
4
5

4.) Contrary to Apelt’s argument, the court did not find that the absence of brain damage
precluded a finding of intellectual disability.
As to Apelt’s other criticisms of the state court’s analysis, the fact that the court
accepted the 15 point margin of error testified to by Dr. Kury does not affect the

6
7

reasonableness of the court’s findings. Apelt asserts that with the application of the

8

proper, five point margin of error to the IQ score of 65 obtained by Dr. Kury, there is a

9

95% chance that Apelt’s IQ is between 60 and 70, rather than between 50 and 80, as the

10
11

court stated in its ruling.

12

Dr. Kury repeatedly testified that the applicable margin of error was 15 percent.

13

(RT 5/3/07 at 105–06; RT 5/4/07 at 38–39.) Even assuming, as Apelt suggests, that this

14
15

testimony was the result of a faulty translation, Apelt does not explain how the

16

application of a wider margin of error affected the court’s analysis of Apelt’s IQ at the

17

age of 18.21

18

Finally, the court did not clearly err when it noted the experts found evidence of

19
20

malingering. As discussed above, all of the experts testified that they detected some

21

degree of malingering or dissimulation on Apelt’s part. Even Apelt’s experts, Drs. Kury

22

and Ruff, could not exclude the possibility that Apelt malingered during the IQ tests. Dr.

23
24
25

Kury testified the indications were not strong enough for him to change his overall
opinion about Apelt’s intellectual disability. (RT 5/3/07 at 86.) Dr. Ruff testified that

26
27
28

21

Dr. Kury, a German national, testified through a translator.
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1
2
3
4
5

Apelt passed a malingering test but he could not conclude that all the testing data were
reliable. (RT 5/10/07 at 234.)
Based on this testimony, the court did not clearly err by taking into account
evidence of malingering when it considered whether Apelt met his burden of establishing

6
7

subaverage intelligence.

8
9
10

ii.

Adaptive behavior

Drs. Ruff and Moran assessed Apelt’s adaptive behavior, reaching opposite
conclusions.22

The state court determined Apelt failed to prove he suffered from

11
12

significant deficits in adaptive behavior. Applying the standard set forth in Grell—that

13

Arizona law “does not require a finding of mental retardation based solely on proof of

14

specific deficits or deficits in only two areas,” 135 P.3d at 709—the court found that

15
16

Apelt did not suffer from significant deficits in adaptive behavior. Apelt contends the

17

court erred by improperly discounting Dr. Ruff’s conclusions. He argues Dr. Ruff’s

18

methodology and opinions were more credible than those of the state’s expert, Dr.

19
20

Moran.

21

Dr. Ruff administered the Independent Living Scales and Adaptive Behavior

22

Assessment System, and reviewed collateral records from Apelt’s family, friends, and

23

teachers. (See Doc. 285 at 52.) Dr. Ruff concluded Apelt suffered from significant

24
25

deficits in four of the 11 areas specified by the DSM-IV: social/interpersonal skills,

26

financial responsibility, functional academics, and work. (See RT 5/10/07 at 113–29.)

27
22

28

Dr. Kury did not conduct an adaptive functioning analysis. He opined, however,
that Apelt was intellectually disabled. (RT 5/3/07 at 80–81.)
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1
2
3
4
5

Dr. Moran disagreed and explained Apelt’s conduct was actually indicative of anti-social
personality disorder. (RT 5/8/07 at 41–44.)
The court was entitled to assess the relative credibility of the two experts and their
opinions about these areas of Apelt’s conduct. See O’Neal v. Bagley, 743 F.3d 1010,

6
7

1023 (6th Cir. 2013) (“With expert testimony split, as it often is, the state court chose to

8

credit [the two experts] over [Apelt’s expert], and we cannot say from this vantage that it

9

was unreasonable to do so.”). And the court’s decision to credit one qualified expert over

10
11
12

another is not enough to merit relief. Therefore, the Court did not clearly err when it
found Apelt failed to prove he met the adaptive behavior prong of intellectual disability.23

13

iii. Conclusion

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15

When assessing the reasonableness of the state court’s factual findings, this Court

16

“must be particularly deferential to [its] state-court colleagues.” Taylor v. Maddox, 266

17

F.3d 992, 1000 (9th Cir. 2004). To grant relief, it “must be convinced that an appellate

18

panel, applying the normal standards of appellate review, could not reasonably conclude

19
20

that the finding is supported by the record.” Id.

21
22
23
24
25
26
27

23

The state court found also that Apelt had “failed to prove by even a
preponderance of the evidence that the onset of his subaverage intellectual functioning
and adaptive behavior deficits occurred before he reached the age of eighteen.” (Doc.
285, Ex. 27 at 7.) Accordingly, the court concluded Apelt had “failed to show by even a
preponderance of the evidence that he is mentally retarded.” (Id.) Having determined the
state court did not err with respect to the subaverage intelligence and adaptive behavior
prongs, the Court need not address the third prong.

28
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1
2

In addressing Apelt’s intellectual disability claim, the state court took into account

3

the credibility of the witnesses, including each party’s experts and their opposing

4

opinions. The court’s factual findings and credibility determinations are presumed to be

5

correct. 28 U.S.C. § 2254(e)(1); see also Thompson v. Keohane, 516 U.S. 99, 111

6
7

(1995). And Apelt has not rebutted the court’s factual findings with clear and convincing

8

evidence. Id. The court’s ruling on the Atkins issue was not based on an unreasonable

9

determination of the facts under § 2254(d)(2); see also Richter, 562 U.S. at 101.

10
11

G. Claim 27

12

Apelt’s Claim 27 contends the clear and convincing standard by which the state

13

court required him to prove his intellectual disability violated Cooper v. Oklahoma, 517

14
15
16
17
18

U.S. 348 (1996), and his rights to due process and freedom from cruel and unusual
punishment.
Cooper prohibits a state from forcing a defendant to prove his competency to
stand trial by clear and convincing evidence. 517 U.S. at 358-69. The Court in Atkins,

19
20

however, expressly permitted states to establish their own procedures for determining

21

intellectual disability. 536 U.S. at 317-18; see Bobby v. Bies, 556 U.S. 825, 831 (2009)

22

(reiterating that Atkins “did not provide definitive procedural or substantive guides”).

23
24

Therefore, there is no clearly established federal law setting a burden of proof in Atkins

25

cases or extending Cooper to claims of intellectual disability. See Hill v. Humphrey, 662

26

F.3d 1335, 1349 (11th Cir. 2011) (noting “the absence of any Supreme Court burden of

27
28

proof holding in mental retardation execution cases”). Therefore, the decision of the state
- 54 -

1
2

court to impose a clear and convincing standard is neither contrary to nor an unreasonable

3

application of clearly established federal law. 28 U.S.C. § 2254(d)(1). Apelt is not

4

entitled to relief on Claim 27.

5

CONCLUSION

6
7

For the reasons set forth above, Apelt is not entitled to relief on Claims 1-B, 1-D,

8

11, 14, 15, 17, 26 and 27. The decisions of the state court rejecting these claims were not

9
10
11

contrary to or an unreasonable application of clearly established federal law, or based on
an unreasonable determination of the facts.24 28 U.S.C. § 2254(d).

12

With respect to Claim 12, Apelt has established the state court rejection of this

13

claim was unreasonable. The parties will be directed to submit supplemental briefs on

14
15

whether an evidentiary hearing is needed.
CERTIFICATE OF APPEALABILITY

16
17
18

Although this is not a final order in these proceedings, the Court has endeavored to
determine, if judgment is ultimately entered against Apelt, whether a certificate of

19
20
21
22

appealability (COA) should be granted on the issues addressed herein.
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when a petitioner “has
made a substantial showing of the denial of a constitutional right.” This showing can be

23
24
25

established by demonstrating that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner” or that

26
27
28

24

Because Claim 1-D was never presented in state court, it appears the standard of
review is different. However, Claim 1-D fails on the merits regardless of the standard.
See note 9.
- 55 -

1
2
3

the issues were “adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

4
5

The Court finds that reasonable jurists could debate its resolution of Claims 11 and
26. For the reasons stated in this order, the Court finds that reasonable jurists could not

6
7

debate its resolution of the remaining claims.

8

Accordingly,

9

IT IS HEREBY ORDERED denying Claims 1-B, 1-D, 11, 14, 15, 17, 26, and

10
11

27.

12

IT IS FURTHER ORDERED no later than September 18, 2015, each side shall

13

submit a brief of no more than fifteen pages addressing whether an evidentiary hearing on

14
15

Claim 12 is needed and, if so, the proposed scope of the evidentiary hearing. No later

16

than September 28, 2015, each side shall submit responsive briefs of no more than ten

17

pages. No replies are permitted absent further order.

18

Dated this 1st day of September, 2015.

19
20
21
22
Honorable Roslyn O. Silver
Senior United States District Judge

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25
26
27
28
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