Lee, et al v. Schriro, et al

Filing 140

ORDER that Lee's Motion for Reconsideration 138 is DENIED. The record will be expanded to include Ex. 1. Signed by Judge John J Tuchi on 5/01/2019. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darrel Easton Lee,

No. CV-04-0039-PHX-JTT
Petitioner,

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v.

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Charles L. Ryan, et al.,

DEATH PENALTY CASE

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ORDER

Respondents.

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Before the Court is Petitioner Darrel Lee’s Motion for Reconsideration. (Doc. 39.)

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Pursuant to Local Rule 7.2(g) of the Local Rules of Civil Procedure, Lee asks the Court to

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reconsider its order denying reconsideration of Claims 9(A) and 9(D) of Lee’s habeas

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petition. He also asks the Court to expand the record to include a new expert report.

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On remand from the Ninth Circuit Court of Appeals, this court addressed, in the

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light of intervening law, three claims of ineffective assistance of trial counsel, including

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Claims 9(A) and 9(D). Applying Martinez v. Ryan, 566 U.S. 1 (2012), and Dickens v. Ryan,

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740 F.3d 1302 (9th Cir. 2014) (en banc), the Court found that Claims 9(A) and 9(D), which

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had been raised and denied on the merits in state court, were not fundamentally altered,

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and therefore rendered unexhausted, by new evidence presented in these habeas

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proceedings. (Doc. 138.)

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Motions for reconsideration are disfavored and should be denied “absent a showing

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of manifest error or of new facts or legal authority.” L. R. Civ. P. 7.2(g). A motion

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for reconsideration may not repeat arguments made in support of or in opposition to the

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motion that resulted in the order for which the party seeks reconsideration. Id. Lee contends

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the Court misapplied Dickens and, with respect to Claim 9(A), underestimated the import

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of the new evidence. He also presents new evidence in support of Claim 9(D). The new

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evidence is a declaration dated April 22, 2019, by Dr. John Edens, a psychologist. (Doc.

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138, Ex. 1.)
DISCUSSION

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For claims that were adjudicated on the merits in state court, like Claims 9(A) and

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9(D), federal habeas review “is limited to the record that was before the state court.” Cullen

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v. Pinholster, 563 U.S. 170, 181 (2011). In Dickens, the Ninth Circuit ruled that Pinholster

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does not apply to a claim that has been “fundamentally altered” by new evidence because

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such a claim was not adjudicated on the merits in state court. 740 F.3d at 1320. The claim

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is therefore unexhausted, defaulted, and subject to analysis under Martinez.1 Id. at 1318.

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Under Dickens, a claim has not been exhausted in state court if the new evidence

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fundamentally alters the legal claim considered by the state court or places the case in a

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significantly different and stronger evidentiary posture than it was when the state court

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considered it. Id. at 1318–19.

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A claim of ineffective assistance of counsel is not fundamentally altered by new

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factual allegations related to the specific claim raised in state court. See Moormann v.

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Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005) (“[T]his rule allows a petitioner who

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presented a particular claim, for example that counsel was ineffective in presenting

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humanizing testimony at sentencing, to develop additional facts supporting that particular

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claim.”); see also Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013); Escamilla v.

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Stephens, 749 F.3d 380, 395 (5th Cir. 2014).

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Claim 9(A):

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In Claim 9(A), Lee alleged that trial counsel Politi performed ineffectively by

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presenting an alibi defense he knew was false. The Court denied the claim on the merits.

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Under Martinez, the ineffective assistance of post-conviction counsel can excuse
the default of a claim of ineffective assistance of trial counsel. 566 U.S. at 11–14.
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(Doc. 93 at 33–48.) On remand, Lee argued that new evidence rendered the claim

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fundamentally altered, unexhausted, and subject to review under Martinez. (Doc. 120 at

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16.) The new evidence included the transcript of an interview between the prosecutor,

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Suskin, and Lee’s father. During the interview Suskin stated that Lee had admitted to him

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that he was present when the crimes were committed. The new evidence also included a

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statement from Suskin that he had no independent recollection of Lee telling him and Politi

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that he was present at the crime but in light of the interview transcript, “it is more likely

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than not that Darrel Lee informed me and Mr. Politi that he was present when the homicide

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was committed.” According to Lee, this evidence shows that Politi knew he was presenting

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a false alibi defense.

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The Court found that the new evidence “provide[d] additional circumstantial

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support for [Lee’s] allegation that he told Politi of his involvement in the crimes. The

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allegation itself, while somewhat stronger, is not altered at all, nor is its posture

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significantly different.” (Doc. 138 at 9 (emphasis added).) The Court did not, as Lee asserts,

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“violate[] the second prong of the test of Dickens” but instead found that adding the new

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evidence to the claim heard by the state court did not place the claim in a significantly

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different posture under the analysis provided in Dickens. Lee’s disagreement with that

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assessment is not grounds for reconsideration under L.R. Civ. P. 7.2(g).

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Claim 9(D):

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As relevant here, in Claim 9(D) Lee alleged that counsel performed ineffectively at

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sentencing by failing to investigate and present available mitigating evidence, including

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evidence that Lee was suffering from Cocaine Withdrawal Syndrome, as opposed to

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cocaine intoxication, when he and his codefendant kidnapped the victim. The Court

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rejected Claim 9(D) on the merits. (Doc. 93 at 48–72.)

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In his motion for reconsideration, Lee asserts that the Court failed to “address[] how

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significantly different and stronger Lee’s IAC claim became with new, uncontroverted

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evidence that Lee suffered from Cocaine Withdrawal Syndrome.” (Doc. 139 at 5.) This

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simply restates the argument made in Lee’s supplemental Martinez brief and rejected by

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the Court.

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In its order denying reconsideration, the Court discussed the fact that the state court

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was presented with evidence that the purpose of the kidnapping was to get money to buy

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more cocaine. (Doc. 138 at 12.) During the PCR evidentiary hearing Dr. Morenz testified

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about Lee’s condition at the time of the crime, describing him as “strung out” as the result

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of a “multi-day binge of using cocaine.” (RT 5/21/02 at 12.) Dr. Morenz elaborated:

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[I] think that the longer Mr. Lee was under the influence of these drugs, the

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more sleep deprived he was, his thinking became much more fuzzy. He
wasn’t clearly thinking about what he was going to do next.

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...

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His sole purpose in life at that point was to use the cocaine. Cocaine is
powerfully psychologically addictive; and it’s a very difficult sort of
addiction to resist; and people can lose themselves in the drug, and that’s
exactly what Mr. Lee did.

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(Id. at 13.) Like evidence of Cocaine Withdrawal Syndrome, this evidence, presented in

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support of the A.R.S. § 13-703(G)(1) mitigating factor, “explained Lee’s conduct without

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excusing it.” (Doc. 139 at 6.)

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Adding the label Cocaine Withdrawal Syndrome to the evidence that Lee, having

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run out of cocaine in the midst of a cocaine binge, desperately wanted more cocaine and

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was willing to commit serious crimes to obtain it, does not fundamentally alter the claim

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or place it in a significantly different evidentiary posture. Again, with respect to Lee’s drug

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use and psychological condition, Claim 9(D) was never a “naked Strickland claim.”

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Dickens, 740 F.3d at 1319. The record before the PCR court contained specific diagnoses

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from half a dozen mental health experts. If offering new diagnoses to replace the ones that

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failed in state court were sufficient to fundamentally alter a claim or place it in a

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significantly stronger posture, it would be impossible under Dickens to exhaust a claim of

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ineffective assistance of counsel at sentencing.

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....

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....

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Expansion of the record:

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Lee asks the Court to expand the record to include Dr. Edens’ report.2 The report

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challenges, on ethical and scientific grounds, the diagnosis reached by Dr. Bayless that Lee

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suffers from anti-social personality disorder. (Doc. 138 at 11; Ex. 1.) The Court will grant

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Lee’s request to expand the record.

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Dr. Edens’ report does not affect the Court’s analysis of remanded Claim 9(D). Dr.

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Edens’ opinions are directly related to the claim raised in state court. They do not

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fundamentally alter the claim or place in a different posture the ineffective assistance of

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counsel claim rejected by the PCR court. The report simply offers evidentiary support for

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the claim already raised. See Moormann, 426 F.3d at 1056; Escamilla, 749 F.3d at 395.
CONCLUSION

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The new evidence offered by Lee is directly related to the legal and factual bases of

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the ineffective assistance of counsel claim raised in state court. It does not fundamentally

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alter Claims 9(A) or 9(D) or place the claims in a significantly different and stronger

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evidentiary posture.

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Based on the foregoing,

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IT IS ORDERED that Lee’s Motion for Reconsideration (Doc. 138) is DENIED.

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The record will be expanded to include Ex. 1.

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Dated this 1st day of May, 2019.

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Honorable John J. Tuchi
United States District Judge

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The report is offered as a substitute for the report prepared Dr. Benedict and
attached to Lee’s reply brief. (Doc. 128-1, Ex. 2; see Doc. 137.)
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