Cook v. Ryan

Filing 5

ORDER, Petitioner's 1 Petition for Writ of Habeas Corpus is dismissed; the Clerk shall enter judgment accordingly and terminate this case. Signed by Senior Judge Robert C Broomfield on 7/6/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Wayne Cook,

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Petitioner,

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v.

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Charles L. Ryan, et al.,
Respondents.

) No. CV-12-08110-PCT RCB
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) DEATH PENALTY CASE
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) ORDER DISMISSING PETITION
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Petitioner, a condemned prisoner whose execution is set for August 8, 2012, has filed

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a second federal habeas corpus petition pursuant to 28 U.S.C. § 2254 seeking relief from his

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capital sentence on the ground that pre-trial counsel failed to investigate or prepare a

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mitigation case. (Doc. 1 at 3.) For the reasons that follow, the petition is dismissed.

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BACKGROUND

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In 1988, a jury convicted Petitioner of two counts of first-degree murder for the brutal

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killing of two acquaintances in Lake Havasu City. Details of the crimes are set forth in the

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Arizona Supreme Court’s opinion upholding Petitioner’s convictions and sentences. See

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State v. Cook, 170 Ariz. 40, 45-46, 821 P.2d 731, 736-37 (1991). Shortly before trial,

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Petitioner waived counsel and represented himself.

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Following unsuccessful direct appeal and state post-conviction proceedings, Petitioner

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sought federal habeas relief under 28 U.S.C. § 2254. In an amended habeas petition filed on

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September 25, 1997, Petitioner asserted that he was denied the effective assistance of counsel

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when he was represented by counsel during the pre-trial period. (Doc. 18 at 39.) The

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entirety of the claim with respect to sentencing alleged that counsel had failed to “[d]evelop

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a plan for a mitigation hearing.” (Id. at 40.) The Court determined that Petitioner’s

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ineffectiveness claims were procedurally barred and ultimately denied relief on his remaining

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claims. On appeal, the Court of Appeals for the Ninth Circuit affirmed, and the Supreme

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Court denied certiorari. Cook v. Schriro, 538 F.3d 1000, 1011 (9th Cir. 2008), cert. denied,

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555 U.S. 1141 (2009).

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On June 5, 2012, Petitioner filed the instant habeas petition raising one

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claim—ineffective assistance of counsel for failing to investigate or prepare a mitigation

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case. The petition sets forth additional life history about Petitioner that was not developed

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prior to Petitioner invoking his right to self-representation. In addition, Petitioner has

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obtained new evaluations by mental health professionals who conclude that he suffers from

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post-traumatic stress disorder and impaired cognitive functioning. The petition asserts that

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pre-trial counsel failed to conduct a basic investigation of Petitioner’s social history, mental

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health, and history of drug abuse; failed to employ a mitigation investigator; and failed to

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consult with a mental health expert.

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DISCUSSION

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Pursuant to 28 U.S.C. § 2244(b)(1), a claim presented in a second or successive

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petition that was presented in a prior application shall be dismissed. Section 2244(b)(2)

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provides that a claim presented in a second or successive petition that was not presented in

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a prior petition must be dismissed unless the new claim satisfies certain criteria. Section

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2244(b)(3)(A) requires authorization from the court of appeals before a successive petition

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raising a new claim permitted under § 2244(b)(2) may be filed in a district court. See Burton

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v. Stewart, 549 U.S. 147,152-53 (2007) (observing that § 2244(b) established a stringent set

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of procedures a prisoner must follow before filing a second or successive federal habeas

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corpus petition challenging the same conviction).

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There is no dispute that the instant proceeding was initiated by the filing of a second-

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in-time federal habeas petition under § 2254 seeking to set aside the same judgment litigated
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in Petitioner’s first habeas proceeding. There is also no dispute that Petitioner has not sought

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or obtained permission from the court of appeals to file the petition in this Court. There is

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a significant question whether the “failure to investigate” claim raised in the second petition

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is the same as the “failure to develop a mitigation plan” claim raised in the initial petition.

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Regardless, the Court concludes that dismissal is required.

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Petitioner correctly notes that the Supreme Court “has declined to interpret ‘second

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or successive’ as referring to all § 2254 applications filed second or successively in time,

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even when the later filings address a state-court judgment already challenged in a prior

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§ 2254 application.” Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see, e.g., Slack v.

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McDaniel, 529 U.S. 473, 485-86 (2000) (concluding that a petition filed after district court

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dismissed an initial petition for failure to exhaust state remedies is not “second or successive”

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petition); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (holding that a second-

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in-time petition is not “second or successive” when it raises a claim previously dismissed as

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premature). Based on these cases, Petitioner argues that his second-in-time petition is not

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successive because the Supreme Court in Martinez v. Ryan, 132 S. Ct. 1309 (2012),

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announced an equitable rule that was not available during Petitioner’s initial habeas

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proceeding but which provides cause for the procedural default of the ineffectiveness claim

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raised therein. In Petitioner’s view, the claim “has only now become ripe because only now

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may he establish cause [based on Martinez] to overcome the procedural bar.” (Doc. 1 at 37.)

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The Court declines to accept this novel proposition. See Adams v. Thaler, 679 F.3d 312, 322

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(5th Cir. 2012) (rejecting argument that second-in-time petition not “successive” because

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Martinez removed technical barrier to federal habeas review); Lopez v. Ryan, 678 F.3d 1131,

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1139 n.2 (9th Cir.), cert. denied, 2012 WL 2192662 (U.S. June 26, 2012) (finding no basis

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for certificate of appealability on assertion that Rule 60(b) motion based on Martinez should

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be treated as first-in-time habeas petition).

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Petitioner asserts that the claim raised in his second petition is “exactly the same” as

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the claim raised in his initial habeas petition. If so, then outright dismissal is required under

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28 U.S.C. § 2254(b)(1). See Gonzales v. Crosby, 545 U.S. 524, 530 (2005); West v. Ryan,
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652 F.3d 1048, 1053 (9th Cir. 2011). If, as it appears to this Court, the claim raised in the

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second petition is a substantially different claim than that raised in the initial petition,

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Petitioner must seek authorization from the Ninth Circuit before the petition may be

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considered here. Under either scenario, dismissal is required.

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Based on the foregoing,

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IT IS ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is

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DISMISSED. The Clerk of Court shall enter judgment accordingly and terminate this case.

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DATED this 6th day of July, 2012.

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