Smith, et al v. Ryan, et al

Filing 281

ORDER, Petitioner's Atkins-related claims are without merit. Therefore, Petitioner's Amendments to Petition for Habeas Corpus (Doc. 258 ) are denied.The Clerk of Court shall enter judgment accordingly. It is FURTHER ORDERED denying a certificate of appealability on Petitioner's Atkins-related claims. Signed by Judge Cindy K Jorgenson on 11/29/12. (See attached PDF for complete information.) (KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Douglas Smith, Petitioner, 10 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) No. CV-87-234-TUC-CKJ ) ) DEATH PENALTY CASE ) ) ) ) ORDER ) ) ) ) ) 15 16 This matter is before the Court on remand from the Ninth Circuit Court of Appeals 17 “for the limited purpose of considering Smith’s Atkins claim.” (Doc. 254 at 2.) For the 18 reasons set forth herein, the Court determines that Petitioner is not entitled to habeas relief. 19 BACKGROUND 20 The lengthy factual and procedural history of this case was set forth in a previous 21 order and will not be repeated here except as relevant to Petitioner’s remaining claims. (Doc. 22 239 at 1-6.) 23 After numerous and varied appellate proceedings, the Ninth Circuit suspended 24 Petitioner’s federal habeas appeal and directed the state court to determine whether 25 Petitioner’s alleged mental retardation rendered him ineligible for the death penalty under 26 Atkins v. Virginia, 536 U.S. 304 (2002). Smith v. Schriro, No. 96-99025 (9th Cir. Dec. 12, 27 2005). After extensive discovery and an evidentiary hearing, Pima County Superior Court 28 Judge Jan Kearney ruled in March 2008 that Petitioner had failed to meet his burden of 1 establishing mental retardation under A.R.S. § 13-703.02. The Arizona Court of Appeals 2 affirmed in an unpublished memorandum decision, Smith v. Kearney, No. 2CA-SA-2008- 3 0019, 2008 WL 2721155 (Ariz. App. Jul. 11, 2008), and the Arizona Supreme Court 4 summarily denied discretionary review. Thereafter, the Ninth Circuit remanded the matter 5 to this Court for an evidentiary hearing on whether Petitioner had cause and prejudice to 6 overcome the procedural default of a claim alleging ineffective assistance of sentencing 7 counsel. Smith v. Schriro, No. 96-99025 (9th Cir. Feb. 26, 2009.) The parties engaged in 8 discovery and filed supplemental briefs. Following a hearing in May 2010, Chief United 9 States District Court Judge John M. Roll found that Petitioner had failed to establish cause. 10 (Doc. 239.) 11 In September 2010, the Ninth Circuit remanded again, this time for the limited 12 purpose of considering Petitioner’s Atkins claim. Smith v. Schriro, No. 96-99025 (9th Cir. 13 Sept. 10, 2010). The matter was reassigned to the undersigned judge in February 2011, and 14 the Court granted Petitioner’s motion to amend his habeas petition to add several new claims 15 arising from pursuit of state court relief under Atkins. (Doc. 269.) Petitioner filed a 16 supplemental merits brief and Respondents filed a response (docs. 272, 274); Petitioner did 17 not file a reply. Subsequently, the parties filed additional supplemental briefs regarding the 18 effect of Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Maples v. Thomas, 132 S. Ct. 912 19 (2012), to the cause issue decided by Judge Roll and whether this Court has jurisdiction to 20 reconsider that issue. (Docs. 278, 279.) 21 DISCUSSION 22 In Atkins, the Court held that the Eighth Amendment prohibits the execution of 23 individuals who are “so impaired as to fall within the range of mentally retarded offenders 24 about whom there is a national consensus.” 538 U.S. at 317. The Court refrained from 25 mandating specific procedures for determining retardation, instead leaving “to the States the 26 task of developing appropriate ways to enforce the constitutional restriction upon their 27 execution of sentences.” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986) 28 -2- 1 (brackets and internal quotation marks omitted)). 2 In Arizona, a defendant must prove mental retardation to a trial court by clear and 3 convincing evidence. See A.R.S. § 13-703.02(G) (West Supp. 2007).1 Mental retardation 4 is defined as “a mental deficit that involves significantly subaverage general intellectual 5 functioning, existing concurrently with significant impairment in adaptive behavior, where 6 the onset of the foregoing conditions occurred before the defendant reached the age of 7 eighteen.” A.R.S. § 13-703.02(K)(3) (West Supp. 2007). “Significantly subaverage general 8 intellectual functioning” means a full scale intelligence quotient (IQ) of 70 or lower. 9 A.R.S. § 13-703.02(K)(5) (West Supp. 2007). An IQ test score of 65 or lower establishes 10 a rebuttable presumption of retardation. A.R.S. § 13-703.02(G) (West Supp. 2007); State v. 11 Arellano, 143 P.3d 1015, 1019 (Ariz. 2006). “Adaptive behavior” means the effectiveness 12 to which an individual meets the standards of personal independence and social responsibility 13 expected of that person’s age and cultural group. A.R.S. § 13-703.02(K)(1) (West Supp. 14 2007). To establish mental retardation, a defendant must prove all three elements—the 15 intellectual functioning prong, the adaptive behavior prong, and onset before the age of 16 eighteen. See State v. Roque, 141 P.3d 368, 402 (Ariz. 2006). 17 I. Atkins Proceedings 18 Following remand from the Ninth Circuit, intellectual functioning testing was 19 conducted by Dr. Sergio Martinez, a psychologist, and Dr. Thomas Thompson, a 20 21 22 23 24 25 26 27 28 1 At the time of Petitioner’s state court Atkins hearing, the statutory scheme for determining mental retardation was set forth in A.R.S. § 13-703.02. That statute was transferred and renumbered to § 13-753 in 2009. See Ariz. Sess. Laws 2008, Ch. 301, § 26. Subsequently, the statute was amended to substitute the term “intellectual disability” for “mental retardation.” See Ariz. Sess. Laws 2011, Ch. 89, § 5. For consistency with references to the state court’s ruling in this case, the Court will cite to the original statute. It should also be noted that Arizona’s statutory scheme provides for mental retardation screening prior to trial. However, for prisoners such as Petitioner who were tried prior to adoption of the statute, the Arizona Supreme Court has directed trial courts to follow the procedures established in § 13-703.02 insofar as is practicable for a post-trial case. State v. Grell, 66 P.3d 1234, 1241 (Ariz. 2003). -3- 1 neuropsychologist. Dr. Martinez determined that Petitioner had an IQ score of 91 on the 2 Wechsler Adult Intelligence Scale-III and a score of 89 on the Slosson Intelligence 3 Test–Revised, which is within the low-average to average range of intellectual ability. Dr. 4 Thompson, using the Reynolds Intellectual Assessment Scale, determined that Petitioner had 5 an IQ score of 87, which Dr. Martinez adjusted to 93 due to scoring errors later 6 acknowledged by Dr. Thompson. 7 quantitative electroencephalography (QEEG) testing at Dr. Thompson’s suggestion and 8 opined that Petitioner has a lack of connectivity in the left hemisphere of his brain, which 9 may be related to a language disorder, and mild dysfunction of the right frontal lobe region, 10 Dr. Albert Johnstone, a psychologist, undertook which may correlate to impulsivity and anxiety. 11 The state court held a two-day hearing in late 2007, addressing both Petitioner’s 12 Atkins claim and the State’s motion to preclude evidence of the QEEG test results. Four 13 experts testified, and the Court admitted numerous records as well as deposition transcripts 14 of 12 lay witnesses. 15 QEEG Testing 16 Dr. Johnstone testified concerning QEEG testing, which involves measuring brain 17 electrical activity from numerous locations on the scalp. He explained that QEEG takes these 18 signals and further analyzes them to detect patterns of frequency. These patterns are then 19 compared, to check for statistically significant deviations, to a commercially-available 20 database of frequencies obtained from a group of individuals who have no symptoms of 21 neurological psychiatric disease and are described as “normal.” In rebuttal, the State 22 solicited testimony from Dr. Marc Nuwer, head of the UCLA Medical Center’s clinical 23 neurophysiology department. According to Dr. Nuwer, the Academy of Neurology and the 24 American Clinical Neurophysiology Society do not consider QEEG brain mapping to be a 25 useful technique for assessing neurobehavioral or psychological issues and recommend 26 against its use in the courtroom setting. He described interpretation and database problems, 27 noting that QEEG testing flags as statistically abnormal a lot of things in normal individuals 28 -4- 1 that are not attributable to injury or disease. In his opinion, neither QEEG nor MRI and CT 2 scans would be reliable tests for determining the presence of mental retardation. With 3 respect to the QEEG testing in this case specifically, Dr. Nuwer opined that Dr. Johnstone’s 4 findings concerning Petitioner’s left hemisphere and right frontal lobe lacked clinical 5 significance and did not provide evidence of either mental retardation or brain damage. 6 Dr. Thomas Thompson 7 Dr. Thompson testified that there is a high probability Petitioner was retarded at the 8 time of the offense in 1980, but that his functioning improved as a result of a structured 9 prison life and appropriate medication. He concluded that Petitioner was not retarded as a 10 result of a head injury or genetic disorder, but rather due to a dysfunctional environment and 11 resulting frontal lobe dysfunction. Dr. Thompson based his conclusion on the following data 12 points: 13 Otis Intelligence Scale 14 School records appended to the presentence report (PSR) indicate that at age 15, 15 Petitioner twice was administered the Otis Intelligence Scale, scoring 62 and then 71. Dr. 16 Thompson testified that the Otis test was developed in 1917 as part of intelligence testing 17 created for the Army, had not been normed against various populations, and would not be 18 an appropriate tool for measuring intelligence today. He also acknowledged that the raw data 19 from Petitioner’s Otis testing was not available, and that there was no way of knowing who 20 administered the test, whether appropriate protocols were followed, how Petitioner behaved 21 during the testing, and whether the test was administered individually or as a group, all 22 information that would assist in determining validity of the scores. 23 Academic Performance 24 School records also document low Stanford Achievement scores and poor grades. In 25 his report, Dr. Thompson noted that Petitioner’s language score on the Stanford ranged from 26 the 2nd to 5th percentiles and his arithmetic score was at the 2nd percentile. This means, 27 according to Dr. Thompson, that at age 15 Petitioner scored five to seven years below his age 28 -5- 1 and grade level. Before dropping out at age 16, Petitioner received primarily D’s and F’s in 2 his academic courses during his last two years of school. 3 Developmental History 4 There was no dispute that Petitioner was raised in an extremely dysfunctional family 5 and was subjected to neglect and severe emotional and physical abuse. Dr. Thompson 6 testified that this chronic stressful environment, combined with poor nutrition, extracted a 7 toll on Petitioner in terms of cognitive functioning and impulse control. He explained that 8 long-term exposure to stress hormones harms the brain’s frontal lobes and leaves an 9 individual susceptible to chronic depressive disorders as well as disorders in the executive 10 functioning of the brain. In his view, instability is indicative of frontal lobe dysfunction, 11 which is why Petitioner frequently changed jobs and residences and had numerous failed 12 relationships. 13 Although Dr. Thompson opined that Petitioner would always have lower functioning, 14 he explained that Petitioner improved while in prison because the structure and anti- 15 depression medications provided there act as a “brace” for Petitioner’s frontal lobe. In 16 support, he cited the depositions of Ronald Labrecque, a prison employee who witnessed 17 extensive improvement in Petitioner’s work capabilities over time, and Martha Hight, 18 Petitioner’s aunt by marriage, who had a mentally-retarded sister with whom she compared 19 Petitioner. Labrecque said that Petitioner was not good at following written instructions (a 20 likely manifestation of his learning disabilities), but caught on quickly once he was told what 21 to do. Petitioner was an adult when Hight first met him, but she concluded that he lacked the 22 ability to advance because he was slow and had difficulty communicating in complete 23 sentences. However, she observed that his communication skills improved after he had been 24 in prison. 25 Presentence Report 26 In addition to school records, the PSR included various hospital records indicating 27 anxiety attacks and suicidal ideation, much of it stemming from marital problems. During 28 -6- 1 one hospitalization in 1970, Petitioner was diagnosed with an antisocial personality disorder. 2 None of the records suggest that Petitioner is mentally retarded. 3 The PSR also included two handwritten statements from Petitioner. The first, 4 addressed to the trial judge, concerned the offense and surrounding circumstances, claiming 5 Petitioner was unaware co-defendant Joe Lambright intended to kill the victim. The second 6 identified Petitioner’s immediate family members and described his upbringing. 7 In a section titled “Physical and Mental Health,” the PSR writer noted that Petitioner’s 8 appearance and mannerisms were generally appropriate, although he appeared to be 9 depressed and refused to submit to a presentencing psychological evaluation. With regard 10 to education, the PSR writer wrote that intelligence testing in the eighth grade indicated 11 Petitioner is borderline retarded but educable. Under the heading “Evaluative Summary,” 12 the PSR writer described Petitioner as a person with little or no self-esteem, who suffered 13 from bouts of depression and occasional suicidal thoughts. “His borderline mentality 14 probably makes him an easy person to manipulate and somewhat of a follower in social 15 situations. . . . The defendant, more than likely, responds to external, social stimuli on a very 16 concrete level, living basically from day to day and acting on impulse to a great degree.” 17 (SCR Vol. 9 at 2466.)2 In Dr. Thompson’s view, the PSR writer’s observations are 18 consistent with frontal lobe dysfunction and mental retardation. 19 Dr. Sergio Martinez 20 Dr. Martinez testified that there is a high degree of probability Petitioner was not 21 mentally retarded at the time of the offense. In addition to his testing, Dr. Martinez based 22 his opinion on unreliability of the Otis test scores and evidence of Petitioner’s adaptive skills. 23 From his review of records, Dr. Martinez concluded that Petitioner began to lead an 24 independent lifestyle around age 16 and was able to develop some social skills, dating 25 women and working steadily. He also noted that following the offense but before his arrest, 26 27 28 2 “SCR” refers to the sequentially-paginated state court record provided to this Court by Respondents. -7- 1 Petitioner married and was able to support his wife and her three children. 2 Dr. Martinez also referenced reports from two experts who conducted mental status 3 examinations of Petitioner prior to trial, opining that they corroborated his own intellectual 4 functioning testing. Both experts found Petitioner competent for trial. Dr. John LaWall 5 noted that Petitioner was neatly dressed, groomed, and cooperative, but somewhat depressed, 6 with somewhat blunt affect. He found no evidence of any disturbance in the form or content 7 of Petitioner’s thinking. Dr. LaWall indicated that Petitioner probably functions in the 8 average range of intelligence but suffers from a personality disorder with passive-aggressive 9 and antisocial features. Dr. Martin Levy observed that Petitioner was neatly dressed and 10 displayed logical, coherent thought. He noted Petitioner’s history of depression and suicide 11 attempts and complaints about memory problems, but stated in his report that “no evidence 12 could be obtained for organic brain syndrome or seizure disorder.” (SCR Vol. 9 at 2426.) 13 In Dr. Martinez’s view, these pretrial evaluations contradict the PSR writer’s description of 14 Petitioner as being “borderline.” He further noted that probation officers who write PSR 15 reports lack the expertise of psychiatrists and psychologists for assessing intellectual 16 dysfunction. 17 Dr. Martinez additionally testified that intellectual functioning may improve if an 18 individual is given appropriate educational and training programs but that a 30-point increase 19 in IQ is highly unlikely. Moreover, in his view, prison is not the type of “enriching 20 environment” that would improve intellectual functioning, but rather is a structured, highly 21 supervised environment for which adaptation does not require a lot of intellectual ability. 22 Lay Witnesses 23 Deposition transcripts admitted during the state court hearing provided additional 24 information about Petitioner’s upbringing and adult life. Petitioner’s half-sister, Martha Gau, 25 described some of the abuse inflicted on Petitioner and said he suffered a childhood illness 26 that was reported as polio. Elaine Long, a former neighbor, described Petitioner as socially 27 inept as a child, stating that he did not know how to interact or carry on normal conversation 28 -8- 1 with other children. In addition to comparing Petitioner to her mentally retarded sister, 2 Martha Hight described Petitioner’s stepfather as cruel and physically abusive and his mother 3 as lacking love and compassion. She also said she and her husband used to buy Petitioner 4 clothes and cigarettes and occasionally cook for him. Petitioner’s sister, Melva Jane Box, 5 reported that Petitioner was held back frequently in elementary school, was enrolled in 6 special education due to his learning disabilities, and was incapable of understanding the 7 rules of simple children’s games. She said their mother believed Petitioner’s difficulties 8 stemmed from brain damage caused by polio. Charles Caperton, a former neighbor, 9 confirmed that Petitioner was in special education classes in school. Betty Ruth Knight, 10 another neighbor, said that Petitioner always looked lost as a child. 11 Gerald Lambright, a cousin of Petitioner’s co-defendant, described Petitioner as 12 immature, shy, and incapable of thinking for himself. He said Petitioner would not initiate 13 but instead do whatever Joe Lambright told him to do. Joe Lambright’s wife, Sylvia Scott, 14 similarly described Petitioner as a follower. 15 Sidney LeBlanc lived and worked with Petitioner in the 1970s. Similar to the 16 testimony of Ronald Labrecque, LeBlanc said Petitioner had trouble reading and filling out 17 job applications, but could do hands-on mechanical tasks and was not ignorant. He also said 18 they changed jobs and moved frequently to be “footloose and fancy-free” and would hang 19 out with Joe Lambright and others to party. He also described Petitioner as a follower and 20 Joe Lambright as the “leader” of their group. Charles McCarver also lived and worked with 21 Petitioner in the 1970s. According to McCarver, Petitioner acted normal, went to movies and 22 bars with others, and had good hygiene. 23 Beth Lewis lived on the same street as Petitioner when they were children and later 24 married him, becoming his fifth wife, shortly before his arrest. She recalls Petitioner as 25 being withdrawn and standoffish in his youth. After a chance meeting later in life, they 26 began a relationship, which initially included threats and an alleged attempted rape when she 27 tried to break off the relationship. Nonetheless, Lewis subsequently married Petitioner, and 28 -9- 1 he became a father-figure to her three children, playing games and teaching them table 2 manners. She also reported that during their brief marriage Petitioner had a trucking-related 3 job and also performed part-time maintenance work at their apartment complex. 4 State Court Rulings 5 The state trial court issued an extensive 19-page ruling addressing Petitioner’s Atkins 6 claim. After summarizing the evidence, the court concluded that Petitioner had failed to meet 7 his burden of showing mental retardation at the time of the offense, under either the 8 applicable clear-and-convincing standard or the lesser preponderance of the evidence: 9 “Although Defendant’s dysfunctional family and troubled early life undoubtedly affected his 10 circumstances in an adverse way, and while it is likely Defendant has suffered from clinically 11 cognizable conditions probably including a personality disorder, the circumstances described 12 at the hearing do not point to mental retardation with any degree of certainty.” (SCR at 13 2613.) 14 intellectual functioning” at the time of the offense and no evidence of “significant 15 impairment in adaptive behavior,” despite Petitioner’s “unorthodox and unstable” pre-arrest 16 life. “In the absence of adequate information concerning the early Otis IQ tests, and in view 17 of the alternative explanations for his early school and social deficits, Defendant failed to 18 show the onset of mental retardation before the age of 18.” (Id. at 2614.) The court found insufficient evidence of “significantly subaverage general 19 In reaching these conclusions, the court made the following observations: 20 • Concerning the 1964 Otis tests, which the court found was “outmoded” at the time administered to Petitioner, “[t]here is no evidence concerning the qualifications of the persons administering the tests, whether an appropriate protocol was followed, the specific circumstances of Defendant at the times of the tests, or any of the other information required to determine the validity of these school record entries.” The court also found no evidence to explain how the 1964 test results could be extrapolated to the time of the offense and determined they should be given little weight. • Lay testimony concerning Petitioner’s life in the 1970s showed that “he was a full participant in his adult life” before the offense, having worked as a mechanic, truck driver, and cable installer, among other occupations. Although he switched jobs frequently, “he was consistently employed.” • Petitioner had difficulty maintaining relationships with women, but “this fact can be explained as arising from his loveless childhood just as well as it can 21 22 23 24 25 26 27 28 - 10 - be viewed as an indicator of the limitations of mental retardation.” In addition, Petitioner’s last marriage “showed promise of being quite different” from his previous relationships, and Petitioner worked and supported his new wife’s three children. 1 2 3 • The PSR writer’s reference to Petitioner’s “borderline mentality” is as likely based on the 1964 Otis IQ score as on an analysis of Petitioner’s history and characteristics. In addition, the “experience level of this probation officer is unknown, and there was no indication that he had training as a psychologist or other mental health professional that would provide the expertise required for any diagnostic observations.” • Although they contain spelling and grammatical errors, Petitioner’s handwritten statements appended to the PSR were “lengthy, neatly written, logical, detailed, structured and coherent.” 4 5 6 7 8 9 (Id. at 2602-07.) 10 With regard to Dr. Thompson, the court found that his opinion was undermined by 11 three factors: (1) a definition of mental retardation inconsistent with Arizona law; (2) “over- 12 reliance on indicators which, when viewed in context, do not support the weight he places 13 on them;” and (3) a failure to consider other important evidence. (Id. at 2610.) The court 14 observed that Dr. Thompson “appears to view mental retardation as a fluid condition 15 responsive to any number of changes in a patient’s environment, nutrition, and physical, 16 mental and emotional health” and that he believed Petitioner’s low Otis test scores, low 17 grades, lack of social skills, and other deficits to be indicators of mental retardation. (Id. at 18 2610-11.) The court then noted the State’s position that these difficulties were caused by 19 Petitioner’s dysfunctional background and other mental health problems, not by mental 20 retardation, and concluded that the State’s view “is more consistent with the definition of 21 mental retardation provided by Arizona law.” (Id. at 2611.) 22 The court criticized Dr. Thompson’s reliance on the 1964 Otis tests, the PSR writer’s 23 reference to Petitioner’s “borderline functioning,” and Petitioner’s unstable lifestyle, noting 24 the inadequacies of the early IQ tests and the PSR writer’s comments. The court further 25 found unjustified Dr. Thompson’s giving more weight to the PSR writer than the two experts 26 who examined Petitioner prior to trial, neither of whom noted any intellectual functioning 27 difficulties. The court observed that although Dr. Thompson attributed Petitioner’s unstable 28 - 11 - 1 lifestyle to mental retardation, he also acknowledged that Petitioner “seemed to have some 2 qualitative independent living skills.” 3 acknowledged that Petitioner’s personality disorder “included features described as 4 ‘inadequate and immature,’ and that this condition included anxiety and depression which 5 could display the impulsivity causing the job changes and relationship issues characterizing 6 Defendant’s early adulthood.” (Id.) In the court’s view, there was an alternative explanation 7 for Petitioner’s unstable lifestyle: “the footloose life espoused by friends and acquaintances, 8 serious academic deficits from causes which may or may not include limitations on his 9 general intellectual functioning, and last but not least, drug and alcohol abuse.” (Id.) (Id. at 2612.) In addition, Dr. Thompson 10 The trial court also ruled that the QEEG testing conducted by Dr. Johnstone failed to 11 meet the Frye standard for admissibility because as used in this case it was not generally 12 accepted within the relevant scientific community. The court further noted QEEG testing is 13 used to show organic brain dysfunction, not to diagnose mental retardation. Moreover, the 14 court found that the results would have little relevance to the question of Petitioner’s mental 15 retardation twenty-five years earlier in light of Dr. Thompson’s theory that Petitioner’s 16 mental functioning underwent substantial improvement during his incarceration. 17 In its decision affirming the trial court, the Arizona Court of Appeals rejected 18 Petitioner’s claim that he had presented sufficient evidence of mental retardation. It observed 19 that the trial judge “carefully considered all of the evidence presented and exercised her 20 discretion in resolving conflicts in the evidence, in assessing the reliability of the test results 21 and credibility of witnesses, and in weighing the evidence.” Smith, 2008 WL 2721155, at 22 *3. It further found reasonable evidence in the record to support the trial court’s factual 23 findings and therefore declined to disturb the conclusion that Petitioner had failed to sustain 24 his burden of establishing mental retardation at the time of the offense. 25 II. Newly-Amended Claims 26 Because Petitioner filed his initial federal habeas petition prior to the effective date 27 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), pre-AEDPA 28 - 12 - 1 standards govern this Court’s consideration of Petitioner’s claims, even though they were 2 added through amendment after that date. See Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir. 3 2011) (holding that pre-AEDPA standards apply even if amended petition filed after 4 enactment of AEDPA). 5 Under pre-AEDPA law, this Court reviews de novo mixed questions of law and fact, 6 as well as pure questions of law. Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010) 7 (citing Williams v. Taylor, 529 U.S. 362, 400 (2000)). However, “State court factual findings 8 are entitled to a presumption of correctness, subject to eight exceptions enumerated in the 9 previous version of 28 U.S.C. § 2254(d).”3 Id. at 905-06 (internal quotation marks omitted). 10 This presumption is equally applicable to the state appellate court’s findings of fact. See, 11 e.g., Sumner v. Mata, 449 U.S. 539, 549 (1981). Before rejecting a state court’s factual 12 determination, a federal habeas court “must conclude that the state court’s findings lacked 13 14 3 These exceptions are: 15 16 17 18 19 20 21 22 23 24 25 26 (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless . . . the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record. 27 28 28 U.S.C. § 2254(d) (1994). - 13 - 1 even fair support in the record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983) (internal 2 quotation marks and alteration omitted); Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 3 2001) (en banc). Whether a defendant is mentally retarded is a question of fact. Walker v. 4 Kelly, 593 F.3d 319, 323 (4th Cir. 2010); Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 5 2006). 6 A. PET Scan Funding 7 Petitioner asserts that the state court’s denial of funding for a Positron Emission 8 Tomography (PET) scan to support his Atkins claim violated his right to due process under 9 Ake v. Oklahoma, 470 U.S. 68 (1985). 10 Background 11 Prior to the Atkins hearing and at the recommendation of Dr. Thompson, Petitioner 12 obtained from the state court funding for EEG, QEEG, and genetic testing to pursue his 13 mental retardation claim. After receiving the QEEG results and consulting with Dr. 14 Thompson, Petitioner relayed to the court during a preliminary hearing that his expert had 15 suggested additional imaging. The court summarily denied the request, stating that “we have 16 gone about as far as we can go down the testing road short of some really extraordinary 17 reason to do it.” (RT 7/13/07 at 29.) 18 Referring generally to the testimony of Drs. Nuwer, Johnstone, and Thompson, as 19 well as the State’s challenge to admissibility of the QEEG test results, Petitioner orally 20 renewed his request for a PET scan at the conclusion of the Atkins hearing. The court again 21 declined, noting that there was no “indication in the testimony that an examination like that 22 is necessary for our purposes today.” (RT 11/1/07 at 177.) The Arizona Court of Appeals 23 agreed and denied Petitioner’s Ake claim: 24 25 26 In Ake, the Supreme Court held an indigent criminal defendant is entitled to his own psychiatrist where insanity is a defense. 470 U.S. at 83. But the defendant is only entitled to funds when reasonably necessary for his defense. Id. at 77. Smith has not established his due process rights were violated in this context because he has not established a PET scan was reasonably necessary. 27 Thompson, Smith’s own expert, testified that a PET scan was not 28 - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 necessary to establish Smith had been mentally retarded at the time of the offense because he was confident the results would show Smith had frontal lobe damage. Thompson testified about other indicia that Smith had that condition. And he stated that, if he were simply treating Smith and this case was not “in a legal system, [probably a PET scan] . . . would be overkill.” He considered a person’s behavioral history more important and equally indicative of whether there existed such damage. Moreover, Smith has not demonstrated that a more concrete showing that he has suffered from frontal lobe damage could have affected the trial court’s ultimate conclusion. The trial court’s observation that the test was not “necessary for our purposes today,” coupled with its conclusion that Smith was not mentally retarded at the time of the offenses, suggests the court either (1) was satisfied that Smith suffered from frontal lobe damage but did not consider it sufficient evidence of mental retardation, or (2) would not have given the PET scan findings much, if any, credence in light of the other considerable evidence that Smith was not mentally retarded. Notably, any frontal lobe damage currently detectable on a PET scan would have to be considered in light of current intelligence tests showing Smith has near normal intelligence. Thus, while we do not dispute Thompson’s testimony that frontal lobe damage can be a cause of mental retardation, Smith has not demonstrated on the facts before us how a current PET scan would be useful in assessing the pivotal question presented in this case—whether his mental functioning was significantly more deficient thirty years ago than today. 13 Smith, 2008 WL 2721155, at *4-5 (alterations in original). 14 Analysis 15 In Ake, the Court held that an indigent defendant must be provided with “a competent 16 psychiatrist who will conduct an appropriate examination and assist in evaluation, 17 preparation, and presentation of the defense” when the defendant demonstrates that “his 18 sanity at the time of the offense is to be a significant factor at trial.” 470 U.S. at 83. 19 Petitioner contends that Ake requires the State to provide to an indigent defendant “the tools 20 and resources necessary to build an effective defense” and that the inadmissible QEEG 21 testing provided here failed to meet this standard. (Doc. 272 at 9.) Respondents counter that 22 Ake does not require funding for a specific type of diagnostic test and to hold otherwise 23 would create a “new rule” barred by Teague v. Lane, 489 U.S. 288 (1989). 24 Ake expressly limited its holding to the appointment of one psychiatrist and does not 25 guarantee access to a psychiatrist “who will reach only biased or favorable conclusions.” 26 Pawlyk v. Wood, 248 F.3d 815, 823 (9th Cir. 2001) (quoting Harris v. Vasquez, 949 F.2d 27 1497, 1516-17 (9th Cir. 1990)). “The right of the defendant is to have access to the 28 - 15 - 1 psychiatrist’s opinion, rather than to have access to a favorable opinion.” Id. at 824. 2 Additionally, the Ninth Circuit has observed that “[d]ue process does not require a state to 3 fund every technologically conceivable test.” Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir. 4 2011); see also Vickers v. Stewart, 144 F.3d 613, 615 (9th Cir. 1998) (noting open question 5 “whether the Constitution requires a State to provide an indigent defendant access to 6 diagnostic testing necessary to prepare an effective defense”) (quoting Vickers v. Arizona, 7 497 U.S. 1033, 1033 (1990) (Marshall, J., dissenting from denial of certiorari)). 8 Here, Petitioner was provided with his expert of choice—Dr. Thompson, a highly- 9 qualified neuropsychologist. He also received funding for the EEG, QEEG, and genetic 10 testing originally suggested by Dr. Thompson. Thus, this is not a case where the petitioner 11 was denied the assistance of a mental health expert or any diagnostic testing. Assuming that 12 Ake requires funding for diagnostic testing, the State’s obligation in this regard was satisfied 13 and Petitioner was not entitled to a PET scan simply because results of the QEEG testing, 14 which he requested, were later held inadmissible. 15 Moreover, Petitioner has not demonstrated that a PET scan was necessary to prepare 16 an effective defense. In neither the state court nor this Court has Petitioner explained how 17 a present-day PET scan would be determinative or relevant to his claim of mental retardation 18 at the time of the offense, especially given the concession that Petitioner’s intelligence is 19 currently within a near normal range of functioning. Further, Dr. Thompson testified that a 20 PET scan would be “overkill” and that he would not recommend one were he seeing 21 Petitioner in a clinical setting. (RT 11/1/07 at 26-27.) Because Dr. Thompson already 22 concluded from his own neuropsychological testing that Petitioner suffers from frontal lobe 23 dysfunction, he noted that a PET scan would simply confirm this diagnosis but probably 24 should be done because Petitioner’s case was dependent on “who can pile on the most 25 things.” (Id. at 27.) This falls far short of establishing necessity under Ake. 26 B. Right to Jury Trial 27 Petitioner asserts that he was entitled to a jury determination on mental retardation. 28 - 16 - 1 He acknowledges that the Arizona Supreme Court and other state and federal courts have 2 rejected the argument that mental retardation is an element of the offense which must be 3 proven to a jury pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. 4 See, e.g., Walker v. True, 399 F.3d 315, 326 (4th Cir. 2005); In re Johnson, 334 F.3d 403, 5 405 (5th Cir. 2003); State v. Grell, 135 P.3d 696, 706 (Ariz. 2006) (“Grell II”); Head v. Hill, 6 587 S.E.2d 613, 619 (Ga. 2003); State v. Lott, 779 N.E.2d 1011, 1015 (Ohio 2002); Howell 7 v. State, 151 S.W.3d 450, 466 (Tenn. 2004). Therefore, instead of relying on Apprendi, 8 Petitioner argues that mental retardation is akin to an affirmative defense and that affirmative 9 defenses are “inextricably bound up in determinations of criminal responsibility and cannot 10 be taken away from the jury.” (Doc. 272 at 11.) 11 The only support cited by Petitioner is an excerpt from Grell II, wherein the court 12 observed that “[p]roof of mental retardation is like proof of an affirmative defense in that it 13 serves to relieve or mitigate a defendant’s criminal responsibility, and as with affirmative 14 defenses, the evidence of retardation will lie largely within the possession and control of the 15 defendant.” 135 P.3d at 702. However, the court’s analogy to an affirmative defense was 16 made in the context of addressing placement of the burden of proof for retardation on 17 defendants. In that part of its opinion concerning the right to a jury determination on mental 18 retardation, the court observed that although mental retardation involves factfinding, it “has 19 nothing to do with the acts that make up the crime itself or the defendant’s mental state while 20 committing the crime.” Id. at 706. Consequently, mental retardation is not the equivalent of 21 an affirmative defense, which necessarily requires factfinding concerning the crime or the 22 defendant’s mental state at the time of the offense. A better analogy for mental retardation 23 is competency for trial or execution, determinations that like mental retardation do not 24 require factfinding concerning the crime or the defendant’s mental state at the time of the 25 offense and that are routinely determined by judges. See, e.g., State v. Lott, 779 N.E.2d at 26 1015 (“[A] trial court’s ruling on mental retardation should be conducted in a manner 27 comparable to a ruling on competency (i.e., the judge, not the jury, decides the issue).”). 28 - 17 - 1 Additionally, the Supreme Court has continued to emphasize that States bear the 2 responsibility for developing appropriate procedures to determine Atkins ineligibility. In 3 Bobby v. Bies, the Court noted that its decision in Atkins “did not provide definitive 4 procedural or substantive guides for determining when a person who claims mental 5 retardation will be so impaired as to fall [within Atkins’ compass].” 556 U.S. 825, 831 6 (2009) (alteration in original). Rather, the Court explained that it left to the States “the task 7 of developing appropriate ways to enforce the constitutional restriction.” Id. (quoting 8 Atkins, 536 U.S. at 317). Further, in this very case, the Court reversed the Ninth Circuit’s 9 order directing the Arizona court to conduct a jury trial to determine whether Petitioner is 10 mentally retarded, noting again that States were at liberty to adopt their own measures for 11 adjudicating mental retardation claims. Schriro v. Smith, 546 U.S. at 7. Although the Court 12 noted that such measures “might, in their application, be subject to constitutional challenge,” 13 id. at 8, Petitioner here fails to proffer any authority suggesting that Arizona’s decision to 14 commit the mental retardation decision to a judge, not a jury, violates his constitutional 15 rights. 16 C. Mental Retardation 17 Petitioner does not dispute that the state court’s finding as to mental retardation is a 18 determination of fact entitled to a presumption of correctness in this Court. (See Doc. 272 19 at 25 n.4.) He asserts, however, that he is entitled to de novo review under 28 U.S.C. § 20 2254(d) because the denial of a PET scan combined with the lack of a jury trial on mental 21 retardation resulted in (1) an inadequate factfinding procedure by the state court; (2) the 22 failure to adequately develop material facts at the state court Atkins hearing; (3) the failure 23 to provide Petitioner a full, fair, and adequate hearing; and (4) a violation of Petitioner’s due 24 process rights. See 28 U.S.C. § 2254(d)(2), (3), (6) & (7) (1994). 25 The Court has already addressed Petitioner’s PET scan and jury determination claims 26 and found that each lacks merit. Accordingly, neither of these alleged deprivations provides 27 a basis for satisfying the exceptions in the previous version of § 2254(d) for overcoming the 28 - 18 - 1 presumption of correctness. The state court provided a lengthy period of time for Petitioner 2 to prepare for the Atkins hearing and authorized Petitioner’s expert of choice, his initial 3 diagnostic testing requests, investigative resources, and numerous depositions of lay 4 witnesses. Other than the lack of a PET scan and jury determination on the mental 5 retardation issue, Petitioner identifies nothing to support a finding that the state court’s 6 factfinding procedures were inadequate, that material facts were left undeveloped, that the 7 state court failed to provide a full and fair hearing, or that his due process rights were 8 violated. Therefore, the Court finds that Petitioner has not overcome the presumption of 9 correctness on any of these grounds. 10 Petitioner also asserts summarily that the state court’s determination is not fairly 11 supported by the record. See 28 U.S.C. § 2254(d)(8). He does not identify deficiencies in 12 the state court’s ruling, but instead contends that his proffered evidence “overwhelmingly” 13 established the subaverage intellectual functioning and adaptive skills prongs of Arizona’s 14 mental retardation test as of the time of the offense in 1980. The Court has reviewed the 15 entirety of the record provided by the parties and concludes otherwise. 16 First, Petitioner does not dispute that the 1964 Otis tests are unreliable. The record 17 is devoid of any evidence concerning the testing, including the raw test data, identification 18 of the administrators and their qualifications, or the protocols followed. In addition, Drs. 19 Thompson and Martinez both testified that the Otis test would not be used today to determine 20 an individual’s IQ and was outdated at the time it was administered to Petitioner in 1964. 21 Therefore, the record fairly supports the state court’s conclusion that this evidence should be 22 given “little weight.” 23 Second, as noted by the state court, the evidence presented at the hearing indicated it 24 is just as likely that Petitioner’s poor school performance and unstable lifestyle was the result 25 of a severely dysfunctional upbringing and personality disorder as it was mental retardation. 26 Petitioner led a transient lifestyle, frequently changing employment and residences, but many 27 of his jobs (such as being a mechanic, a cable installer, and a truck driver) required at least 28 - 19 - 1 a minimal degree of intellectual functioning. Although witnesses agreed that Petitioner is 2 not “book smart,” he learns quickly when shown how to do something. In addition, the 3 record supports a finding that Petitioner began living an independent life after dropping out 4 of school at age 16 and was not dependent on others to function in his daily life. 5 There is ample evidence in the record to support the state court’s conclusion that 6 Petitioner failed to establish either “subaverage general intellectual functioning” or 7 “significant impairment in adaptive behavior” before the age of 18 as set forth in A.R.S. § 8 13-703.02. Consequently, Petitioner has not overcome the presumption of correctness 9 attached to the state court’s finding that he was not mentally retarded, as defined under 10 Arizona law, at the time of the offense. 11 IV. Cause for Procedural Default of IAC Claim 12 Following the Supreme Court’s decisions in Maples v. Thomas and Martinez v. Ryan, 13 the Court directed the parties to file simultaneous supplemental briefs on the effect, if any, 14 of these cases on the issue of whether Petitioner has cause to overcome the procedural default 15 of his sentencing IAC claim and whether this Court has jurisdiction to revisit the issue. The 16 parties agree that this Court lacks jurisdiction given the expressly limited wording of the 17 Ninth Circuit’s remand order. (Doc. 278 at 2; Doc. 279 at 2.) Therefore, the Court will not 18 address the parties conflicting views on applicability of these cases to Petitioner’s cause 19 argument. See United States v. Davis, 519 F.3d 926, 927 (9th Cir. 2008); United States v. 20 Stump, 914 F.2d 170, 172 (9th Cir. 1990). 21 VI. Certificate of Appealability 22 In Slack v. McDaniel, 529 U.S. 473, 482 (2000), the Supreme Court held that the right 23 to appeal from a denial of the writ of habeas corpus is governed by AEDPA’s certificate of 24 appealability (COA) requirements, not the previous certificate of probable cause (CPC), if 25 the notice of appeal is filed after April 24, 1996, AEDPA’s effective date. In this case, 26 Petitioner’s first notice of appeal was filed on November 1, 1996. Therefore, the Court must 27 determine whether to issue a COA on any of the issues presented by this limited remand. See 28 - 20 - 1 Lambright v. Stewart, 220 F.3d 1022, 1024 (9th Cir. 2000) (finding that Petitioner and his 2 co-defendant needed COA rather than CPC to proceed with appeal). 3 Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district judge 4 must either issue or deny a certificate of appealability when it enters a final order adverse to 5 the applicant. If a certificate is issued, the court must state the specific issue or issues that 6 satisfy 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only 7 when the petitioner “has made a substantial showing of the denial of a constitutional right.” 8 This showing can be established by demonstrating that “reasonable jurists could debate 9 whether (or, for that matter, agree that) the petition should have been resolved in a different 10 manner” or that the issues were “adequate to deserve encouragement to proceed further.” 11 Slack, 529 U.S. at 484 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 12 The Court finds that reasonable jurists could not debate its resolution of Petitioner’s 13 Atkins-related claims. The question of whether the state court erred in finding that Petitioner 14 was not mentally retarded under Arizona law is not debatable among jurists of reason. 15 Similarly, there are no debatable facts or legal authority to support either the Ake claim or 16 the claimed right to a jury determination on mental retardation. According, the Court 17 declines to issue a COA. 18 Based on the foregoing, 19 IT IS HEREBY ORDERED that Petitioner’s Atkins-related claims are without merit. 20 Therefore, Petitioner’s Amendments to Petition for Habeas Corpus (Doc. 258) are denied. 21 The Clerk of Court shall enter judgment accordingly. 22 23 24 IT IS FURTHER ORDERED denying a certificate of appealability on Petitioner’s Atkins-related claims. DATED this 29th day of November, 2012. 25 26 27 28 - 21 -

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