Salazar, et al v. Stewart, et al

Filing 222

ORDER: IT IS ORDERED that, no later than 30 days following the filing of this Order, the parties shall each file a brief, not in excess of 17 pages, regarding the two issues set forth above. IT IS FURTHER ORDERED that the parties may choose to addres s the impact of Runningeagle v. Ryan, No. 07-99026, 2016 WL 3213095 (9th Cir. June 10, 2016) on the applicability of Martinez to Petitioner's claims in their supplemental briefing. (See attached PDF for complete information). Signed by Senior Judge Frank R Zapata on 7/7/16.(BAC)

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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 Alfonso Raymond Salazar, Petitioner, 10 11 v. 12 No. CV-96-00085-TUC-FRZ DEATH PENALTY CASE Charles Ryan, et al., ORDER 13 Respondents. 14 This matter is before the Court on limited remand from the Ninth Circuit Court of 15 Appeals. (See Doc. 195.)1 The court of appeals has ordered this Court to reconsider, in 16 the light of intervening law, including Martinez v. Ryan, 132 S. Ct. 1309 (2012), two 17 procedurally defaulted claims alleging ineffective assistance of counsel at sentencing: 18 that counsel (1) failed to investigate and prepare a social history (“Claim A-24”), and (2) 19 failed to provide background information to Petitioner’s mental health experts (“Claim 20 A-27”).2 21 This Court ordered supplemental briefing to address whether cause exists under 22 Martinez to excuse the procedural default of Claims A-24 and A-27, and whether 23 Petitioner is entitled to habeas relief under 28 U.S.C. § 2254 on the claims. (Doc. 197.) 24 25 1 26 27 28 “Doc.” refers to numbered documents in this Court’s case file (prior to August 2005) and this Court’s electronic case docket (beginning August 2005). 2 In its March 2000 order identifying the procedural status of Petitioner’s claims, the Court designated the ineffective assistance allegations as Claims A-1 through A-35. (Doc. 121.) At issue for purposes of this remand are Claims A-24 and A-27. For consistency, the Court will continue to refer to the claims as such. 1 The Court also ordered Petitioner to include any requests for evidentiary development 2 with the supplemental briefing. (Id.) 3 Petitioner filed a supplemental brief addressing the applicability of Martinez to 4 Claims A-24 and A-27, arguing that post-conviction counsel acted ineffectively in 5 litigating claims against sentencing counsel in state court, and requesting evidentiary 6 development and an evidentiary hearing on the procedural default of these claims. (Doc. 7 200.) Respondents filed a response, and Petitioner filed a reply. (Docs. 212, 217.) 8 Claims A-24 and A-27 as alleged in the supplemental briefing, however, appear to 9 be factually distinct from the claims Petitioner alleged in his second amended petition. In 10 his second amended petition, Petitioner asserted ineffectiveness of counsel based on a 11 general allegation of a failure to conduct an investigation into Petitioner’s background, 12 and failing to present that information to his mental health expert. (Doc. 114 at 24-25.) 13 Petitioner is now asserting very specific allegations of severe family dysfunction and 14 neuropsychological impairments that have never before been alleged in this Court. 15 (Compare Doc. 114 at 24-25 with Doc. 200.) Because it is not clear that the IAC claims 16 as alleged in Petitioner’s supplemental brief are properly before the Court for purposes of 17 addressing the merits of Petitioner’s underlying IAC claims, the Court finds that further 18 briefing on this issue is necessary. PROCEDURAL HISTORY 19 20 On July 25, 1986, Sara Kaplan, a frail 83-year old woman who lived alone, was 21 beaten and strangled in her home. Petitioner and a co-defendant, Michael Wayne Davis, 22 were charged and tried separately on one count each of burglary, kidnaping, and first 23 degree murder. Petitioner was represented at trial and sentencing by court-appointed 24 counsel William Redondo and Patrick Hurd. A jury convicted Petitioner of all counts on 25 December 14, 1987, and Pima County Superior Court Judge Gilbert Veliz sentenced him 26 to death for the murder and to concurrent terms for the burglary and kidnapping.3 27 3 28 On September 23, 1987, Davis was also convicted on all counts, and sentenced to death for the murder. Following a successful petition for post-conviction relief based on counsel’s ineffectiveness for changing defenses mid-trial, Davis was retried and -2- 1 Petitioner filed an appeal with the Arizona Supreme Court. (APP-DR at item No. 1.)4 2 Attorney Fred Dardis was appointed to represent Petitioner in his direct appeal. (ROA I at 3 419.) Dardis also represented Petitioner in his petition for post-conviction relief (“PCR”) 4 proceedings, under Rule 32, Arizona Rules of Criminal Procedure (“Rule 32”). On 5 September 21, 1988, while the appeal was pending, Dardis filed a preliminary PCR 6 petition with the trial court. (ROA II at 266–313.) 7 The Arizona Supreme Court stayed the appeal pending resolution of the Rule 32 8 proceedings. (APP-DR at item No. 13.) The trial court granted Petitioner’s motion for an 9 evidentiary hearing on several issues raised in his PCR, including claims of ineffective 10 assistance of counsel (“IAC”) at trial and at sentencing, and granted Petitioner’s request 11 for an investigator. (ROA II at 495–97.) Following an evidentiary hearing, oral argument, 12 and additional briefing on the PCR petition, the trial court denied relief. (ROA II at 221– 13 24.) Petitioner filed a petition for review of the Rule 32 proceedings. (ROA II at 257.) 14 The Arizona Supreme Court consolidated the petition with the reinstated appeal and 15 treated the consolidated matters as a single appeal. (APP-DR at item No. 41.) As a result, 16 the court struck the substantive portion of Petitioner’s petition for review and directed 17 Petitioner to include Rule 32 arguments in the appellate opening brief. (APP-DR at item 18 No. 37.) On December 17, 1992, the Arizona Supreme Court affirmed Petitioner’s 19 convictions and sentences and denied his PCR-related claims. See State v. Salazar, 173 20 Ariz. 399, 844 P.2d 566 (1992), cert. denied, 509 U.S. 912 (1993). 21 22 23 24 25 26 27 28 sentenced to life imprisonment. 4 The pertinent parts of the state court record consist of the trial and postconviction reporter’s transcripts (“RT”); a four-volume Record on Appeal (“ROA I”), containing a consecutively numbered set of pleadings and minute entries prepared by the Clerk of the Pima County Superior Court for the direct appeal (filed May 23, 1988); a five-volume Record on Appeal (“ROA II”) prepared for the petitioner for review of the first Rule 32 petition (two volumes filed June 7, 1991, and three supplemental volumes filed Dec. 26, 1991); a two-volume Record on Appeal (“ROA III”) prepared for the petition for review of the second Rule 32 petition (one volume filed on August 10, 1995, and one supplemental volume filed August 14, 1995); and certified copies of the Arizona Supreme Court’s docket in Petitioner’s direct appeal in case number CR-88-135-AP/PC (“APP-DR”) and petition for review from the denial of relief in Petitioner’s second petition for post-conviction relief in case number CR-95-0373-PC (“APP-PC”). -3- 1 Petitioner filed a second PCR petition in June, 1994. The PCR court summarily 2 denied relief, finding the claims precluded. (ROA III at 1.) On November 22, 1995, the 3 Arizona Supreme Court denied a petition for review of the PCR court’s ruling. (APP-PC 4 at item No. 3.) 5 Petitioner filed a preliminary Petition for Writ of Habeas Corpus in this Court on 6 February 5, 1996, and an amended petition on December 19, 1997. (Docs. 1, 62.) A 7 second amended petition was filed on July 30, 1999. (Doc. 113.) The Court initially 8 dismissed several claims as procedurally barred, including the claims at issue in this 9 order: Claims A-24 and A-27. (Doc. 121.) The Court subsequently denied the remainder 10 of Petitioner’s claims in two orders addressing the conviction- and sentencing-related 11 claims separately. (Docs. 169, 177.) 12 While Petitioner’s appeal from this Court’s denial of habeas relief was pending, 13 the Supreme Court decided Martinez v. Ryan, holding that where IAC claims must be 14 raised in an initial PCR proceeding, failure of counsel in that proceeding to raise a 15 substantial trial IAC claim may provide cause to excuse the procedural default of that 16 claim. 132 S. Ct. at 1320. Subsequently, Petitioner moved the Ninth Circuit to stay his 17 appeal and grant a limited remand in light of Martinez. The Ninth Circuit granted the 18 motion and remanded for consideration of Claims A-24 and A-27 in light of intervening 19 law, stating that the “remanded claims are for purposes of remand substantial.” (Doc. 20 195) (citing Martinez, 132 S.Ct. 1309; Trevino v. Thaler, 133 S. Ct. 1911 (2013); Detrich 21 v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc); Dickens v. Ryan, 740 F.3d 1302 (9th 22 Cir. 2014) (en banc)). 23 24 In August 2015, the parties completed supplemental briefing in this Court. DISCUSSION 25 Petitioner seeks reconsideration based on Martinez for two claims alleging counsel 26 ineffectiveness for failing to investigate and prepare a social history of Petitioner for 27 sentencing (Claim A-24), and failing to provide information concerning Petitioner’s 28 background to mental health experts (Claim A-27). The Court previously found these -4- 1 claims to be procedurally defaulted because Petitioner failed to present them in state 2 court and no remedies remained available to exhaust the claims. (Doc. 121 at 18, 33.) 3 To excuse the default of Claims A-24 and A-27, Petitioner argues there is a 4 reasonable probability that post-conviction relief would have been granted, and Petitioner 5 would have received a life sentence, had PCR counsel adequately presented his IAC at 6 sentencing claims by conducting an investigation into Petitioner’s social history, 7 presenting that history to a mental health expert, and providing the resulting mitigating 8 evidence to the PCR court to establish prejudice as a result of trial counsel’s failures at 9 sentencing. (Doc. 200 at 20-21, n.4.) 10 Respondents assert that Petitioner’s supplemental brief is beyond the scope of this 11 remand, that Petitioner has not shown that PCR counsel was ineffective in failing to raise 12 Claims A-24 and 27 in state court, and that Petitioner is not entitled to relief on the merits 13 of the claims. After due consideration, the Court finds that Petitioner’s claims and 14 supplemental briefing do not fall outside the scope of remand, but that further briefing is 15 necessary before the Court determines if these claims are properly before the Court, and, 16 if so, whether Petitioner can establish cause to excuse the procedural default of the 17 substantial claims. 18 I. Applicable Law 19 Because the doctrine of procedural default is based on comity, not jurisdiction, 20 federal courts retain the power to consider the merits of procedurally defaulted claims. 21 Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, habeas review of a defaulted 22 claim is barred unless a petitioner “can demonstrate cause for the default and actual 23 prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 24 U.S. 722, 750 (1991). Ordinarily, “cause” to excuse a default exists if a petitioner can 25 demonstrate that “some objective factor external to the defense impeded counsel’s efforts 26 to comply with the State’s procedural rule.” Id. at 753. In Coleman, the Court held that 27 ineffective assistance of counsel in post-conviction proceedings does not establish cause 28 for the procedural default of a claim. Id. -5- 1 2 In Martinez, however, the Court established a “narrow exception” to the rule announced in Coleman. The Court explained: 6 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. 7 132 S. Ct. at 1320; see also Trevino, 133 S. Ct. at 1918 (noting that Martinez may apply 8 to a procedurally defaulted trial-phase ineffective assistance of counsel claim if “the 9 claim . . . was a ‘substantial’ claim [and] the ‘cause’ consisted of there being ‘no counsel’ 10 or only ‘ineffective’ counsel during the state collateral review proceeding” (quoting 11 Martinez, 132 S. Ct. at 1320)). 3 4 5 12 Accordingly, under Martinez, a petitioner may establish cause for the procedural 13 default of an ineffective assistance claim, “where the state (like Arizona) required the 14 petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) 15 ‘counsel in the initial-review collateral proceeding, where the claim should have been 16 raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 . . . 17 (1984),’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a 18 substantial one, which is to say that the prisoner must demonstrate that the claim has 19 some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S. 20 Ct. at 1318); see Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) overruled on 21 other grounds by McKinney v. Ryan, 813 F.3d 798, at 818-19 (9th Cir. 2015); Dickens, 22 740 F.3d at 1319–20; Detrich, 740 F.3d at 1245. 23 Respondents argue Martinez does not apply to excuse Petitioner’s procedural 24 default of these claims because, at the time of Petitioner’s appeal, state law allowed 25 Petitioner to raise his IAC claims on direct appeal. Petitioner responds that this argument 26 misrepresents the actual procedure in place at the time of Petitioner’s PCR proceeding 27 and that Martinez does not hinge on whether Petitioner’s IAC claims, brought first in a 28 collateral proceeding, are later consolidated for review with the direct appeal. After the -6- 1 parties completed supplemental briefing, the Ninth Circuit issued its decision in 2 Runningeagle v. Ryan, No. 07-99026, 2016 WL 3213095 (9th Cir. June 10, 2016), 3 finding Martinez applicable to habeas petitioners who were required, by virtue of 4 Arizona’s procedural system in place during the relevant period, to assert their IAC 5 claims in the initial-review collateral proceeding.5 Id. at *9. Petitioner was similarly 6 situated to Runningeagle, and brought his appeal during the same relevant period as 7 Runningeagle. Thus, it would seem that, under Runningeagle, the Court should apply 8 Martinez to determine whether Petitioner can demonstrate cause and prejudice to excuse 9 the procedural default of Claims A-24 and A-27. However, because Petitioner has 10 requested that the parties be allowed to brief the impact of the decision in Runningeagle 11 (see Doc. 220) the Court will permit the parties to do so in conjunction with the 12 supplemental briefing ordered below before the Court makes a determination as to the 13 applicability of Martinez to Petitioner’s claims. 14 II. Relevant Facts 15 Petitioner’s IAC claims relate to claims which this Court has previously resolved 16 on the merits. Therefore, some of the factual background set forth herein repeats what has 17 previously been set out in the Court’s July and September 2005 orders addressing 18 Petitioner’s IAC claims during both the guilt- and penalty-phases of trial. State Court Proceedings6 19 20 21 22 23 24 25 26 27 28 5 The Court in Runningeagle expressed no opinion as to whether, before the Arizona Supreme Court decided State v. Valdez, 160 Ariz. 9, 770 P.2d 313 (Ariz. 1989) and State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (Ariz. 1989), Arizona law effectively required petitioners to bring IAC claims in initial-review collateral proceedings. See Runningeagle, 2016 WL 3213095, *9, n.12 (citing Cf. Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (stating that, as of 1984, no Arizona case required IAC claims to be brought on direct appeal)). Respondents acknowledge, however, that the procedure in Valdez was controlling law at the time of Petitioner’s direct appeal and that Petitioner followed that procedure. (See Doc. 212 at 8.) 6 Because the procedural and factual background of Petitioner’s state court proceedings has been extensively summarized by this Court in prior decisions, (see Docs. 121, 133, 169, and 177), the Court reiterates now only the facts which are salient to the discussion of the remanded claims. This includes some of the procedural and factual summary regarding other sentencing-related IAC claims, specifically Claims A-21 and A-22, and this Court’s ruling on the merits of those claims. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 The following events, as described by the Arizona Supreme Court, led to Petitioner’s prosecution and conviction: The victim in this murder case is a fragile, 83-year-old woman, 5 feet tall, 89 pounds, who wore a patch over a sightless eye and lived alone. On the night of July 25, 1986, she was murdered in her home by beating and strangulation. The murderers gained forced entry to her home by prying metal security bars from a window. On the day of the murder, defendant Salazar earned some money doing odd jobs. He and his co-defendant, Michael Wayne Davis, then used the money to buy tequila and gin which they consumed during the course of the day. Around midnight, they attended a party at the home of James Teran, who provided them with some beer. On their way back to Davis’ house, where they both lived, they broke into the victim’s home by prying wrought iron bars from a window. Later that same evening, Davis’ aunt, Maria Snyder, noticed that defendant, who was not wearing a shirt, had scratch marks on his chest. The day after the murder, concerned relatives of the victim asked police to check on her. The police found her body on top of an overturned table. Her TV set was still blaring. She had been severely beaten and had also been strangled with a telephone cord. Palm prints, fingerprints and footprints were found in and around the house and on the wrought iron bars that had been pried from the window. 16 17 18 Approximately 2 months later, defendant was arrested. While his story was to change at trial, he initially denied ever being in the victim’s house. 19 Salazar, 173 Ariz. at 403–04, 844 P.2d at 570–71. 20 Pretrial Mental Health Evaluations 21 Prior to trial, Petitioner was evaluated by two psychiatrists and one psychologist. 22 John LaWall, M.D., a neurologist-psychiatrist, examined Petitioner after the court 23 granted Petitioner’s request to evaluate his “mental condition at the time of the crime 24 charged and his competence to stand trial,” pursuant to Rule 11.2 of the Arizona Rules of 25 Criminal Procedure (“Rule 11”). (ROA I at 48, 51.) Dr. LaWall interviewed Petitioner 26 and reviewed records consisting of transcripts of statements from Petitioner, witnesses, 27 and his co-defendant, and police reports. Dr. LaWall was unable to diagnose Petitioner 28 with any mental illness, and concluded that there was no evidence to suggest he did not -8- 1 understand the nature, quality, and consequence of his actions at the time of the alleged 2 offense. (Doc. 63, Ex. WW.) 3 Psychiatrist David Gurland, M.D., conducted a second Rule 11 evaluation of 4 Petitioner. (Doc. 63, Ex. VV.) Dr. Gurland opined that Petitioner, who denied murdering 5 the victim, was of at least average intelligence, with no evidence of bizarre or 6 inappropriate behaviors. (Id.) Though he appeared to have been mildly to moderately 7 intoxicated at the time of the offense, he “was certainly aware of the nature and quality of 8 his acts and knew right from wrong at that time.” (Id.) 9 In September 1987, defense counsel retained psychologist and biofeedback 10 practitioner Robert Crago, Ph.D., to conduct psychological testing of Petitioner, develop 11 a personality history, and determine the existence of any neuropsychological disorders. 12 (ROA I at 100, 109-10.) Defense counsel requested information about Petitioner’s 13 “mental state, personality organization and cognitive functioning.” (Doc. 200-1, Ex. 3.) 14 Dr. Crago spent two days evaluating Petitioner. (Doc. 200-1, Ex. 3 at 1.) Petitioner 15 told Dr. Crago that he began smoking marijuana at approximately nine years of age and 16 “enjoyed hallucinating.” (Id.) He progressed from smoking marijuana to “mushrooms and 17 acid,” amphetamines, downers, cocaine, and alcohol. (Id. at 2.) Petitioner also said that, 18 in addition to drinking alcohol, he had shot “two riggs” of cocaine intravenously on the 19 day of the murder. (Id. at 1.) 20 Diagnosing Petitioner with Substance Abuse, currently in remission, Dr. Crago 21 concluded that Petitioner historically functioned as a drug addict, who most frequently 22 abused alcohol, cocaine, and LSD. (Id. at 5.) Based on standardized testing, Dr. Crago 23 found Petitioner’s intelligence to be “in the average range” and his cognitive functioning 24 affected only by educational deficits, not any significant anxiety, pathological thought 25 patterns, or residual brain damage. (Id. at 3.) 26 In terms of personality functioning, however, Dr. Crago determined that Petitioner 27 was “quite immature” and “moderately to severely disturbed.” (Doc. 200-1, Ex. 3 at 1.) 28 “Although not floridly or overtly psychotic or schizophrenic, his thinking and reality -9- 1 testing showed definite evidence of a thought disorder including hallucinations and 2 paranoid trends. He might best be characterized as a functioning or borderline 3 schizophrenic.” (Id. at 4.) Dr. Crago concluded that Petitioner presented as suffering from 4 Mixed Personality Disorder, with schizotypal, borderline, paranoid, antisocial and 5 avoidant features.” (Id. at 5.) On the basis of his immaturity and thought disorder, Dr. 6 Crago further opined that Petitioner was “quite reactive to his environment,” a condition 7 which might manifest itself in “releasing aggressive or hostile impulses.” (Id. at 4.) 8 According to Dr. Crago, the expression of anger in persons with Petitioner’s personality 9 profile “tends to come in acute outbursts and it may involve dangerously assaultive 10 behavior.” (Id.) 11 With regard to the offense, Petitioner denied murdering the victim, but admitted 12 entering the house to commit burglary. Petitioner denied knowing the house was 13 occupied and indicated that he became afraid and left “when he felt a cold hand grasp his 14 wrist and saw something white which he felt was a ‘ghost.’” (Id. at 1.) Because Petitioner 15 denied participating in the murder, Dr. Crago determined it was “impossible to accurately 16 assess his sanity” and “whether he knew right from wrong” at the time of the crime. (Id. 17 at 5-6.) Dr. Crago concluded, however, that if Petitioner had in fact committed the 18 murder, “it is highly possible” “he was insane or irrational at the time” because “extreme 19 alcohol intoxication and especially cocaine intoxication often precipitate psychotic 20 behavior even in individuals who are much less disturbed” than Petitioner. (Id. at 6.) 21 Trial 22 Because the physical evidence undisputedly established Petitioner’s presence 23 inside the bedroom, the defense aimed to establish that Petitioner left the house before 24 Davis killed the victim (the “nonparticipation theory”), to attack the prosecution’s charge 25 that Petitioner was “actively and intimately involved in” the murder. Counsel sought to 26 prove that Petitioner entered the house out of curiosity and under the mistaken belief that 27 it was vacant, but terminated his involvement by fleeing the premises minutes after he 28 entered and realized his error. (RT 12/3/87 at 158, 166; RT 3/9/90 at 124.) - 10 - 1 At trial, defendant claimed that he and Davis entered the victim’s home on a whim, out of curiosity, and that they believed the home was unoccupied. After Davis pried the metal bars from the window and they entered, defendant said he used a pocket lighter to guide himself through the home which, he said, was dusty, full of junk and completely silent. While “looking” in a file drawer, something that he thought was a ghost touched his arm and he fled the house in terror. After that, he said, Davis caught up with him outside and admitted that he had just killed someone in the house. Though defendant claimed not to have believed Davis at the time, he nevertheless removed and discarded his shoes at that point because he knew that his footprints were all over the victim’s home. He then fled barefoot across desert terrain. The following day, he said he moved out of the Davis household after learning from TV news that there really had been a murder. 2 3 4 5 6 7 8 9 10 The state’s version of defendant’s role the night of the murder was considerably different than defendant’s and was based, in large part, on physical evidence. A fingerprint examiner established that defendant’s prints were found on the window grating that had been pried loose, on a telephone book inside the point-of-entry window, and on three file cabinets in the murder room. An identification technician testified concerning the bloody handprints found on one of the three file cabinets. 11 12 13 14 15 An expert tracker testified that zig-zag pattern shoeprints were found both under the body and partially on the body. These prints were made by a Tiger brand running shoe, which defendant admitted owning. Because the shoe prints were both under and on top of the body, they show that the shoe wearer was present both before and after the murder. 16 17 18 19 The medical examiner established that blood spatter patterns showed that the victim was beaten while on her bed and that she was still alive when she was dragged to the floor. Ultimately, she died atop an overturned table. The victim had defensive wounds on her arms and hands, and was beaten so severely that her nose was broken. She was strangled so fiercely that her Adam’s apple was crushed. 20 21 22 23 24 The jury, obviously rejecting defendant’s testimony, found him 25 guilty. 26 Salazar, 173 Ariz. at 404, 844 P.2d at 571. 27 ... 28 ... - 11 - Presentencing Proceedings 1 2 One month following Petitioner’s conviction, the court held an 3 aggravation/mitigation hearing. In a pre-hearing brief, the prosecution argued that two 4 aggravating factors required imposition of the death penalty: Petitioner committed the 5 murder with the expectation of pecuniary gain, A.R.S. § 13-703(F)(5), and in an 6 especially cruel, heinous, or depraved manner, A.R.S. § 13-703(F)(6). (ROA I at 382-92.) 7 Defense counsel also submitted a pre-hearing brief. (Id. at 352-69.) Consistent 8 with the defense’s guilt-phase theory, the memorandum asserted that Petitioner did not 9 participate and was not present when Davis killed the victim. (Id. at 354-56.) The defense 10 argued against imposition of the death penalty because the evidence could not 11 conclusively establish that Petitioner killed the victim, it was clear that the jury found 12 Petitioner guilty under the felony murder rule, and the State failed to prove beyond a 13 reasonable doubt that Petitioner killed, attempted to kill, or intended to kill the victim. 14 (Id. at 356-57.) Finally, the memorandum urged the court to consider a number of 15 mitigating factors: (1) Petitioner was intoxicated from alcohol at the time of the crime 16 and thus his capacity to appreciate the wrongfulness of his conduct or to conform his 17 conduct to the law’s requirements was significantly impaired; (2) Petitioner’s role in the 18 killing was “relatively minor”; (3) Petitioner could not have reasonably foreseen that his 19 conduct would create a grave risk of death because he believed the house was unoccupied 20 and he and Davis never discussed what they would do if inhabitants were encountered; 21 and (4) Petitioner’s young age – twenty-two at the time of the crime – and lack of prior 22 felony convictions (id. at 366-68). See A.R.S. §§ 13-703(G)(1), (3), (4) & (5). 23 To buttress the nonparticipation mitigation theory at the presentencing hearing, 24 defense counsel elicited testimony from Petitioner’s parents and brother that Petitioner 25 was neither violent nor aggressive. Petitioner’s parents testified that Petitioner never got 26 into fights at school or home, did not have a violent temper, and was well regarded by 27 neighbors and employers. (RT 1/14/88 at 6-9, 12–15.) In response to the judge’s 28 questioning, Mrs. Salazar acknowledged that Petitioner used marijuana and drank - 12 - 1 alcohol, but said she was unaware of him using any other types of drugs or drinking 2 “hard liquor.” (Id. at 20–21.) She further testified that she had never seen Petitioner 3 change personalities or become aggressive when intoxicated. (Id. at 21.) 4 Petitioner’s younger brother, Mauricio, testified that Petitioner got into a lot of 5 fights at school, but most were in defense of Mauricio. (Id. at 23.) He and Petitioner 6 began drinking beer and smoking pot in the fifth or sixth grade. (Id. at 24.) In junior high, 7 they started doing other types of drugs, including LSD, cocaine, speed, and mushrooms. 8 (Id. at 25.) According to Mauricio, Petitioner drank and used drugs up to the time of the 9 crime. (Id.) Although Mauricio admitted seeing Petitioner on occasion become violent 10 and “explode” when drunk (id. at 30-31), he testified that most of the time Petitioner was 11 “really quiet,” “withdrawn,” and “would just keep to himself” when intoxicated (id. at 26, 12 31). Presentencing Report 13 14 Prior to sentencing, the trial judge also received and considered a presentence 15 report (PSR) prepared by the court’s probation department. (Doc. 200-1, Ex. 5.)7 The 16 PSR provided the following social history: 22 The defendant was one of three offspring born to Mauricio and Darlene Salazar. Mr. Salazar also reared five stepchildren which were the result of his wife’s first marriage. Mr. Salazar was employed for Hughes Aircraft and was able to provide his family with a lower middle class socioeconomic environment. The defendant related that he developed close emotional ties to his parents and siblings. While his juvenile record mentioned that his mother tended to be overprotective, there is no mention of a dysfunctional family environment. In general, the defendant experienced an uneventful and healthy childhood. 23 (Id. at 4.) Petitioner was a poor student, who had to repeat the third and eighth grades. 24 (Id. at 5.) “The defendant described himself as ‘a mellow person’ but confirmed that he 25 had a reputation of being an aggressive fighter in high school.” (Id.) Petitioner admitted 26 being an alcohol and drug abuser, but claimed to be in sound physical health and denied 17 18 19 20 21 27 7 28 Petitioner submitted a copy of the PSR, without attachments, as an exhibit to his supplemental brief. The original presentence report, with attachments, was provided to this Court as part of the state court record on appeal (“ROA I”). - 13 - 1 any psychological difficulties. (Id.) “He expressed himself in a calm manner and 2 articulated very well, especially considering his limited education.” (Id.) 3 Petitioner’s criminal record included several charges as a juvenile, including 4 throwing rocks at a bus, running away from home, fighting with police officers, and 5 stealing a purse.8 (Id. at 3.) Following the purse-snatching incident at age fifteen, he was 6 evaluated by a court appointed psychologist in preparation for sentencing, and this report 7 was included in the PSR for the instant offense. (Doc. 200-3, Ex. 41.) Dr. Cynthia 8 Ginnetti found symptoms of depression resulting from Petitioner’s grief at the death of an 9 older brother (who was stabbed in a barroom brawl) and the termination of relationships 10 with a close friend and a girlfriend. However, she found “no formal thought disorder” and 11 recommended that Petitioner seek outpatient mental health treatment for grief and anger. 12 (Id. at 2-3.) At the time, Petitioner reported getting along well with his mother but having 13 a strained and distant relationship with his father. (Id. at 2.) 14 The PSR concluded: 15 The defendant’s involvement in the instant offense is difficult to analyze. Although he does not perceive his family background as dysfunctional, there is considerable evidence that contradicts his perception. He has maintained a pattern of abusing drugs and alcohol since his mid-teen years. Additionally, there are certain incidents, documented in the criminal record section of this report, which reveal the presence of an aggressive personality. His involvement in the instant offense appears to have been an extreme situation, probably facilitated by his severe intoxicated state and the presence of an accomplice. 16 17 18 19 20 21 (Doc. 200-1, Ex. 5 at 6.) 22 Appended to the PSR were fifteen letters of support from friends, family, and 23 former co-workers. Many of the letters characterized Petitioner as a non-violent person 24 who stayed out of trouble; all described him as a loving person who helped others. (ROA 25 I, PSR, Attachs. (packet of handwritten letters).) Petitioner also submitted a letter. It 26 stated, in pertinent part, that he began using marijuana in the fifth grade and LSD and 27 8 28 The PSR also listed residential burglary and auto theft as part of Petitioner’s record, but counsel asserted during presentencing arguments, without dispute from the State, that this was an error. (RT 2/8/88 at 18-19.) - 14 - 1 cocaine in the seventh grade, his “school days weren’t very violent” as he was only in 2 two fights in school and “one after that,” he was an “alcoholic” and was using a lot of 3 LSD by the eighth grade, and he would not be “in this mess” if he had not have been 4 “drinking so much liquor that night.” (Id.) With respect to the murder, Petitioner wrote 5 that “[i]t never crossed my mind to still [sic] or hurt anyone and I did’ent [sic]”; that he 6 told the truth on the stand and had no reason to lie; and that, “I do not see why I have to 7 be put to death, or spend the rest of my life in prison for something I did not do.” (Id.) 8 Finally, the PSR included a report from psychologist Catherine Boyer, who at the 9 court’s request conducted a general evaluation of Petitioner following his conviction. 10 (Doc. 200-2, Ex. 14.) Other than depression, Dr. Boyer found that Petitioner presented 11 “no indication of any other major mental disorder.” (Id. at 5.) Testing indicated Petitioner 12 functions in the average range of intelligence, and Dr. Boyer found no gross cognitive 13 deficits. (Id. at 2, 5.) In view of Petitioner’s drug abuse history, however, Dr. Boyer 14 opined that Petitioner may have some mild neuropsychological impairment. (Id. at 2.) 15 Though Petitioner denied any incidents of abuse, or significant family conflicts, Dr. 16 Boyer noted that the difficulties among his siblings “would suggest some degree of 17 family conflict or dysfunction, despite [Petitioner’s] generally positive description of 18 family life.” (Id.) She concluded that chronic and severe substance abuse had been the 19 primary problem throughout Petitioner’s life and diagnosed him as in remission from 20 “Alcohol Dependence” and “Drug Abuse (LSD, marijuana, cocaine).” (Id. at 5.) In 21 conversations with Dr. Boyer, Petitioner maintained his innocence. He admitted 22 consuming a large quantity of alcohol before entering the victim’s home, but denied 23 being present at the time of the murder. (Id. at 2.) Dr. Boyer was unable to determine 24 “[t]he extent to which drug or alcohol intoxication may alter [Petitioner’s] behavior,” but 25 found “some indication that at least in times in the past, he has been aggressive while 26 intoxicated.” (Id. at 5.) 27 ... 28 ... - 15 - Sentencing 1 2 Sentencing took place on February 8, 1988, several weeks after the mitigation 3 hearing. Defense counsel Hurd argued against the State’s alleged aggravating factors and 4 argued to the court that, in addition to being a mitigating factor, the felony murder rule 5 prevented the court from imposing the death penalty absent a finding beyond a 6 reasonable doubt that Petitioner killed, attempted to kill, or intended to kill the victim. 7 (RT 2/8/88 at 12-13.) In support of its theory that Davis committed the murder, the 8 defense emphasized the following points: (1) Petitioner had been drinking heavily and 9 was very intoxicated when he entered the house, (2) Petitioner did not know the victim 10 and believed the house was unoccupied, and (3) none of the physical evidence 11 implicating Petitioner was found near the bed side of the room by the victim’s body. (Id. 12 at 8-12.) Counsel also reurged the mitigating factors identified in the presentencing brief: 13 (1) due to his highly intoxicated state, Petitioner lacked the capacity to appreciate the 14 wrongfulness of his conduct; (2) he was a minor participant in the killing; (3) he entered 15 the house believing it to be uninhabited and thus could not have reasonably foreseen that 16 a death would occur; (4) his young age; and (5) his lack of significant criminal record. 17 (Id. at 17-18.) In closing, the defense cited Dr. Boyer’s report, which described Petitioner 18 as “the type of person who, when confronted with the difficulties of life, retreats. You 19 know, it’s a fight-or-flight-type syndrome. His response is flight.” (Id. at 19.) Based on 20 Petitioner’s trial testimony, counsel contended, “that’s what he did in this case, Judge.” 21 (Id.) 22 Petitioner also addressed the court before sentencing: “Your Honor, I’d like to say 23 I feel really bad about what happened that night. I had no idea that would happen. I didn’t 24 kill that poor lady. I pray for her and her family every night. Your Honor, I’d ask you not 25 to give me the death penalty.” (Id. at 20.) 26 Following the arguments of counsel, the court entered its findings. With regard to 27 the “especially cruel, heinous or depraved” aggravating factor, the court found that 28 A.R.S. § 13- 703(F)(6) was proven beyond a reasonable doubt based on “the excessive - 16 - 1 amount of gratuitous violence on the victim, the senselessness of the murder and the 2 helplessness of the victim.” (Id. at 36.) Specifically, the court determined that: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 . . . the Defendant and Mr. Davis went to the house in the middle of the night where they knew a fragile, elderly woman lived; that they removed the wrought iron on the window that had been placed there for her protection; that at the time that this was occurring, the television was on. So, the Court determines that there is no doubt that the men knew that the residence was occupied at that point. The Defendant then went to a relatively secluded part of the residence where she slept. The Court further finds that the position of the bedroom or sleeping area was such that you could not just accidentally run into her because it was in a relatively secluded portion of the house with only one way to get there. The Court finds that this was not an accidental interaction with the victim. The Court further notes that there was a large number of file cabinets and other storage places in the house. The footprints of two different individuals that were found somewhere on her were – were on her body. Some footprints were on the top of the table wherein the body was found and the footprints were left by different type shoes. There were a number of file drawers opened and there were numerous and varied areas where valuables, if she had any, could have been hidden. The Court further notes that there were a number of injuries to Ms. Kaplan implying a number of blows to her face and body, including a blow to her forehead, one behind her ear, one to her mouth, one under the chin, and a blow to her shoulder. She was a frail person weighing approximately eighty-nine pounds, and was approximately eighty-three years of age. 28 - 17 - 1 2 3 4 She was strangled with a telephone cord after the beating, and the telephone cord was looped twice around her neck with great force. Fingerprints or palm prints of the Defendant Davis and the fingerprints of the Defendant Salazar in what appeared to be blood were found immediately adjacent to where the strangled body was located. 5 6 7 8 9 10 11 12 13 14 15 16 17 Of the two different kinds of footprints that were found on the table where the body lay, one set was on her body. The other footprint was left on the table where she had been stepped on, and there was an imprint on the arm and the table. The Court further notes that in addition to Mr. Salazar’s fingerprints that was [sic] left in what appeared to be blood, there were scratches on his chest. Either cruelness of mind or depravity was exhibited by the placement of the telephone back on the receiver while the cord was entwined around Ms. Kaplan’s throat. The Court finds that the forensic evidence indicates that this was a planned, calculated attempt to go to her bedroom. And I believe what occurred afterwards was an attempt to extract, if possible, information of where imagined valuables were hidden. That explains in this Court’s view the number of blows and injuries she suffered before she was strangled. 18 (Id. at 34-36.) The Court did not address, or make any findings regarding, the “pecuniary 19 gain” aggravating factor alleged by the State. 20 Regarding mitigation, the court found that Petitioner had failed to establish any of 21 the statutory factors set forth in A.R.S. § 13-703(G). (Id. at 36-37.) With regard to the 22 “relatively minor” participant factor in particular, see A.R.S. § 13-703(G)(3), the court 23 expressly found that Petitioner had failed to establish by a preponderance of the evidence 24 that he was not present at the time of the murder. “The facts and circumstances of how 25 the entry was made, where the bedroom was, and the footprints and fingerprints of both 26 Defendants instead show beyond reasonable doubt that both were present when Ms. 27 Kaplan was murdered.” (Id.) Addressing non-statutory mitigation, the court found that 28 Petitioner had proven the following factors: (1) lack of a prior felony conviction, (2) “the - 18 - 1 fact that alcohol and perhaps other substances were used prior to the break-in,” (3) the 2 fact that the jury was instructed on felony-murder, and (4) the question of whether 3 Petitioner engaged in the actual strangulation. (Id. at 37-38.) As to the third and fourth 4 factors, the court further found that Petitioner “was a major participant in the felony 5 committed, and that his involvement led to either the actual participation in the 6 strangulation or the other violence perpetrated on the victim, or indicated reckless 7 indifference to human life by the Defendant’s actions, when in his presence the victim 8 was being murdered.” (Id.) Under these circumstances, the court concluded, Petitioner’s 9 proven mitigating factors were not sufficiently substantial to call for leniency. (Id. at 39.) 10 On direct appeal, the Arizona Supreme Court upheld the trial court’s findings with 11 respect to the “cruel, heinous or depraved” aggravating factor and Petitioner’s death 12 eligibility under Tison v. Arizona, 481 U.S. 137 (1987) (holding that death penalty may 13 be imposed if a defendant convicted of felony murder was a major participant in the 14 underlying felony and acted with reckless indifference to human life). Salazar, 173 Ariz. 15 at 412-13, 844 P.2d at 579-80. As to mitigation, the court discussed each of Petitioner’s 16 proffered factors. 17 Regarding intoxication, the court found that Petitioner was not significantly 18 impaired and appreciated the wrongfulness of his conduct because two witnesses testified 19 at trial that Petitioner did not appear intoxicated; Petitioner testified in detail about what 20 went on in the house, including in which hand he held a lighter to guide himself; and 21 Petitioner “was thinking clearly enough to discard his shoes so that they could not be 22 matched to the prints he knew he had made at the house.” Id. at 413, 844 P.2d at 580. The 23 court further rejected Petitioner’s “attempt to downplay his degree of participation in the 24 crime,” reiterating that he was a major participant. Id. Similarly, the court rejected 25 Petitioner’s claim that he believed the house was unoccupied and therefore could not 26 foresee the victim’s death: “After entering the occupied house, defendant either 27 personally beat and strangled the victim or, at the very least, watched or helped while 28 Davis killed her.” Id. at 414, 844 P.2d at 581. Lastly, the court found that Petitioner’s - 19 - 1 young age was not mitigating in light of his average intelligence, history of juvenile and 2 adult misdemeanor offenses, and his “close and supportive family.” Id. State PCR Proceedings 3 4 In his first state PCR petition, Petitioner argued that defense counsel Hurd and 5 Redondo provided constitutionally deficient representation at sentencing for (1) failing to 6 object to the trial court’s consideration at sentencing of evidence produced during co- 7 defendant Davis’s trial, (2) not presenting evidence at the mitigation hearing regarding 8 the effects of poly-substance abuse and Petitioner’s state of mind, and (3) calling a 9 detrimental witness at the mitigation hearing. (ROA II at 273-74, 278.) In support of the 10 petition, PCR counsel proffered an affidavit from Petitioner, which claimed that trial 11 counsel consulted with him only on a limited basis, that he knew of witnesses who could 12 and should have been utilized at sentencing to testify to his character, and that he was 13 extremely intoxicated at the time of the crime and had a long history of alcohol abuse but 14 counsel failed to present expert testimony in this regard at sentencing. (Id. at 339.) 15 Counsel also submitted an affidavit from Dr. Crago, who was uncertain why he was not 16 called as a witness. (Id. at 441.) Dr. Crago avowed that Petitioner “could easily become 17 psychotic” under stress and drug intoxication. (Id.) 18 The trial court conducted a two-day evidentiary hearing on Petitioner’s IAC 19 claims. Petitioner called Dr. Crago, PCR investigator Ron Sanchez, and trial counsel 20 Hurd as witnesses. He also proffered an investigative report prepared by Sanchez that 21 included Petitioner’s available school records and summaries of interviews between 22 Sanchez and several of Petitioner’s friends and family members. The State submitted the 23 pretrial Rule 11 reports of Drs. Gurland and LaWall and presented the testimony of Dr. 24 Boyer. 25 26 27 28 At the PCR hearing, Hurd explained what his strategy was at sentencing, and why he did not offer Dr. Crago’s report at the aggravation/mitigation hearing: [M]y strategy at sentencing wasn’t much different from what it had been at trial. Our defense the whole time had been that Mr. Salazar did not do it, that though he may be guilty of felony murder or he may be guilty of - 20 - 1 5 murder because he hung around with Davis, Davis is the one that did it. And that strategy did not change when it came time for sentencing. At no point do I recall presenting any argument or evidence to the Court that, yes, Mr. Salazar did it, but the reasons he did it is because of intoxication or for any other reason. I believe we pretty much stuck to our original defense and that is: If you don’t know who did it, Judge, then you can’t give this guy the death penalty; give it to the other guy. 6 (Doc. 212, Ex. D at 137.) Hurd would not have wanted the sentencing judge to know Dr. 7 Crago’s conclusion that Petitioner was prone to dangerously assaultive behavior because 8 “it wasn’t consistent with the nonviolent nature of [Petitioner] that [the defense was] 9 trying to portray.” (Id. at 152-53.) Counsel also told the PCR court that he did not 2 3 4 10 investigate Salazar’s school or medical records. (Id. at 142.) 11 The PCR court found counsel’s strategy of pursuing a nonparticipation defense, 12 including not presenting Dr. Crago as a witness at the sentencing stage, was a reasonable, 13 tactical decision. (Doc. 212, Ex. G at 3.) The PCR court denied Petitioner’s motion for 14 rehearing on this issue, explaining that “there were a significant number of points which 15 Dr. Crago’s testimony would potentially have undermined for the defense” such that the 16 “dubious benefit of Dr. Crago’s testimony to the defense carried with it a significant 17 danger of undermining several portions of the defense’s case.” (Doc. 212, Ex. H at 1–2.) 18 The Arizona Supreme Court agreed that “not calling Dr. Crago was both professionally 19 reasonable and non-prejudicial.” Salazar, 173 Ariz. at 416, 844 P.2d at 583. 20 Federal Habeas Proceedings 21 In Petitioner’s second amended petition he alleged several instances of ineffective 22 assistance of counsel in preparation for and throughout the sentencing proceedings. (Doc. 23 114.) Petitioner argued that counsel failed to conduct an investigation into Petitioner’s 24 background, to uncover mitigating, psychiatric and childhood information, and to present 25 that information at the penalty phase. (Doc. 114 at 24.) Petitioner further argued that 26 counsel had not provided mental health experts with access to the family and its history, 27 as well as to an honest picture of Petitioner. (Doc. 114 at 25.) These allegations were 28 construed as a failure to investigate and present evidence of Petitioner’s social - 21 - 1 background (childhood, school records, criminal history, family problems) (Claim A-24) 2 and a failure to provide mental health experts with a complete picture of Petitioner’s 3 background (Claim A-27). (Doc. 121 at 11-12.) The Court found Claims A-24 and A-27 4 procedurally defaulted and rejected Petitioner’s argument that the ineffective assistance 5 of PCR counsel could serve to excuse the default. (Doc. 121 at 18–20, 33; see also Doc. 6 133). In addition to Claims 24 and 27, Petitioner alleged that counsel rendered ineffective 7 assistance by continuing the nonparticipation theory at the penalty phase (“Claim A-21”) 8 and failing to present evidence of Petitioner’s psychological problems and character 9 when intoxicated (“Claim A-22”), both of which “strongly suggested that he was unable 10 to control his violent behavior.” (Doc. 137 at 23-24.) Finding Claims A-21 and A-22 11 properly exhausted, the Court considered the claims on the merits. 12 Reviewing the evidence, this Court rejected Petitioner’s contention that Hurd 13 failed to conduct an investigation or confer with anyone about the mitigation strategy. 14 (Doc. 177 at 39.) The Court also rejected Petitioner’s conclusory assertions that counsel 15 failed to investigate mental impairment and intoxication as potential mitigating factors. 16 (Id.) The Court found Petitioner’s assertion that counsel neglected to investigate and 17 present evidence regarding Petitioner’s “dysfunctional” upbringing, history of drug and 18 alcohol abuse, good character when sober, and good conduct during pretrial incarceration 19 not properly exhausted. (Id. at 39 n.17.) The Court also explained that this argument was 20 based on evidence that was in fact before the sentencing judge via the reports of Drs. 21 Boyer and Ginnetti and the presentence report, including the letters from friends and 22 family appended thereto. (Id.) Finally, the Court found that the evidence supported 23 counsel’s decision to continue the nonparticipation theory at the penalty phase in lieu of 24 admitting guilt and asserting that voluntary intoxication rendered him unable to control 25 his conduct. (Doc. 177 at 46.) The Court denied the habeas petition, and granted a 26 certificate of appealability as to Claims A-21 and A-22. (Doc. 177 at 69.) Petitioner 27 appealed this Court’s decision denying relief, and review of these claims remains pending 28 before the Ninth Circuit while this Court reconsiders Claims A-24 and A-27 on limited - 22 - 1 remand. (See Doc. 195.) 2 Relying on new evidence submitted with his supplemental brief, Petitioner now 3 asserts that if sentencing counsel or PCR counsel had conducted an adequate mitigation 4 investigation, they could have presented a more complete and compelling mitigation 5 picture, and that there was no reasonable strategic reason for counsel not to do so. 6 Specifically, Petitioner asserts that his background is “filled with mitigating information,” 7 in particular a severely dysfunctional family background, supportive of a diagnosis of 8 Fetal Alcohol Syndrome (“FAS”) (Doc. 200 at 13–14.) Petitioner experienced significant 9 problems in school and suffered intense and frequent headaches from a very young age 10 and used to bang his head as a young child. (Id., Ex. 12 at ¶ 2–3; Ex. 13 at ¶¶ 7–8; Ex. 11 45.) Petitioner’s parents were heavy drinkers who left their children unsupervised. (Id., 12 Ex. 86 at ¶¶ 4–5, Ex. 84 at ¶ 11, Ex. 31 at ¶ 14.) Petitioner’s mother drank excessively 13 throughout her entire pregnancy. (Doc. 200, Ex. 18 at ¶ 8; Ex. 84 at ¶3; Ex. 108 at ¶2-3; 14 Ex. 31 at ¶ 3.) Beginning at very early ages, Petitioner, and almost all of his siblings, had 15 alcohol or substance abuse issues. (Id., Ex. 86 at ¶ 6; Ex. 111 at ¶¶ 4 and 8; Ex. 31 at ¶¶ 16 13, 20-21.) Petitioner’s parents were harsh, mean, emotionally distant and abusive, and 17 physically punished and humiliated their children. (Id., Ex. 84 at 7, 11; 86 at ¶¶ 4, 5, 6, 18 10; Ex. 31 at ¶¶ 7, 9, 10, 12.) Petitioner was sometimes locked outside the home, and had 19 to find food and shelter on his own. (Id., Ex. 31 at ¶ 8.) “Random” people, many of them 20 drunks, passed through Petitioner’s crowded household, which consisted of Petitioner, his 21 parents, and eight other children in a three bedroom house. (Id., Ex. 31 at ¶ 14–15.) Some 22 of these outsiders molested the children in the home, and there was sexual abuse among 23 the siblings. (Id., Ex. 31 at ¶ ¶ 16, 28.) 24 Dr. Crago now states that, in preparing his report during the trial, which was 25 limited to the purpose of evaluating guilt phase defenses, he was provided with very little 26 collateral information regarding Petitioner and his background. (Doc. 200-1, Ex. 1 at ¶ 1.) 27 Dr. Crago declares that, having now reviewed the additional documentation, there is 28 evidence of broad psychopathology in Petitioner’s background: - 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Petitioner’s] mother was a heavy drinker throughout his pregnancy. [Petitioner] manifested odd behaviors such as head banging and did not fit in with the rest of the family. He struggled in school and appeared to have a learning disability. He had significant problems with headaches which were never addressed medically. The importance of this information is that individuals who have damage to their central nervous system such as the effects of alcohol on the fetus and/or the effects of constant head banging not only have difficulty with cognitive tasks but also with emotional regulation. Specifically they often had difficulties with impulse control and judgment. These injuries or deficits may have influenced [Petitioner] at the time of the crime. (Doc. 200-1, Ex. 1 at ¶ 4.) Dr. Crago states that had he been provided with this critical background information, he could have presented a report about the high level of family dysfunction in Petitioner’s household, and explained that this level of dysfunction likely exacerbated Petitioner’s neuropsychological problems. (Id., Ex. 1 at ¶ 5.) At federal habeas counsel’s behest, neuropsychologist Antonio E. Puente, Ph.D., evaluated Petitioner by conducting multiple interviews, neuropsychological testing, and an extensive record review, including Petitioner’s legal history, family and developmental history, psychological and psychiatric evaluation and history, education records, and medical history. (Id., Ex. 12.) Dr. Puente also interviewed members of Petitioner’s family and concluded that the “overall impression of the family is that it consisted of chaos and psychopathology.” (Id., Ex. 12 at 3.) Dr. Puente found a significant historical record of psychopathology on the part of most of the family members, and that depression, familial abuse, and alcoholism were rampant among family members. (Id., Ex. 12 at 4.) Dr. Puente opines that the likelihood of FAS was suggested by the evidence that Petitioner’s mother consumed large quantities of alcohol during her pregnancy with Petitioner. (Id., Ex. 12 at 10.) Dr. Puente explains that the results of testing reveal “significant problems with learning and memory, attention, and problem solving/organization (i.e., executive functions). There is evidence of learning disability.” (Id., Ex. 9 at 12.) Petitioner’s “[i]ntelligence scores range from mild intellectual deficiency (retardation) to low normal . . . major deficiencies are found when - 24 - 1 novelty, time and stressful situations require engagement of executive functions.” (Id. at 2 9.) 3 Dr. Puente further opines that the integration of extensive historical and face-to- 4 face as well as collateral interviews together with the administration of numerous 5 neuropsychological tests reveals “a powerful, consistent, and historically, as well as 6 scientifically, validated conclusion . . . of long-standing and serious brain dysfunction, 7 beginning before birth, and evolving into subsequent learning disability and intellectual 8 limitations, poly-substance abuse, and significant pervasive mental disorder, which is in 9 the form of depression and psychosis.” (Doc. 200-1, Ex. 12, at 10.) Dr. Puente has 10 diagnosed Petitioner with Fetal Alcohol Syndrome, Borderline Intellectual Deficiency, 11 Learning Disability, History of Alcohol and Poly-substance Abuse, Major Depressive 12 Disorder, Mixed Personality Disorder, Mild Cognitive Impairment, and Psychosis, Not 13 Otherwise Specified. (Doc. 200-1, Ex. 12 at 10-11.) 14 III. Scope of Remand 15 Respondents assert that Petitioner’s supplemental briefing reaches beyond the 16 scope of remand to impermissibly attack the state court’s ruling on Claims A-21 and A- 17 22, claims which were previously denied by this Court and are currently pending appeal 18 in the Ninth Circuit. (Doc. 212 at 12.) The Court disagrees. 19 “The rule of mandate requires a lower court to act on the mandate of an appellate 20 court, without variance or examination, only execution.” United States v. Garcia-Beltran, 21 443 F.3d 1126, 1130 (9th Cir. 2006) (quoting In re Sanford Fork & Tool Co., 160 U.S. 22 247, 255 (1895)). Thus, in the instant matter, the Court cannot address the issues raised 23 by Petitioner in his supplemental briefing if so doing would exceed the boundaries as 24 delineated by the mandate. However, “courts are often confronted with issues that were 25 never considered by the remanding court.” United States v. Kellington, 217 F.3d 1084, 26 1093 (9th Cir. 2000) (citing Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir. 27 1997)). Thus, upon receipt of a mandate this Court is free to do anything not “foreclosed 28 by” the mandate or that does not run counter to the “spirit” of the circuit court’s decision. - 25 - 1 Cassett v. Stewart, 406 F.3d 614, 621 (9th Cir. 2005) (quoting Kellington, 217 F.3d at 2 1092-93)). Additionally, though not cited by Respondents but arguably applicable in this 3 case, the “law of the case doctrine,” generally precludes courts from exercising their 4 discretion to reconsider an issue previously decided by the same court. See Milgard 5 Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990). Because 6 the supplemental briefing does not ask this Court to re-examine its previous ruling, 7 neither the “rule of mandate” nor the “law of the case doctrine” preclude this Court from 8 examining counsel’s alleged ineffective performance raised in the supplemental briefing. 9 As Respondents point out, at issue in this Court’s previous ruling was sentencing 10 counsel’s strategy of pursing a nonparticipation theory at sentencing and not presenting 11 Dr. Crago as a mitigation witness. Critical to this Court’s ruling denying those claims was 12 the state court’s factual finding that defense counsel’s decision to do so was tactical—a 13 decision counsel made because he feared that Dr. Crago’s testimony would have 14 potentially undermined the defense strategy by highlighting differences between 15 Petitioner’s trial testimony and statements that were made to Dr. Crago, and would have 16 presented Petitioner as “reactive” with “aggressive or hostile impulses.” (See Doc. 177 at 17 34-37) (citing ROA II at 253–54)). Further, this Court found that Dr. Crago’s testimony 18 would have been valuable only to the extent Petitioner could show he was extremely 19 intoxicated at the time of the crime, and there was little reliable evidence to support this 20 contention. (Id. at 43.) 21 Respondents assert that Petitioner’s new evidence simply bolsters Dr. Crago’s 22 previous opinions and is cumulative to the evidence of neurological impairments 23 presented in support of the exhausted claims. This contention is contradicted by the 24 evidence. Dr. Crago prepared his report in reliance primarily on Petitioner’s self- 25 reporting. The report presented a clinical picture of a “disturbed individual” with a mixed 26 personality disorder and clear demonstration of schizophrenic tendencies (see Doc. 200- 27 1, Ex. 3), and Dr. Crago’s “opinion that Petitioner may not have been in control of his 28 conduct hinged on whether Petitioner was actually intoxicated.” (Doc. 177 at 47.) - 26 - 1 However, in direct contrast to the present factual allegations suggesting Petitioner suffers 2 significant neurological impairments of FAS and organic brain damage, Dr. Crago 3 explained in his 1987 report that he found no evidence to suggest Petitioner’s cognitive 4 functioning was affected by residual brain damage or that his performance was affected 5 by educational deficits. That Dr. Crago’s proffered declaration seems to contradict this 6 conclusion may perhaps be explained by Dr. Crago’s acknowledgment that the 7 information he received at the time he prepared his 1987 report was in direct contrast to 8 the information he has now received about the high level of family dysfunction in 9 Petitioner’s household. (See Doc. 200-1, Ex. 1 at ¶ 5.) Accordingly, the Court concludes 10 the new evidence is not merely cumulative because the evidence goes beyond “simply 11 bolster[ing] Dr. Crago’s opinions” (see Doc. 212 at 14), by contradicting some of the 12 factual allegations asserted in Petitioner’s exhausted claims of ineffective assistance at 13 sentencing, and alleging, specifically, that counsel failed to investigate and present 14 substantial mitigating evidence that, if presented to a mental health expert, would have 15 suggested a diagnosis of FAS and organic brain damage. 16 Petitioner asserts in his supplemental reply brief that the “whole point of 17 [Petitioner’s] Martinez claim is that his mental health diagnoses and background 18 evidence was not accurately presented at sentencing or at post-conviction,” and that the 19 “claims presented now contrast significantly with the bare-bones presentation at post- 20 conviction.” (Doc. 217 at 10–11.) Petitioner suggests that this new evidence places 21 Petitioner’s claims in a significantly stronger evidentiary posture, permitting them to 22 benefit from de novo review under Martinez. (Id. at 11) (citing Dickens, 740 F.3d at 23 1317–20). In Dickens, the court held that a petitioner can establish that a “previously 24 exhausted IAC claim” may be altered, rendering the claim unexhausted and potentially 25 barred from federal review, “if new factual allegations either fundamentally alter the 26 legal claim already considered by the state courts, or place the case in a significantly 27 different and stronger evidentiary posture than it was when the state courts considered it.” 28 740 F.3d at 1318–19 (citations and internal quotation marks omitted). The Court agrees - 27 - 1 that the specific factual allegations of deficient performance raised by Petitioner in the 2 supplemental briefing—the failure to investigate evidence of Petitioner’s dysfunctional 3 family background and provide that evidence to mental health experts—render these 4 sentencing IAC claims quite distinct from the claims the state court decided and that this 5 Court previously denied. 6 Specifically, the focus of the claims this Court previously ruled on was whether 7 sentencing counsel was ineffective for failing to present mental health evidence from Dr. 8 Crago that would have established that Petitioner was extremely violent and volatile 9 when intoxicated. This bears little resemblance to the newly-developed IAC claim 10 presented here—that counsel failed to conduct a complete social background 11 investigation which would have provided mental health experts with information 12 necessary to suggest and support a diagnosis of FAS and organic brain damage. 13 Accordingly, the newly-developed claim is significantly different and features stronger 14 evidence of potentially overlooked mitigation than evidence of Petitioner’s propensity 15 towards violence when intoxicated. See Dickens, 740 F.3d at 1317–19 (finding that 16 general allegations concerning sentencing counsel’s failure to “direct the work of the 17 court-appointed psychologist” and adequately investigate petitioner’s background bear 18 little resemblance to allegations that suggest petitioner suffered from FAS and organic 19 brain damage). 20 As the Court has pointed out, the claims Petitioner exhausted raised only 21 conclusory assertions that counsel failed to investigate mental impairment and the 22 possibility that Petitioner became violent when intoxicated during sentencing. (Doc. 177 23 at 39.) Petitioner now presents more specific, compelling, and fundamentally different 24 allegations of IAC than previously raised and decided by the Court. Thus, the Court 25 rejects Respondents’ assertion that these issues are outside the scope of remand because 26 they have already been decided by the Court and are pending review on appeal. 27 Petitioner’s new factual allegations and new evidence, however, raise an issue not 28 addressed in the supplemental briefing by either party: whether the new facts and - 28 - 1 evidence presented in this supplemental briefing, which were not previously alleged in 2 Petitioner’s second amended petition, are properly before the Court in the first instance. 3 Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is 4 obligated to specify in a federal habeas petition all grounds for relief, as well as the facts 5 supporting each of these grounds. See Mayle v. Felix, 545 U.S. 644, 661 (2005) 6 (observing that Rule 2(c) requires pleading “separate congeries of facts” in support of 7 each ground for relief); Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (observing that 8 “notice” pleading in habeas is insufficient and that petition “is expected to state facts that 9 point to a ‘real possibility of constitutional error’”) (quoting Advisory Committee Note to 10 Rule 4, Rules Governing Section 2254 Cases). 11 A plain reading of the factual allegations in the second amended petition and the 12 supplemental briefing demonstrates that the claims have little in common other than the 13 basic premise that sentencing counsel failed to conduct a constitutionally sufficient 14 investigation into relevant mitigating evidence. The second amended petition asserted 15 ineffectiveness based on the “failure to conduct an investigation into Petitioner’s 16 background, to uncover and present mitigating psychiatric and childhood information, 17 and to present that information at the penalty phase” of Petitioner’s trial, but did not 18 elaborate on what the consequence of this failure was—what historical information an 19 investigation would have uncovered and what the mental health experts might have done 20 had they been provided with that information. (See Doc. 114 at 24–25.) Neither did the 21 second amended petition allege any failure to uncover evidence of specific, severe family 22 dysfunction9 or specific neurological impairments. (See id.) It appears that Petitioner’s 23 allegations concerning counsel’s failure to investigate Petitioner’s social background and 24 provide that information to mental health experts, effectively state new claims for relief. 25 Petitioner has not requested permission to amend, and it is unclear whether amendment 26 27 28 9 Petitioner did provide detail regarding the stabbing death of his brother and the effect it had on Petitioner and his family, as well as a chronicle of Petitioner’s drug and alcohol abuse and addiction in his opening brief on the merits of his habeas petition. (See Doc. 137 at 24–25.) - 29 - 1 would be warranted under Rule 15 of the Federal Rules of Civil Procedure. See Bonin v. 2 Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (undue delay and futility are considerations in 3 determining whether district court abused discretion in denying amendment of 28 U.S.C. 4 § 2254 habeas corpus petition); see also Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 5 1996) (post-judgment Rule 15(a) motion to amend may only be considered if judgment 6 first reopened under Rule 59 or 60). 7 As a result of the new allegations raised in Petitioner’s supplemental Martinez 8 brief, the Court finds that additional briefing is necessary to determine whether the 9 allegations are properly before the Court. The parties are therefore directed to file 10 simultaneous briefs, limited to seventeen pages, on the following issues: (1) 11 12 claims that were not alleged in the second amended petition? (2) 13 14 Do Claims A-24 and A-27, as alleged in the supplemental brief, raise new If so, is amendment of the second amended petition to include the new factual allegations appropriate at this stage of the habeas proceedings? 15 The Court discourages repetition of facts and argument already briefed; the parties 16 should instead simply reference prior pleading as necessary. As previously mentioned, 17 the parties may also include briefing on the impact of the recent decision in Runningeagle 18 v. Ryan on the Court’s determination whether Martinez is applicable to Petitioner’s 19 claims. 20 Accordingly, 21 IT IS ORDERED that, no later than thirty (30) days following the filing of this 22 Order, the parties shall each file a brief, not in excess of seventeen (17) pages, regarding 23 the two issues set forth above. 24 ... 25 ... 26 ... 27 ... 28 ... - 30 - 1 IT IS FURTHER ORDERED that the parties may choose to address the impact of 2 Runningeagle v. Ryan, No. 07-99026, 2016 WL 3213095 (9th Cir. June 10, 2016) on the 3 applicability of Martinez to Petitioner’s claims in their supplemental briefing. 4 5 Dated this 7th day of July, 2016. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 31 -

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