Greene, et al v. Schriro, et al

Filing 140

ORDERED that Claims 1, 4(A), 4(C)(1), 4(C)(2), and 5 are denied as procedurally defaulted and barred from federal review. IT IS FURTHER ORDERED granting Greene's request to expand the record. The record is expanded to include Exhibits 1-54 (Docs . 116-118.) Greene's requests for discovery and an evidentiary hearing are denied. IT IS FURTHER ORDERED that Greene's amended petition for writ of habeas corpus is granted unless the State of Arizona, within 120 days from the entry of this Judgment, initiates proceedings either to correct the constitutional error in Greene's death sentence or to vacate the sentence and impose a lesser sentence consistent with the law. IT IS FURTHER ORDERED that the Clerk of Court shall enter Judg ment accordingly. IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to Tracie K. Lindeman, Clerk of the Arizona Supreme Court, 1501 W. Washington Street, Phoenix, Arizona 85007-3329. Signed by Judge John C Hinderaker on 8/13/21. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Beau John Greene,

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Petitioner,

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v.

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No. CV-03-00605-TUC-JCH
ORDER

David Shinn, et al.,

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DEATH PENALTY CASE

Respondents.

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This case is before the Court on remand from the Ninth Circuit Court of Appeals.

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Petitioner Beau John Greene is an Arizona death row inmate. On March 31, 2010,

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this Court denied his amended petition for writ of habeas corpus. (Doc. 93.) On December

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1, 2014, the Ninth Circuit granted Greene’s request for a “limited remand,” ordering the

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Court to reconsider, in light of intervening law, Claim 4(A) in part (alleging ineffective

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assistance of trial counsel for failing to present expert testimony at trial) and Claim 4(C) in

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part (alleging ineffective assistance of trial counsel for failing to investigate and present

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mitigating evidence and failing to counter the aggravating factor). (Doc. 104.) The

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intervening law cited by the Ninth Circuit includes Martinez v. Ryan, 566 U.S. 1 (2012),

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which, as discussed below, held that the ineffective assistance of post-conviction counsel

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can excuse the default of a claim of ineffective assistance of trial counsel.

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On December 29, 2015, the Ninth Circuit issued its en banc opinion in McKinney v.

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Ryan, 813 F.3d 798 (9th Cir. 2015). McKinney held that the Arizona Supreme Court, for a

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period of time which included its consideration of Greene’s direct appeal, had violated

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Eddings v. Oklahoma, 455 U.S. 104, 114 (1982), in its capital sentencing analysis by

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requiring a defendant to show a causal nexus between his proffered mitigating evidence

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and the crime. On October 27, 2016, this Court ordered Greene to file a motion with the

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Ninth Circuit seeking expansion of the remand to include the impact of McKinney on his

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habeas petition. (Doc. 127.)

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On December 16, 2016, the Ninth Circuit granted in part Greene’s motion to expand

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the remand, directing this Court to address (1) the impact of McKinney on Greene’s petition

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and (2) whether, in light of Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015),

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reconsideration is warranted as to Claim 5 (alleging that trial counsel had a conflict of

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interest). (Doc. 128.)

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The issues have been fully briefed. (Docs. 116, 121, 126, 132, 135, 137.)
BACKGROUND

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Greene was convicted and sentenced to death for the murder of Roy Johnson, a

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music professor at the University of Arizona in Tucson. The following account of the facts

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surrounding the crime is based on the decision of the Arizona Supreme Court affirming

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Greene’s murder conviction and death sentence, State v. Greene, 192 Ariz. 431, 967 P.2d

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106 (1998), and this Court’s review of the record.

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Johnson was last seen around 9:30 p.m. on February 28, 1995, leaving a church

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where he had just given an organ recital. His wife expected him home before 10:00 p.m.,

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but he did not return. Four days later, authorities found his body lying in a wash. Greene

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admitted at trial that he killed Johnson.

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On the day of the murder, Greene’s friends, Tom Bevan and Loriann Verner, told

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him he could no longer stay in their trailer outside of Tucson. A drug dealer had threatened

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to shoot Greene over an outstanding debt, and Bevan and Verner feared that Greene’s

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presence in their trailer would ruin their relationship with the dealer. Greene stole a truck

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and drove to Tucson where the truck broke down. Sometime that night, during Johnson’s

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drive home from the concert, he encountered Greene.

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Greene testified that he had been using methamphetamine continuously for several

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days and was suffering from withdrawal. He was resting in a park when Johnson stopped

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his car and approached him. According to Greene, Johnson wanted to perform oral sex on

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him and offered to pay for it. Greene accepted and the two drove to a secluded parking lot

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in Johnson’s car. Greene testified that he changed his mind and told Johnson that he would

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not follow through. In response, Johnson purportedly smiled and touched Greene’s leg. At

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that point, Greene “freaked out” and struck Johnson several times in the head with his fist.

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He moved Johnson’s body to the back of the car and drove to a wash where he dumped the

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body. He walked back to the car and drove away. According to Greene, he then realized he

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needed money so he returned to the wash, walked down to the body, and stole Johnson’s

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wallet.

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After dumping the body, Greene drove Johnson’s car directly to Bevan and Verner’s

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trailer, where he told Bevan about the killing. Greene asked Bevan for some clean shoes.

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He also took a rug to cover the bloody car seats.

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Greene left the trailer and headed for K-mart, the first of several stops he made on

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a shopping spree using the victim’s cash and credit cards. To explain the discrepancy

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between his signature and those on the credit cards, Greene wrapped his hand with K-Y

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jelly and gauze to simulate a burn injury. He bought clothes, food, camping gear, a scope

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and air rifle, car cleaner, and a VCR, which he later traded for methamphetamine. He

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eventually abandoned Johnson’s car in the desert. Several days later, the police arrested

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Greene at a friend’s house.

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The trial evidence undermined Greene’s version of the killing. First, medical

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testimony indicated that the damage to the victim’s skull was inflicted by a heavy flat

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object, not by a fist. The bones of a fist striking a person’s head will shatter before the thick

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bones of the skull, and Greene’s hands were uninjured. Second, a single set of tire tracks

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and footprints entered and left the wash where the body was found, suggesting that Greene

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did not return for the wallet but had it with him when he left immediately after the murder.

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Third, Greene told Bevan he beat someone to death with a club.

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At trial, Johnson’s wife, S.J., testified that she “laughed out loud” when she heard

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Greene’s allegations about her husband’s actions. (RT 3/12/96 at 92.) She testified that her

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husband was “a man of great honor and integrity, of great moral principle, of deep, abiding

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faith,” and that he was as “devoted to [her] as [she] was to him.” (Id.) She claimed there

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were “no secrets” between her and her husband and that she knew him well enough “to

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know whether he had a secret side to him as was described in court.” (Id. at 92–93.) She

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stated, “We were not only husband and wife, we were the very, very best of friends.” (Id.

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at 93.)

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The jury convicted Greene of kidnapping, robbery, and first-degree murder. The

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trial judge sentenced him to death for the murder and terms of imprisonment for the other

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counts.1 On direct appeal, the Arizona Supreme Court reversed the kidnapping conviction

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but otherwise affirmed. Greene, 192 Ariz. 431, 967 P.2d 106.

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Greene filed a petition for post-conviction relief (PCR) in state court in August

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2000, and an amended petition in December 2001. Following an evidentiary hearing, the

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PCR court denied relief in January 2003. In December 2003, the Arizona Supreme Court

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summarily denied a petition for review. Greene then initiated the instant habeas

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proceedings, filing a petition for writ of habeas corpus on December 5, 2003, and an

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amended petition on December 21, 2004. (Docs. 1, 82.)

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DISCUSSION
I.

Martinez Remand

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In his supplemental Martinez brief, Greene raises, along with the two ineffective

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assistance of counsel claims that were the subject of remand, Claim 1, alleging a Brady

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violation, and Claim 5, alleging that trial counsel had a conflict of interest. 2 (Doc. 116 at

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At the time of Greene’s trial, Arizona law required trial judges to make all factual findings
relevant to capital punishment and to determine the sentence. Following the United States
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that a jury
must determine the existence of facts rendering a defendant eligible for the death penalty,
Arizona’s sentencing scheme was amended to provide for jury determination of eligibility
factors, mitigating circumstances, and sentence.
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Brady v. Maryland, 373 U.S. 83, 87 (1963), held that a defendant’s due process rights are
violated when a prosecutor fails to disclose evidence that is material to guilt or punishment.
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18, 106.) As noted, Claim 5 was included in the Ninth Circuit’s second remand order. (Doc.

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128.)

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Respondents argue that Greene is not permitted to expand the limited remand by
adding Claim 1. (Doc. 121 at 14–15.) The Court agrees.

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The Ninth Circuit has “repeatedly held . . . that a district court is limited by this

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court’s remand in situations where the scope of the remand is clear.” United States v.

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Thrasher, 483 F.3d 977, 982–83 (9th Cir. 2007) (quoting Mendez-Gutierrez v. Gonzales,

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444 F.3d 1168, 1172 (9th Cir. 2006)). “A district court that has received the mandate of an

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appellate court cannot vary or examine that mandate for any purpose other than executing

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it.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) (citing United States

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v. Cole, 51 F.3d 178, 181 (9th Cir. 1995)); see Creech v. Ramirez, No. 1:99-CV-00224-

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BLW, 2017 WL 1129938, at *11 (D. Idaho Mar. 24, 2017). Greene is not entitled to expand

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the remand to include Claim 1.

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In addition, as Greene acknowledges, Martinez applies only to claims of ineffective

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assistance of trial counsel. It has not been expanded to excuse the default of other types of

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claims. Pizzuto, 783 F.3d at 1177 (noting that the Ninth Circuit has “not allowed petitioners

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to substantially expand the scope of Martinez beyond the circumstances present in

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Martinez”). In fact, the Ninth Circuit has specifically held that Martinez does not apply to

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a defaulted Brady claim. Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013)

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(explaining that only the Supreme Court can expand the application of Martinez).

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Accordingly, the Court will not consider Claim 1, which remains procedurally
defaulted and barred from federal review.

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A.

Applicable law

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1.

Martinez v. Ryan

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Federal habeas review is generally unavailable for a claim that was not raised in

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state court and is therefore procedurally defaulted. In such situations, review is barred

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unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

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justice that excuses the default. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Coleman

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held that ineffective assistance of counsel in post-conviction proceedings cannot establish

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cause for a claim’s procedural default. Id.
In Martinez, however, the Supreme Court announced a new, “narrow exception” to

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that rule. The Court explained that:

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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.

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566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 418 (2013).

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Accordingly, under Martinez an Arizona habeas petitioner may establish cause and

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prejudice for the procedural default of a claim of ineffective assistance of trial counsel by

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demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective

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assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting

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Martinez, 566 U.S. at 14); see, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059–60 (9th Cir.

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2017).

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To establish “cause” under Martinez, a petitioner must demonstrate that PCR

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counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Clabourne

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v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney, 813

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F.3d at 819. Strickland requires a demonstration “that both (a) post-conviction counsel’s

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performance was deficient, and (b) there was a reasonable probability that, absent the

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deficient performance, the result of the post-conviction proceedings would have been

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different.” Clabourne, 745 F.3d at 377 (citation omitted).

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To establish “prejudice” under the second prong of Martinez’s “cause and

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prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance

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of trial counsel claim is “substantial.” Id. In Martinez, the Supreme Court defined a

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“substantial” claim as a claim that “has some merit,” noting that the procedural default of

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an ineffective assistance claim will not be excused if the claim itself “is insubstantial, i.e.,

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it does not have any merit or . . . is wholly without factual support.” Martinez, 566 U.S. at

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14–16.

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The Court stated that the standard for finding a claim “substantial” is analogous to

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the standard for issuing a certificate of appealability. Id. at 14; see Detrich v. Ryan, 740

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F.3d 1237, 1245 (9th Cir. 2013). Under that standard, a claim is “substantial” if “reasonable

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jurists could debate whether the issue should have been resolved in a different manner or

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that the claim was adequate to deserve encouragement.” Id. (citing Miller-El v. Cockrell

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537 U.S. 322, 336 (2003)).

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A finding of “prejudice” for purposes of the “cause and prejudice” analysis, which

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requires only a showing that the underlying claim of ineffective assistance of trial counsel

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is substantial, “does not diminish the requirement . . . that petitioner satisfy the ‘prejudice’

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prong under Strickland in establishing ineffective assistance by post-conviction counsel.”

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Clabourne, 745 F.3d at 377.

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The Ninth Circuit has offered guidance in assessing whether “cause” exists under
Martinez. In Atwood, for example, the court explained:
In evaluating whether the failure to raise a substantial claim of ineffective
assistance of trial counsel in state court resulted from ineffective assistance
of state habeas counsel under Strickland, we must evaluate the strength of
the prisoner’s underlying ineffective assistance of trial counsel claim. If the
ineffective assistance of trial counsel claim lacks merit, then the state habeas
counsel would not have been deficient for failing to raise it. Further, any
deficient performance by state habeas counsel would not have been
prejudicial, because there would not be a reasonable probability that the
result of the post-conviction proceedings would have been different if the
meritless claim had been raised.

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870 F.3d at 1059–60; see Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021); see also

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Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would not be

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ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial

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counsel who was not constitutionally ineffective.”).

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In Runningeagle v. Ryan, 825 F.3d 970 (9th Cir. 2016), the court addressed the

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standard for finding PCR counsel’s performance prejudicial. The court explained that

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under Martinez:

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Although the prejudice at issue is that in PCR proceedings, this is a recursive
standard. It requires the reviewing court to assess trial counsel’s as well as
PCR counsel’s performance. This is because, for us to find a reasonable
probability that PCR counsel prejudiced a petitioner by failing to raise a trial-7-

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level IAC [ineffective assistance of counsel] claim, we must also find a
reasonable probability that the trial-level IAC claim would have succeeded
had it been raised.
Id. at 982; see Murray (Roger) v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018).

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Finally, as already noted, the Ninth Circuit has held that the Martinez exception also

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applies to procedurally defaulted claims alleging conflict-of-interest of trial counsel.

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Pizzuto, 783 F.3d at 1178. The exception has not, however, been extended to other types

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of claims. See Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (holding that Martinez does

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not apply to underlying claims of ineffective assistance of appellate counsel); Martinez

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(Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR

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counsel can constitute cause only to overcome procedurally defaulted claims of ineffective

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assistance of trial counsel.”); Hunton, 732 F.3d at 1126–27.

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2.

Ineffective Assistance of Counsel

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Claims of ineffective assistance of counsel are governed by the principles set out in

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Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show that counsel’s

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representation fell below an objective standard of reasonableness and that the deficiency

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prejudiced the defense. Id. at 687–88. The inquiry under Strickland is highly deferential.

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“A fair assessment of attorney performance requires that every effort be made to eliminate

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the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

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conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689;

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see Wong v. Belmontes, 558 U.S. 15, 16–17 (2009) (per curiam). The “standard is

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necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o

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particular set of detailed rules for counsel’s conduct can satisfactorily take account of the

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variety of circumstances faced by defense counsel or the range of legitimate decisions

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regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688–89.

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To establish deficient performance a petition must “show[] that counsel made errors

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so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

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the Sixth Amendment.” Strickland, 466 U.S. at 687. A petitioner must overcome “the

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presumption that, under the circumstances, the challenged action might be considered

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sound trial strategy.” Id. at 689 (quotation omitted). “The question is whether an attorney’s

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representation amounted to incompetence under ‘prevailing professional norms,’ not

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whether it deviated from best practices or most common custom.” Harrington v. Richter,

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562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).

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With respect to Strickland’s second prong, a petitioner must affirmatively prove

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prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different. A reasonable

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probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S.

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at 694. The petitioner “bears the highly demanding and heavy burden [of] establishing

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actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams

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(Terry) v. Taylor, 529 U.S. 362, 394 (2000)). For claims of ineffective assistance of counsel

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at sentencing in capital cases, prejudice is assessed by “reweigh[ing] the evidence in

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aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539

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U.S. 510, 534 (2003). The totality of the available evidence includes “both that adduced at

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trial, and the evidence adduced” in subsequent proceedings. Id. at 536 (quoting Williams

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(Terry), 529 U.S. at 397–98). “If the difference between the evidence that could have been

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presented and that which actually was presented is sufficient to ‘undermine confidence in

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the outcome’ of the proceeding, the prejudice prong is satisfied.” Duncan v. Ornoski, 528

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F.3d 1222, 1240 (9th Cir. 2008) (quoting Strickland, 466 U.S. at 694).

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Because an ineffective assistance of counsel claim must satisfy both prongs of

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Strickland, the reviewing court “need not determine whether counsel’s performance was

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deficient before examining the prejudice suffered by the defendant as a result of the alleged

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deficiencies.” Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness

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claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.;

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see Rhoades v. Henry, 638 F.3d 1027, 1049 (9th Cir. 2011).

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3.

Evidentiary Development

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In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that where the

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state court has denied a habeas petitioner’s claim under 28 U.S.C. § 2254(d), review by the

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federal court “is limited to the record that was before the state court that adjudicated the

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claim on the merits.”3 Id. at 181. However, where a state court has not adjudicated the

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merits of a claim because of a procedural bar, a district court may consider new evidence

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in determining whether the petitioner can overcome that bar. See Dickens v. Ryan, 740 F.3d

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1302, 1321 (9th Cir. 2014) (holding that Pinholster did not bar petitioner from presenting

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new evidence to support a cause-and-prejudice argument under Martinez because

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Pinholster applies only to claims previously “adjudicated on the merits in State court

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proceedings”); Detrich, 740 F.3d at 1246–47 (“Pinholster’s predicates are absent in the

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context of a procedurally defaulted claim in a Martinez case.”).

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In Dickens the court also rejected the argument that 28 U.S.C. § 2254(e)(2) barred

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evidentiary development, explaining that a petitioner seeking to show “cause” under

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Martinez is not asserting a “claim.”4 740 F.3d at 1321. (“A federal court's determination of

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whether a habeas petitioner has demonstrated cause and prejudice . . . is not the same as a

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hearing on a constitutional claim for habeas relief.”); see Woods v. Sinclair, 764 F.3d 1109,

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1138 n.16 (9th Cir. 2014) (explaining that neither Pinholster nor § 2254(e)(2)

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“categorically bar [a petitioner] from obtaining such a hearing or from presenting extra-

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record evidence to establish cause and prejudice for the procedural default. . . .”).

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Accordingly, contrary to Respondents’ argument (see Doc. 121 at 20, 33), in

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carrying out its analysis under Martinez, the Court will consider the entirety of the record,

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including the new evidence developed by Greene during these habeas proceedings, in

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support of the defaulted claims.

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B.

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Greene was represented at trial by Jill Thorpe and David Darby, with Darby as lead

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counsel. (RT 9/9/02 at 12, 17.) Thorpe was primarily responsible for the sentencing stage

Additional Facts

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3

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (“AEDPA”).
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28 U.S.C. § 2254(e)(2) severely limits the circumstances in which a federal habeas court
may hold an evidentiary hearing on claims not developed in state court.
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of the trial. (Id. at 12.) A third attorney, Julie Duval, also assisted the defense. (Id. at 86–

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87.)

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At trial, Greene testified that he used methamphetamine regularly from 1991 to the

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time of the murder. (RT 3/13/96 at 23.) He “[l]ived to get the drug.” (Id.) He used

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methamphetamine continuously in the days before the murder, with the latest use occurring

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on the morning of the crime. (Id. at 23–61.) During this period he slept and ate very little.

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(Id.)

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Greene described the effects of withdrawal from methamphetamine, testifying that

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users get “violent” and “crazy” when coming off the drug. (Id. at 49.) He testified that he

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was “jonesing,” or experiencing cravings, when he encountered the victim on the night of

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the twenty-eighth. (Id. at 89.) His goals at that point were to obtain drugs and win back his

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estranged girlfriend. (Id. at 162.) As noted above, Greene testified that he “freaked out”

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when Johnson put his hand on his leg and struck Johnson with his fist. (Id. at 90.) During

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the attack Greene “started almost hallucinating” and felt like he was “somewhere else.”

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(Id. at 196.)

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Following Greene’s conviction, the trial court held an aggravation/mitigation

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hearing. Defense counsel Thorpe presented testimony from Greene’s parents, John and

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Wilma; his ex-wife, Linda; his stepbrother; and his stepmother. Their testimony depicted

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an unstable and dysfunctional family life. Greene’s parents separated when he was twelve

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or thirteen. (RT 7/29/96 at 26, 45.) Afterwards, Greene lived primarily with his father, who

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worked as a trapper and migrated between Arizona and Washington state. (Id. at 21–24,

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45–46.) Greene’s parents decided he should live with his father because Wilma was afraid

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she would turn Greene into a “sissy” if he lived with her. (Id. at 46.) John testified that he

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had “no love lost for homosexuals,” and he assumed Greene shared that attitude. (Id. at

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26.)

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When she and John broke up, Wilma “went hog wild and got into the drugs and the

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drinking and the partying.” (Id. at 47.) She set a bad example by exposing Greene to drugs,

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including methamphetamine, and testified that her behavior contributed to Greene’s

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criminal conduct. (Id. at 47–48.)

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Wilma testified that John used the term “faggots” to describe homosexuals. She

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believed his feelings about homosexuality got across to Greene, who looked up to his father

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and wanted his respect. (Id. at 50–51.)
The witnesses also testified about Greene’s drug problem and its negative effect on

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his behavior and his family relationships. (Id. at 31–32, 48–49, 63–64.)

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They also offered humanizing testimony describing Greene’s positive character

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traits, including his intelligence, his talent as a motorcycle mechanic, his love for his

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children, and the absence of any prior violent behavior. (Id. at 27–29, 58–60, 73–74.)

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Greene’s ex-wife testified that his execution “would have a very bad effect on [her]

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children.” (Id. at 68.) In addition to this testimony, counsel submitted letters from Greene’s

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family, family photographs, and a “social history” consisting of a transcript of counsel’s

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interview of Greene about his “early history.”5 (Id. at 84–85.)

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The court continued the hearing so Greene could present two additional witnesses

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to support the defense theory that Johnson was gay and had propositioned Greene. Eddie

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Galvaz, a former employee of the Music Department, testified that Johnson would touch

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him on the shoulder and pat his buttocks. (RT 8/22/96 at 10.) According to Galvaz, who is

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gay, Johnson would converse with him while they were using urinals in the men’s room;

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he would give Galvaz a “little hug” “around the hip area” while Galvaz talked about the

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gay bars he frequented. (Id. at 11.) Galvaz testified that Johnson spoke about the “cute

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Mexican boys” around the school, and once commented about the “nice tight jeans” Galvaz

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was wearing in a photograph Johnson took. (Id. at 12–13.) Galvaz, who never reported

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these incidents, acknowledged that he had been fired from the University for fraud. (Id. at

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16.) Michael Schmitz was one of Johnson’s graduate advisees. He testified that he

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Co-counsel Thorpe interviewed Greene on June 8 and July 16 and 24, 1996. (Doc. 1172, Ex. 52.)
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suspected Johnson might be gay after an incident in which Johnson had them stand side by

2

side to see if a pair of Johnson’s jeans would fit Schmitz. (Id. at 25.)

3

In rebuttal, the State called Robert Sankey, a colleague and family friend who knew

4

Johnson very well. (Id. at 33.) Sankey testified that he never heard rumors or speculation

5

that Johnson was anything other than a decent family man, nor any suggestions that

6

Johnson was gay. (Id. at 34.)

7

In her closing argument, defense counsel Thorpe addressed, as mitigating

8

circumstances, Greene’s isolation as a child, the family’s lack of stability, and the negative

9

influence of his mother, who facilitated Greene’s drug and alcohol abuse, and father, whose

10

extreme and homophobic views Greene adopted. (Id. at 58–59.)

11

Thorpe also discussed an incident in which Greene, at around age thirteen, was at a

12

bar with his mother when he was picked up by a man who took him to his ranch and

13

sexually molested him.6 (Id. at 60.) She argued that this prior incident of sexual abuse was

14

going through Greene’s mind at the time he attacked Johnson. (Id. at 63.) Thorpe also spoke

15

about an incident in which Greene was arrested for bringing his mother’s marijuana to his

16

elementary school. (Id. at 61.) That same day, as the marijuana incident was being

17

investigated, Greene’s sister reported being molested by their father, who was temporarily

18

removed from the home. (Id.)

19

Thorpe also argued that Greene’s history of drug abuse and his withdrawal from

20

methamphetamine were mitigating circumstances. (Id. at 61–62.) She contended that the

21

effects of withdrawal impaired Greene’s ability to conform his conduct to the law. (Id. at

22

61.)

23

In sentencing Greene to death, the trial court found that the State had proven two

24

aggravating factors: that the murder was committed for pecuniary gain, under A.R.S. § 13–

25

703(F)(5), and was especially heinous or depraved, under § 13–703(F)(6).7 (Doc. 135-2,

26
27
28

6

Greene discussed these incidents in more detail in his interviews with Thorpe. (Doc. 1172, Ex. 52, July 16, 1996, interview at 2–6; July 24, 1996, interview at 6–8.)
7

Section 13–703 has since been renumbered. The Court cites the version in use at the time
- 13 -

1

Ex. C, ME 8/26/9, at 1–5.) The court found that Greene failed to prove any statutory

2

mitigating circumstances, but that his drug use and withdrawal and his lack of a felony

3

record constituted nonstatutory mitigation. (Id. at 10.)

4

On direct appeal, the Arizona Supreme Court struck the heinous or depraved

5

aggravating factor but affirmed the pecuniary gain factor. Greene, 192 Ariz. at 441, 967

6

P.2d at 116. The court then reweighed the aggravating and mitigating circumstances and

7

affirmed the death sentence. Id. at 443–44, 967 P.2d at 118–19.

8

During the subsequent PCR proceedings, Greene, represented by attorney Michael

9

Villareal, raised claims of ineffective assistance of counsel. He alleged that trial counsel

10

performed ineffectively by allowing Greene to testify falsely that he hit the victim with his

11

bare hand. (Doc. 121-1, Ex. A, PCR Pet., at 11–16, 20–21.) He also alleged that counsel

12

performed ineffectively by failing to present the testimony of a toxicologist. (Id. at 16–20.)

13

Finally, he alleged that counsel performed ineffectively by failing to file a motion to vacate

14

judgment following the testimony of Galvaz and Schmitz. (Id. at 21–24.) Greene also

15

argued, citing newly discovered evidence of an affair between the victim’s wife and Robert

16

Sankey, that he was entitled to a new trial because of Mrs. Johnson’s false testimony about

17

her relationship with her husband. (Id. at 37–42.)

18

The PCR court held an evidentiary hearing. Greene testified, as did his trial counsel

19

and a Strickland expert. Co-counsel Thorpe testified that Greene informed defense counsel

20

that he had struck Johnson with a weighted, lead-lined “sap glove.” (RT 9/9/02 at 18, 44–

21

46; see id. at 90, 128.) She testified, however, that Greene’s story about the sap glove was

22

the “third or fourth version” he had given about how he killed Johnson. (Id. at 16.)

23

According to Thorpe, Greene also provided the information about the sap glove to Dr.

24

Philip Kanof, a toxicologist retained by the defense.8 (Id. at 18–19, 128.) Thorpe testified

25
26

of Greene’s trial and sentencing.
8

27
28

Dr. Kanof was retained for the mitigation stage of trial. (RT 9/9/02 at 18–20.) He did not
complete his examination or write a report. (See Doc. 118-1, Ex. 53.) Dr. Gary Perrin, a
psychologist, examined Greene in December 1995, before trial. Greene also told Dr. Perrin
that he had used a sap glove to kill Johnson. (See, e.g., Doc. 116-1, Ex. 3, ¶ 9; RT 9/9/02
- 14 -

1

that Dr. Kanof orally informed her that he was prepared to testify that Greene was suffering

2

from methamphetamine-induced psychosis at the time of the murder. (Id. at 19.)

3

Lead counsel Darby testified that his goal in defending Greene was to avoid a first-

4

degree murder conviction. (Id. at 70.) He was convinced there was a good chance Greene

5

would be convicted of second-degree murder and confident Greene would not be sentenced

6

to death. (Id. at 53, 65, 70.) He believed, however, that “without [Greene’s] testimony, he

7

had no chance of getting anything short . . . of a conviction for first degree murder.” (Id. at

8

57; see id. at 61.) Darby also believed Greene would be granted a new trial or relief on

9

appeal based on the trial court’s failure to provide lesser-included murder instructions. (Id.

10

at 20–22.)

11

Darby and Thorpe concluded that evidence showing Greene used a weapon to kill

12

the victim would be harmful to the defense because it suggested premeditation. (Id. at 48,

13

53, 71.) It would also provide support for the cruel, heinous, or depraved aggravating

14

factor. (Id. at 29.)

15

Finally, in counsel’s view, the sap-glove evidence would potentially jeopardize the

16

defense on retrial. (Id. at 21–22.) Because Dr. Kanof was aware that Greene had used a

17

weapon to kill the victim, Darby chose not to present his testimony. (Id. at 52–53.) Thorpe

18

agreed with this strategy and drafted a memorandum documenting their decision, which

19

they discussed with Greene. (Id. at 20–24, 52–53; see Doc. 121-1, Ex. A, PCR Pet.,

20

Appendix, “Memorandum.”)

21

Having decided not to call Dr. Kanof, counsel had Greene examined by another

22

mental health expert, Dr. Kathryn Boyer. (RT 9/9/02 at 27, 37.) Dr. Boyer determined that

23

Greene had an above average IQ and diagnosed him with antisocial personality disorder.

24

These findings would not have benefitted Greene as mitigation, so counsel did not present

25

Dr. Boyer’s testimony. (Id.)

26

Counsel determined that Greene’s testimony was necessary to support the defense

27

theory that Greene did not act with premeditation but instead reacted spontaneously to the

28
at 88–89.)
- 15 -

1

victim’s homosexual advances. (Id. at 33, 60–61, 77.) According to Darby, Greene testified

2

willingly. (Id. at 75.) Darby advised Greene not to volunteer information about the sap

3

glove but to answer truthfully if the question were raised on cross-examination. (Id. at 46,

4

48, 56, 131.)

5

The Strickland expert, attorney Bret Huggins, testified that trial counsel performed

6

ineffectively in advising Greene to testify falsely—namely, to testify that he struck the

7

victim with his hand while omitting the fact that he used a sap glove. (Id. at 98–99.)

8

According to Huggins, there was “absolutely no benefit” to presenting testimony that was

9

easily refuted by the medical examiner’s testimony. (Id. at 101.) Presenting Greene’s

10

testimony also prevented counsel from offering Dr. Kanof’s testimony at sentencing, which

11

would have supported the (G)(1) statutory mitigating circumstance.9 (Id. at 103.) Huggins

12

conceded that his recommended strategy of not presenting Greene’s testimony at all would

13

not have resulted in a different verdict at the guilt phase of trial. (Id. at 119.) He testified,

14

however, that offering Dr. Kanof’s testimony in mitigation would have drawn a causal

15

connection between the crime and Greene’s drug use and withdrawal and would have made

16

a difference at sentencing. (Id.)

17

Greene testified that he did not know he was going to testify at his trial—in fact he

18

was under the impression that he would not—until the night before he was called, when he

19

had a discussion with Darby and Thorpe. (Id. at 130.) During that discussion Greene told

20

counsel he had used a sap glove to kill Johnson. (Id. at 130–31.) Darby told Greene that

21

the only way to avoid a conviction for first-degree murder was for Greene to testify but not

22

to volunteer that he had used the glove. (Id. at 131.) After Greene was convicted, counsel

23

informed him that Dr. Kanof would testify that Greene was suffering from

24

methamphetamine-induced psychosis at the time of the crime. (Id. at 135.) When counsel

25

learned that Greene had told Dr. Kanof about the sap glove, they decided they would not

26
Under A.R.S. § 13–703(G)(1), a mitigating circumstance exists where “[t]he
defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law was significantly impaired, but not so impaired as
to constitute a defense to prosecution.”
9

27
28

- 16 -

1

present his testimony and had Greene sign a document agreeing to that decision. (Id. at

2

136–39.)

3

On cross-examination, Greene testified that he put the sap glove on when he stepped

4

outside the vehicle to use the restroom, intending to use it to threaten Johnson if he refused

5

to drive him back to town. (Id. at 158–60.) This version of events is inconsistent with the

6

account Greene provided to counsel and Dr. Kanof. In the memorandum documenting

7

counsel’s decision not to present Dr. Kanof’s testimony, Greene stated that he had told

8

counsel and Kanof that when the victim placed his hand on his knee, Greene reached into

9

his “fanny pack,” grabbed the sap glove, and struck Johnson. (See Doc. 121-1, Ex. A, PCR

10

Pet., Appx., Memorandum at 2.)

11

The PCR court rejected Greene’s claim that counsel’s failure to present Dr. Kanof’s

12

testimony at sentencing constituted ineffective assistance. (Doc. 121-1, Ex. B, ME 1/10/03,

13

at 5–6.) Greene had argued that testimony about being in a dissociative state due to

14

methamphetamine-induced psychosis would have established a causal connection to the

15

murder and established the (G)(1) mitigating circumstance. The court rejected this claim

16

as “purely speculative,” explaining:

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

There is nothing in the record to suggest what Dr. Kanof would have told the
Court, had he been called. There is no evidence that Dr. Kanof performed
tests or prepared a report. Defendant’s counsel remember having been
informed orally of the diagnosis and concluding therefrom that it was
sufficient to establish the (G)(1) factor. Defendant did not attach to this
petition the doctor’s affidavit that could have established the factual grounds
of the alleged diagnosis. See Rule 32.5. The only evidence that Dr. Kanof
diagnosed the Defendant at all is hearsay elicited at the evidentiary hearing.
But, even assuming such a diagnosis was made, it does not establish even a
rebuttal causal connection between his drug use or withdrawal and the
murder. All evidence, in fact, suggests the opposite. Defendant “killed to get
money to buy drugs,” as shown by his actions after the murder and his own
testimony. Defendant testified that the two most important things in his life
at the time were to get more drugs and to win back his girlfriend. Moreover,
“[o]n cross-examination, he stated unequivocally that neither usage nor
withdrawal from methamphetamine had ever affected his memory.” At the
evidentiary hearing, Defendant testified that he put on the “sap” glove, not in
response to the victim’s alleged homosexual advances, but “[a]s a threat in
case [he] needed to use it” to persuade the victim to drive him back to town.
Further, there is no evidence that Defendant’s heavy drug use or withdrawal,
which started more than 10 years before the murder, had ever caused him to
act violently. His only prior conviction was for misdemeanor theft. On this

- 17 -

record, the Court finds that counsel did not fall below professional standards
by not calling Dr. Kanof.

1
2

(Id.) (citations omitted).

3

C.

4
5
6

Analysis

The ineffective assistance of counsel claims that were remanded pursuant to
Martinez are Claim 4(A), in part, and subparts (1) and (2) of Claim 4(C). The remaining
portion of Claim 4(A), alleging that trial counsel performed ineffectively by presenting

7

Greene’s false testimony at trial, and subpart (3) of Claim 4(C), alleging that trial counsel

8

performed ineffectively at sentencing by failing to offer Dr. Kanof’s testimony, were

9
10

exhausted in state court. This Court denied the claims on the merits, finding that the PCR
court’s rejection of the claims was reasonable. (Doc. 93 at 8–13, 15–21.)

11
12
13
14
15
16

Although the exhausted portions of Claim 4(A) and 4(C) are not part of the remand,
Greene argues in his supplemental Martinez brief that the Court must consider their
allegations as part of a “cumulative” review of trial counsel’s performance. (Doc. 116 at
27, 30, 42, 131.) He further argues that a cumulative review is appropriate because it was
errors made by PCR counsel that led the PCR court and this Court to deny on the merits
the exhausted portion of Claim 4(A) and Claim 4(C)(3). (See id. at 27, 42.)

17
18
19
20

Without deciding whether a second review of these exhausted subclaims is
permitted on remand, the Court determines, for the reasons already stated in its prior denial
of the subclaims, that a cumulative review of the ineffective assistance allegations would
not alter the Martinez analysis set forth below.

21
22
23
24
25
26

First, with respect to the claim that counsel performed ineffectively by advising
Greene to testify falsely, the PCR court found that Greene was not prejudiced because his
false testimony supported neither the element of premeditation nor any aggravating
factor.10 (Doc. 121-1, Ex. C, ME 1/10/03, at 3–4.) In fact, Greene’s testimony provided the
only support for the defense theory that he acted impulsively while experiencing the effects
of methamphetamine withdrawal. The exhausted portion of Claim 4(A), because it is

27
28
10

In Claim 5 below, the Court sets out this analysis in more detail.
- 18 -

1

without merit, adds no cumulative weight to Greene’s ineffective assistance of trial counsel

2

claims.

3

With respect to Claim 4(C)(3), alleging that counsel performed ineffectively by

4

failing to present Dr. Kanof’s testimony at sentencing, as noted above the PCR court denied

5

the claim because it was not supported by evidence of Dr. Kanof’s opinion and because the

6

facts of the case demonstrated that Greene committed the murder in a premeditated manner

7

and with the purpose of obtaining funds to buy drugs. (Doc. 121-1, Ex. B, ME 1/10/03, at

8

5–6.)

9

This Court found that the PCR court reasonably applied Strickland in rejecting the

10

claim. (Doc. 93 at 19.) In addition to noting the lack of evidentiary support for the claim

11

before the PCR court, this Court explained that trial counsel did “present significant

12

evidence through [Greene’s] own testimony that he was a methamphetamine addict who

13

was suffering severe withdrawal symptoms. . . .” (Id.) The Court also explained that the

14

import of Dr. Kanof’s proposed testimony was limited because the “Arizona Supreme

15

Court held that the desire to obtain drugs did not constitute a mitigating factor under § 13–

16

703(G)(1)” and because the trial court “did determine that [Greene’s] drug use and

17

withdrawal constituted a nonstatutory mitigating circumstance.” (Id.) Therefore,

18

“additional testimony on the issue would have had little impact on the state courts’

19

sentencing considerations.” (Id.) The Court concluded that, notwithstanding counsel’s

20

strategic decision not to call Dr. Kanof, “the sentencing judge was provided a detailed

21

account, through Petitioner’s trial testimony and the testimony of family members during

22

the aggravation/mitigation hearing, of [Greene’s] history of drug abuse, its effects on his

23

behavior, and his condition at the time of the murder.” (Id. at 20.) The Court then noted,

24

citing Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006), that the “negative effects of drug

25

abuse and withdrawal are not so esoteric as to elude a lay person’s understanding, as

26

demonstrated by the sentencing judge’s determination that [Greene’s] drug use constituted

27

a nonstatutory mitigating circumstance.” (Id.) Finally, as discussed below, the Court

28

explained that the trial evidence did not support a finding that Greene’s drug use or

- 19 -

1

withdrawal impaired his capacity to appreciate the wrongfulness of his conduct or conform

2

his conduct to the law. (Id. at 20–21.)

3

Accordingly, if the Court were to consider again the allegation in Claim 4(C)(3),

4

adding it to the allegations of ineffective assistance of trial counsel raised in the remanded

5

claims, the cumulative weight of the claims would not be altered. See Mancuso v. Olivarez,

6

292 F.3d 939, 957 (9th Cir. 2002) (“Because there is no single constitutional error in this

7

case, there is nothing to accumulate to a level of a constitutional violation.”), overruled on

8

other grounds by Slack v. McDaniel, 529 U.S. 473 (2000).

9
10

The Court now turns to the remanded claims to determine whether their default is
excused under Martinez.

11

1.

Claim 4(A) (in part)

12

In Claim 4(A) of his amended petition, Greene alleged, in relevant part, that counsel

13

performed ineffectively during the guilt phase of trial by failing to present Dr. Kanof’s

14

testimony. (Doc. 82-3 at 74.) Dr. Kanof would have testified about the effect of chronic

15

methamphetamine use on Greene’s “mental state” at the time of the crime. (Doc. 116 at

16

38.) Greene raised this claim in his PCR petition but not in his petition for review, so the

17

Court found it defaulted. (Doc. 86 at 14–17.) The PCR court rejected the claim on the

18

merits, finding that evidence of Greene’s mental state would have been inadmissible under

19

A.R.S. § 13–503. (Doc. 121, Ex. B, ME 1/10/03, at 5 n.1.)

20

A.R.S. § 13–503 provides that:

21

23

Temporary intoxication resulting from the voluntary ingestion, consumption,
inhalation or injection of alcohol, an illegal substance under chapter 34 of
this title or other psychoactive substances or the abuse of prescribed
medications does not constitute insanity and is not a defense for any criminal
act or requisite state of mind.

24

Therefore, during the guilt phase of trial a toxicologist would not have been allowed

25

to testify about the effect of methamphetamine use or withdrawal on Greene’s “mental

26

state” at the time of the crime. See State v. Boyston, 231 Ariz. 559, 550, 298 P.3d 887, 898

27

(2013) (“Because premeditation is a mental state and part of the mens rea element of

28

premeditated first degree murder . . . , it is thus a ‘requisite state of mind’ of that offense.

22

- 20 -

1

Section 13–503 therefore precludes evidence of voluntary intoxication when considering

2

premeditation.”); State v. Kiles, 222 Ariz. 25, 33, 213 P.3d 174, 182 (2009) (explaining

3

that under § 13–503 voluntary intoxication is not a defense to a charge that defendant

4

murdered the victim knowingly and with premeditation).11

5

Trial counsel did not perform ineffectively. Because the proposed testimony would

6

not have been admissible under Arizona law, counsel’s failure to offer it was neither

7

deficient nor prejudicial. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (explaining

8

that failing to take a futile action cannot constitute deficient performance); see also Stanley

9

v. Schriro, 598 F.3d 612, 620 (9th Cir. 2010) (“No prejudice is suffered when counsel

10

declines to pursue the development of testimony that would be inadmissible at trial”—

11

namely, evidence of a dissociative reaction to challenge premeditation); Wilson v. Henry,

12

185 F.3d 986, 990 (9th Cir. 1999) (“A decision not to pursue testimony by a psychiatric

13

expert, when no mental state defense seems likely, is not unreasonable under Strickland.”).

14

PCR counsel, in turn, did not perform ineffectively by failing to include this

15

meritless ineffective assistance claim in his petition for review. See Atwood, 870 F.3d at

16

1059–60; Runningeagle, 825 F.3d at 982; Hooper, 985 F.3d at 627. Greene therefore

17

cannot show “cause” under Martinez for the claim’s default. The unexhausted portion of

18

Claim 4(A) remains procedurally defaulted and barred from federal review.

19

2.

20

In Claim 4(C)(1) of his amended petition, Greene alleged that counsel performed

21

ineffectively at sentencing by failing to investigate and present additional mitigating

22

evidence about Greene’s background. (Doc. 82-4 at 82, 93.) He asserted that counsel were

23

ineffective because they “merely presented lay testimony that [Greene] was a drug addict”

24

and the “bulk of the mitigation was the ‘good character type.’” (Id. at 96.)

Claim 4(C)(1)

25

Greene catalogued the mitigating evidence he alleges counsel should have

26

presented. (Id. at 86–102.) He was a “small, sickly child” who experienced febrile seizures.

27
28

Greene does not address Respondents’ arguments about the inadmissibility of Dr.
Kanof’s testimony under A.R.S. § 13–503.
11

- 21 -

1

(Id. at 93.) Until he was three, his family lived near a Superfund site where he was exposed

2

to toxins. (Id.) He suffered “countless head injuries,” including being hit by the butt of a

3

gun when he was three and being involved in a serious motorcycle accident. (Id.)

4

Sexually inappropriate behavior was rampant in Greene’s family. Greene’s mother

5

was repeatedly molested by her father. (Id.) Greene’s father was addicted to pornography

6

and wallpapered the family home with centerfolds. (Id.) He sexually molested his daughter.

7

(Id. at 93–94.)

8

Greene’s childhood was lonely. (Id. at 93.) His family lived twenty-seven miles

9

from the nearest town and there were no other children nearby. (Id. at 93–94.) Greene’s

10

only role model was his openly racist and homophobic father. (Id. at 94.) Greene was pulled

11

out of school in sixth grade and never returned. (Id.) His family lived in a converted bus

12

with no fixed address.

13

When Greene was thirteen or fourteen he was sexually molested by a rancher who

14

had lured Greene to his home with the offer of a job. (Id. at 94–95.) He performed oral sex

15

on Greene while Greene pretended to be asleep. (Id.)

16

At around this time, and with his mother’s consent, Greene began using alcohol and

17

drugs, including hashish and LSD. (Id. at 95.) At age fifteen he tried cocaine for the first

18

time. (Id.) At seventeen he turned to methamphetamine as his drug of choice. (Id.) He never

19

sought treatment for his substance abuse. (Id.)

20

As a result of this dysfunctional background, Greene “suffered from a form of post-

21

traumatic stress disorder” as well as methamphetamine dependence and psychosis at the

22

time of the crime. (Id. at 96.) In support of these assertions about his mental state, Greene

23

cites the following examinations and diagnoses.12

24

In July 2000, PCR counsel retained Dr. Marc Walter, a neuropsychologist, to

25

evaluate Greene. (Doc. 116-1, Ex. 23.) Dr. Walter reviewed the evaluation conducted in

26

1995 by Dr. Perrin and other records and administered a battery of neuropsychological

27
28

The Court previously denied Greene’s motion to expand the record with these
documents. (Doc. 86.) As discussed below, the Court now grants that request.
12

- 22 -

1

tests. (Id. at 1–3.) Dr. Walter reported that Greene had been in a motorcycle accident in

2

1994; he lost consciousness and suffered amnesia. (Id. at 1.) A CAT scan was negative,

3

however. (Id.) Noting that Greene’s scores in several areas had improved from the testing

4

done in 1995, Dr. Walter opined that at the time of the murder Greene was probably “much

5

more impaired neurocognitively both as a result of his extensive history of drug and alcohol

6

abuse as well as his intoxication/sleep withdrawal status.”13 (Id. At 4.) He further opined

7

that had “a neuropsychological evaluation been conducted even as late as several months

8

after [Greene’s] arrest . . . , significant impairment in a variety of neurocognitive areas of

9

function would have been noted.” (Id.) Dr. Walter found that “Greene’s description of

10

hallucinations during the offense is consistent with his history of methamphetamine abuse,

11

sleep deprivation, and starting to go into withdrawal from the drug.” (Id.) He concluded

12

that “Greene’s brain was in an abnormal state at the time of the offense” and that Greene

13

“would have difficulty distinguishing what was real and what was hallucinatory and his

14

judgment would have been extremely compromised.” (Id.)

15

Dr. Craig Beaver, a neuropsychologist, evaluated Greene in 2004 during these

16

habeas proceedings. (Doc. 116-1, Ex. 24.) Dr. Beaver reviewed records and administered

17

a battery of neuropsychological tests. (Id. at 2.) He also noted Greene’s 1994 motorcycle

18

accident. Dr. Beaver found three areas of significance with respect to Greene’s state of

19

mind at the time of the murder: his prior history of sexual abuse and his father’s negative

20

views about homosexuality; withdrawal from methamphetamine; and use of

21

methamphetamine, sleep deprivation, and lack of food in the days leading up to the crime.

22

(Id. at 6.) Dr. Beaver opined that at the time of the crime Greene was experiencing drug-

23

induced psychosis, including hallucinations and paranoia. (Id. at 11.) According to Dr.

24

Beaver, Greene was “neurocognitively impaired . . . from his methamphetamine use and

25

sleep depravation [sic].” (Id. at 11.) This impairment “resulted in heightened arousal,

26
27
28

Dr. Perrin determined that Greene’s full-scale IQ was 113. (Doc. 116-1, Ex. 23 at 1.)
According to Dr. Walter, Dr. Perrin did not perform a “formal neuropsychological
evaluation” of Greene. (Id.)
13

- 23 -

1

producing strong reactions . . . [and] decreased [Greene’s] control over emotional

2

responses, impulses and behaviors because of methamphetamine [sic] effect on the frontal

3

lobes.” (Id.) Dr. Beaver noted, however, that his neuropsychometric testing, like the testing

4

done previously by Drs. Perrin and Walter, “did not find evidence of significant

5

neurocognitive deficit.” (Id.)

6

Greene was also evaluated by Dr. Donna Schwartz-Watts, a psychiatrist retained by

7

federal habeas counsel. (Doc. 116-1, Ex. 25.) Dr. Schwartz-Watts reviewed background

8

materials, evaluated Greene, and interviewed his relatives and an ex-girlfriend. (Id. at 8.)

9

She diagnosed Greene with chronic Post-Traumatic Stress Disorder (“PTSD”), arising

10

from the incident when Greene was molested as a teenager. (Id. at 4.) She also diagnosed

11

him with Amphetamine Dependence, with Physiological Dependence, and with a history

12

of Amphetamine Induced Psychotic Disorder, with Hallucinations, and with Onset During

13

Withdrawal. (Id. at 14.) Dr. Schwartz-Watts also reported that Greene, according to his

14

father, was exposed to Agent Orange and other toxins at Greene’s childhood home, which

15

was located near a chemical dump. (Id. at 3.) She stated, however, that “[t]he effects of

16

such exposure on Beau Greene are not known at this time.” (Id.)

17

Finally, Dr. Schwartz-Watts noted that both Dr. Perrin and Dr. Walter failed to

18

diagnose Greene with PTSD. (Id. at 10–11.) According to Dr. Schwartz-Watts, Dr. Perrin

19

erred by interpreting psychological test results as representing a personality disorder rather

20

than “the effects of abuse” and Dr. Walter failed to consider the visual hallucinations

21

described by Greene as “a symptom” of PTSD. (Id.)

22

a.

“Prejudice” under Martinez

23

The Court finds that Claim 4(C)(1) meets the standard for being “substantial” under

24

Martinez. The Court cannot say the claim “does not have any merit” or is “wholly without

25

factual support.” Martinez, 566 U.S. at 14–16. Because the claim is “substantial,”

26

Martinez’s “prejudice” prong is satisfied.

27

As noted above, however, a finding of “prejudice” for purposes of the “cause and

28

prejudice” analysis “does not diminish the requirement . . . that petitioner satisfy the

- 24 -

1

‘prejudice’ prong under Strickland in establishing ineffective assistance by post-conviction

2

counsel.” Clabourne, 745 F.3d at 377. The Court will now consider whether “cause” for

3

the claim’s default exists.

4

b.

“Cause” under Martinez

5

To establish “cause,” Greene must demonstrate that PCR counsel performed

6

ineffectively in failing to raise Claim 4(C)(1). To make that showing he must establish that

7

PCR counsel performed deficiently by failing to raise the claim and that there was a

8

reasonable probability that the result of the PCR proceedings would have been different if

9

the claim had been raised. Clabourne, 745 F.3d at 377.

10

In considering whether PCR counsel’s performance was ineffective, the Court will

11

focus on the prejudice prong. See Strickland, 466 U.S. at 697 (“If it is easier to dispose of

12

an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should

13

be followed.”). Thus, the Court makes no determination as to whether PCR counsel

14

performed deficiently in failing to raise the underlying claim of ineffective assistance of

15

counsel at sentencing. To determine whether PCR counsel’s performance was ineffective,

16

the court evaluates the strength of the underlying claim of ineffective assistance of trial

17

counsel. See Hooper, 985 F.3d at 627; Atwood, 870 F.3d at 1059–60; Runningeagle, 825

18

F.3d at 982.

19

The Court concludes that Greene was not prejudiced by PCR counsel’s failure to

20

raise Claim 4(C)(1) because the underlying claim lacks merit. In determining the strength

21

of the claim of ineffective assistance of counsel at sentencing, the Court again focuses

22

primarily on Strickland’s prejudice prong. See Hooper, 985 F.3d at 627 (“Even assuming

23

[counsel] performed deficiently by failing to investigate and present mitigation evidence

24

(a question we need not and do not reach), we find there is no ‘reasonable probability that,

25

but for [counsel’s alleged] unprofessional errors, the result of the proceeding would have

26

been different.’”) (quoting Strickland, 466 U.S. at 694).

27

To assess prejudice from counsel’s performance at the sentencing stage of a capital

28

case, a court considers the totality of the mitigating evidence and weighs it against the

- 25 -

1

aggravating factors. Wiggins, 539 U.S. at 534. This Court, after performing such an

2

assessment of the totality of Greene’s mitigating evidence, including the evidence raised

3

during these habeas proceedings, concludes that Greene was not prejudiced by counsel’s

4

failure to present additional information about his background at sentencing.

5

First, much of the lay evidence described above was in fact presented at sentencing

6

through the testimony of Greene’s family members, Greene’s trial testimony, and in

7

Greene’s social history interview with counsel. The sentencing court was made aware of

8

Greene’s isolated and unsettled childhood, his early withdrawal from school, and the

9

negative influence of his mother and father. The evidence also documented Greene’s long

10

history of drug abuse.

11

In his interview with Thorpe, Greene discussed in detail his molestation by a

12

stranger at age thirteen or fourteen and his father’s molestation of his sister. Thorpe argued

13

that these incidents constituted mitigating circumstances. In particular, counsel argued that

14

the prior incident of sexual abuse was present in Greene’s mind and affected his behavior,

15

causing him to “freak out” when Johnson propositioned him and touched his leg. The court

16

was also aware, from Greene’s own testimony, that at the time of the murder he was

17

hallucinating from methamphetamine withdrawal and felt like he was “somewhere else.”

18

The largely cumulative nature of the evidence offered about Greene’s background

19

diminishes the likelihood of prejudice. See Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir.

20

2011) (“[C]umulative evidence is given less weight because it is not as likely to have

21

affected the outcome of the sentencing.”); Rhoades, 638 F.3d at 1051 (finding no prejudice

22

despite the fact that new evidence “exceed[ed] what was uncovered and presented by trial

23

counsel” in part because “much of the newly adduced evidence is cumulative”).

24

Greene has now offered additional information about sexually inappropriate

25

behavior in his extended family, as well as evidence of a head injury and possible childhood

26

exposure to toxic chemicals. He also offers the PTSD diagnosis reached by Dr. Schwartz-

27
28

- 26 -

1

Watts.14 The Court finds that Greene was not prejudiced by the omission of this evidence

2

at sentencing.

3

The weight of Greene’s mitigation evidence is reduced because of its lack of a causal

4

connection to the murder.15 For example, Arizona courts have assigned less weight to a

5

PTSD diagnosis when the defendant fails to show a link between the condition and his

6

conduct in committing the murder. See State v. Hedlund, 245 Ariz. 467, 473, 431 P.3d 181,

7

187 (2018) (giving PTSD diagnosis little weight where the evidence failed to showed that

8

petitioner “could not appreciate right from wrong or conform his conduct to the

9

requirements of law”); State v. Hidalgo, 241 Ariz. 543, 558, 390 P.3d 783, 798 (2017)

10

(reducing weight of PTSD and other diagnoses where petitioner “understood the

11

wrongfulness of his actions” and no connection was drawn between mitigating

12

circumstances and murders); State v. Styers, 227 Ariz. 186, 189, 254 P.3d 1132, 1135

13

(2011) (reducing weight of PTSD as mitigating factor where no connection was shown to

14

crime).

15

Greene’s conduct in committing the murder and his behavior afterwards do not

16

support a finding that he was impaired by PTSD or any other condition. Evidence showed

17

that the murder was premeditated, with Greene arming himself before attacking the victim,

18

and carried out for the purpose of obtaining funds to buy drugs. Immediately after the

19

murder, Greene took the victim’s vehicle, cash, and credit cards, and went on a spending

20
14

21
22
23
24
25
26
27
28

Trial counsel did not perform deficiently with respect to the PTSD diagnosis. They
retained three experts to evaluate Greene—Drs. Perrin, Kanof, and Boyer—none of whom
reached the diagnosis now offered by Dr. Schwartz-Watts; nor did Dr. Walter, who
evaluated Greene during the PCR proceedings. Counsel cannot be faulted for failing to
present evidence of PTSD when their experts did not reach such a diagnosis. “Attorneys
are entitled to rely on the opinions of properly selected, adequately informed and wellqualified experts.” Crittenden v. Ayers, 624 F.3d 943, 966 (9th Cir. 2010); see Brown v.
Uttecht, 530 F.3d 1031, 1035 (9th Cir. 2008).
As discussed below, under the Ninth Circuit’s analysis in McKinney, 813 F.3d 798, the
Arizona Supreme Court applied an unconstitutional nexus test to Greene’s mitigating
evidence by assigning it no weight. It is permissible, however, for a court to reduce the
weight of a mitigating circumstance when it is not causally related to the murder, or when
the causal link is weak. See Lopez, 630 F.3d at 1204.
15

- 27 -

1

spree, all while making efforts to avoid detection and facilitate an escape. Greene’s trial

2

testimony demonstrated—contrary to his claims that he “freaked out” and was

3

hallucinating—that he had no difficulty recalling the details of his conduct before, during,

4

and after the crime. As the Arizona Supreme Court explained in rejecting the (G)(1)

5

“impaired capacity” mitigating circumstance:

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Greene’s behavior shows that he did appreciate the wrongfulness of his
conduct. After the murder, Greene asked Bevan for clean pants and shoes.
Because Bevan did not have pants for him, Greene rubbed dirt on the
bloodstains, “trying to be as inconspicuous as possible.” Greene also took a
small rug to cover the bloody car seats. In addition, he feigned injury to his
hand in order to use Johnson’s stolen credit cards. We agree with the trial
court that the evidence is insufficient to establish the existence of the (G)(1)
mitigating circumstance.
Greene, 192 Ariz. at 441–42, 967 P.2d at 116–17 (citation omitted); see State v. Rienhardt,
190 Ariz. 579, 591–92, 951 P.2d 454, 466–67 (1997) (“[A] defendants claim of alcohol or
drug impairment fails when . . . the defendant took steps to avoid prosecution shortly after
the murder, or when it appears that intoxication did not overwhelm the defendant’s ability
to control his physical behavior.”); State v. Poyson, 250 Ariz. 48, 475 P.3d 293, 298 (2020)
(“We will not find that a defendant’s ability to conform or appreciate the wrongfulness of
his conduct was impaired when the defendant’s actions were planned and deliberate, or
when the defendant seeks to cover up his crime.”).
The Ninth Circuit has likewise found prejudice lacking where the circumstances of
the crime are not consistent with a proposed mental health mitigating circumstance. See
Boyer v. Chappell, 793 F.3d 1092, 1105 (9th Cir. 2015) (finding petitioner did not establish
prejudice from trial counsel’s failure to investigate and present evidence of organic brain
damage because evidence suggested the petitioner was in search of money when he
committed the crimes and that he took actions after the crimes “to avoid arousing
suspicion”); Rhoades, 638 F.3d at 1050 (finding no ineffective assistance for failing to
present evidence of PTSD because, in part, there was “no suggestion” that the petitioner
committed the crime “while in any kind of a PTSD-induced disassociative state”).
In addition, Dr. Schwartz-Watts’s PTSD diagnosis was based on the incident in
which the teenaged Greene was molested by a male adult stranger. The court was aware of
- 28 -

1

the incident, and aware also of counsel’s argument that Greene’s violent, impulsive

2

response to the victim’s sexual advance was partly the product of Greene’s previous

3

experience as a sexual abuse victim. With that evidence before the court at sentencing, the

4

absence of the actual PTSD diagnosis was less likely to be prejudicial. Any link between

5

the prior incident and Greene’s alleged reaction to the victim’s conduct was not so

6

“esoteric” as to be beyond the court’s understanding in the absence of expert testimony.

7

See Raley, 470 F.3d at 803.

8

Dr. Schwartz-Watts attempted to draw a causal connection between Greene’s PTSD

9

and his conduct in committing the murder. (Doc. 116-1, Ex. 25 at 5.) She opined that

10

Greene was re-experiencing his earlier sexual abuse when he “flew into a rage” after

11

Johnson touched his leg, and began “pummeling [Johnson] with his fists.” (Id.) This

12

opinion, however, is based on Greene’s trial testimony, which did not accurately describe

13

the attack and omitted the fact that Greene took the time to arm himself with the sap glove

14

before he began beating the victim. Here again, the record does not support a connection

15

between Greene’s PTSD and the crimes.

16

The totality of the mitigation offered by Greene also includes evidence of a

17

dysfunctional family life. As already noted, much of this evidence was presented at

18

sentencing. The additional background information is not entitled to significant weight.

19

Under Arizona law, a “difficult or traumatic childhood is a mitigating

20

circumstance.” State v. Prince, 226 Ariz. 516, 541, 250 P.3d 1145, 1170 (2011). “Although

21

the defendant need not prove a causal nexus between the mitigating circumstance and the

22

crime, the lack of such a connection may lessen the mitigation’s weight.” Id.; see Poyson,

23

250 Ariz. 48, 475 P.3d at 300 (“The mitigating weight of childhood abuse is . . . reduced

24

when there is no causal link between the abuse and the murder.”); see State v. Mann, 188

25

Ariz. 220, 231, 934 P.2d 784, 795 (1997) (“An abusive family background is usually given

26

significant weight as a mitigating factor only when the abuse affected the defendant’s

27

behavior at the time of the crime.”) In Greene’s case, the causal connection between his

28

dysfunctional childhood and the crime is attenuated both by the evidence showing that he

- 29 -

1

premeditated the murder and intended to rob Johnson and by the evidence demonstrating

2

that he appreciated the wrongfulness of his conduct.

3

In addition, “[t]he mitigating weight of childhood abuse may diminish as a

4

defendant ages.” Poyson, 250 Ariz. 48, 475 P.3d at 300 (citing Hidalgo, 241 Ariz. at 558,

5

390 P.3d at 798); see Prince, 226 Ariz. at 541, 250 P.3d at 1170 (“Difficult childhood

6

circumstances . . . receive less weight as more time passes between the defendant’s

7

childhood and the offense.”); State v. Hampton, 213 Ariz. 167, 185, 140 P.3d 950, 968

8

(2006) (explaining that the relevance of “horrendous” childhood lessened where defendant

9

was thirty years old at time of the murder); State v. Pandeli, 215 Ariz. 514, 532, 161 P.3d

10

557, 575 (2007) (“Pandeli murdered [the victim] when he was in his late twenties, reducing

11

the relevance of his traumatic childhood.”).

12

Greene was twenty-nine years old when he murdered Professor Johnson, and

13

significantly distanced from his dysfunctional childhood. As the Arizona Supreme Court

14

noted, “he had had little or no contact with his mother in years.” Greene, 192 Ariz. at 442,

15

967 P.2d at 117. After leaving home Greene had worked several jobs, obtained his GED

16

and become certified as a motorcycle mechanic; he had married and fathered children. He

17

did not engage in any violent behavior, despite his ongoing drug use and whatever mental

18

health conditions he may have suffered from. See State v. McGill, 213 Ariz. 147, 161, 140

19

P.3d 930, 944 (2006) (“[T]he impact of McGill’s upbringing on his choices has become

20

attenuated during the two decades between his reaching adulthood and committing this

21

murder.”); State v. Ellison, 213 Ariz. 116, 144, 140 P.3d 899, 927 (2006) (finding, where

22

there was no evidence defendant did not know right from wrong, “childhood troubles

23

deserve little value as a mitigator for the murders he committed at age thirty-three”). The

24

mitigating weight of Greene’s dysfunctional childhood is reduced by its distance in time

25

from the murder.

26

Finally, with respect to the new evidence of head injuries and childhood exposure

27

to toxic chemicals, there is not enough information in the record for the Court to conclude

28

that Greene has met his burden of showing he was prejudiced by counsel’s failure to present

- 30 -

1

this information at sentencing. There is no evidence, for example, that Greene suffered any

2

effects from the head injury or his alleged exposure to toxins. A CAT scan after the

3

motorcycle accident was negative, and Dr. Schwartz-Watts acknowledged that if Greene

4

had been exposed to toxins the effect of such exposure was unknown. Speculation that

5

Greene was affected neurologically by these circumstances is insufficient to establish

6

prejudice. See Djerf v. Ryan, 931 F.3d 870, 883 (9th Cir. 2019) (finding no prejudice where

7

it was “not clear” what new evidence counsel could have uncovered regarding defendant’s

8

purported head injury and explaining “such speculation rarely creates a ‘reasonable

9

probability’ that a different result would have occurred absent the purportedly deficient

10

representation”) (quoting Strickland, 466 U.S. at 694).

11

This is not a case where the court sentenced Greene to death “knowing hardly

12

anything about him.” Andrews v. Davis, 944 F.3d 1092, 1117 (9th Cir. 2019) (quoting

13

Porter v. McCollum, 558 U.S. 30, 33 (2009)). Greene cites Porter, where the Supreme

14

Court found prejudice based on counsel’s failure to present evidence of the defendant’s

15

“abusive childhood, his heroic military service and the trauma he suffered because of it,

16

his long-term substance abuse, and his impaired mental health and mental capacity.” 558

17

U.S. at 33.

18

Porter is distinguishable. There, “[t]he sum total of the mitigating evidence was

19

inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter

20

had a good relationship with his son.” Id. at 32. Greene’s counsel, by contrast, did present

21

mitigating evidence of his dysfunctional childhood and the negative influence of his

22

parents, his long-term substance abuse, the withdrawal symptoms he was experiencing

23

during the attack, and the sexual molestation he experienced as a teenager. There was no

24

heroic military service to report, but counsel offered humanizing testimony about Greene’s

25

good qualities and the positive aspects of his background. The trial court agreed that

26

Greene’s substance abuse history and withdrawal, together with his lack of a felony record,

27

were mitigating circumstances. Cf. Rhoades, 638 F.3d at 1051 (finding no prejudice where

28

trial court was presented with evidence of defendant’s drug abuse history, childhood health

- 31 -

1

problems, limited education, and redeeming qualities). The omitted evidence of PTSD, for

2

the reasons discussed above, was not weighty enough to result in prejudice. See Payton v.

3

Cullen, 658 F.3d 890, 895 (9th Cir. 2011) (finding petitioner was not prejudiced where

4

omitted evidence of childhood “experience is not comparable to those in other cases where

5

courts have found a reasonable probability that the outcome would have been different”).

6

Greene was not prejudiced by counsel’s failure to present additional background

7

evidence. The difference between the evidence that was presented and the evidence that

8

could have been presented is insufficient to undermine confidence in the outcome of the

9

sentencing proceedings. Duncan, 528 F.3d at 1240; see also Atwood, 870 F.3d at 1064;

10

Runningeagle, 825 F.3d at 988. The omitted evidence “would barely have altered the

11

sentencing profile presented to the sentencing judge.” Strickland, 466 U.S. at 699–700.

12

There was not a reasonable probability that Greene would have received a life sentence if

13

the evidence had been presented. Strickland, 466 U.S. at 693.

14

PCR counsel, in turn, did not perform ineffectively by failing to raise this claim. See

15

Atwood, 870 F.3d at 1060 (“If the ineffective assistance of trial counsel claim lacks merit,

16

then the state habeas counsel would not have been deficient for failing to raise it.”);

17

Runningeagle, 825 F.3d at 982 (explaining that to find prejudice based on PCR counsel’s

18

failure to raise a trial-level ineffective assistance of counsel claim, the court “must also find

19

a reasonable probability that the trial-level IAC claim would have succeeded had it been

20

raised”). There is not a reasonable probability that the results of the PCR proceedings

21

would have been different if counsel had raised this claim. Greene therefore cannot show

22

“cause” under Martinez for the claim’s default. Claim 4(C)(1) remains procedurally

23

defaulted and barred from federal review.

24

3.

25

In Claim 4(C)(2) of his amended petition, Greene alleged that trial counsel

26

performed ineffectively at sentencing by failing to rebut the pecuniary gain aggravating

27

factor with evidence of the victim’s homosexuality.16 (Doc. 82-4 at 86–87.) He asserted

Claim 4(C)(2)

28
16

In Claim 4(B) of his amended habeas petition, Greene alleged that counsel performed
- 32 -

1

that “[t]rial counsel was on notice that the information that Johnson was gay was available”

2

but “failed to investigate this issue.” (Id. at 87.) According to Greene, additional

3

investigation, including interviewing people at the School of Music, would have revealed

4

that it “was common knowledge . . . that Johnson would go out late at night to pick up

5

males for sex.” (Id. at 93.)

6

Greene contends that evidence suggesting Johnson was homosexual was available

7

to trial counsel from several sources. First, in an anonymous letter to Thorpe, dated August

8

27, 1996, the writer stated that according to two reliable sources—a student and a member

9

of Johnson’s church choir—Johnson was sexually active with other men. (See Doc. 117,

10

Ex. 48.) Defense counsel did not follow up on that information.

11

Next, there was a phone call to the prosecutor during the trial. Because he did not

12

want to become a witness, the prosecutor handed the phone to his detective, who took notes

13

on the conversation. The anonymous caller told the detective that she worked for the

14

university and knew that Johnson was gay. (See RT 3/13/96 at 75–77.) The caller also made

15

“unflattering comments” about Johnson’s wife, S.J. (Id. at 79.) The prosecutor informed

16

the court and defense counsel of the call but did not turn over the notes taken by the

17

detective, and counsel did not request them. (See Doc. 116-1, Ex. 1, ¶ 5.)

18

Later that day, S.J.’s secretary approached the court with information that S.J. had

19

checked out books about homosexuality and bisexuality from the University library. (RT

20

3/13/96 at 211–14.) The next day, defense counsel called S.J. to the stand. She repeated

21

her previous testimony that her husband was “a man of great honor and integrity,” that he

22

was “completely devoted” to her, and that there were “no secrets between” them. (RT

23

3/14/96 at 9–10.) She acknowledged checking out books about homosexuality, bisexuality,

24

and husbands coming out of the closet. (Id. at 10–11.) She testified that given the

25

accusations about her husband, checking out the books and trying to gain more information

26
27
28

ineffectively by failing to move to vacate the verdict after the testimony of Galvaz and
Schmitz. The Court found that the PCR court reasonably denied this claim (Doc. 93 at 13–
14.)
- 33 -

1

“seemed the sensible thing to do.” (Id. at 13.) She did not read the books, however. (Id.)

2

Defense counsel did not pursue the issue further. (Doc. 116-1, Ex. 1, ¶ 4.)

3

In his habeas petition Greene also noted information provided by Frederick Moyer,

4

a concert pianist who traveled to Tucson for a concert in March 1996. (Doc. 82 at 15.)

5

Moyer reported that he was told by a School of Music employee that it was “common

6

knowledge” Johnson would go out late at night to pick up men for sex. (Id.; see Doc. 116-

7

1, Ex. 22, ¶ 4.) Moyer stated that he urged the employee to come forward, but she refused.

8

(Id. at 16; Doc 116-1, Ex. 22, ¶ 6.) Moyer eventually relayed this information to Greene’s

9

appellate and PCR lawyers, but they did not make use of it. (Id.; Doc. 116-1, Ex. 22, ¶¶ 9–

10

15.)

11

During these habeas proceedings, Greene has identified two additional witnesses to

12

support his claim that Johnson was homosexual. John Fessel is a Tucson resident who

13

stated, in a declaration dated September 15, 2005, that he had a sexual encounter with

14

Johnson in January or February 1995. (Doc. 116-1, Ex, 20.) Kim Hyashi, a student at the

15

School of Music, stated in a declaration dated September 27, 2005, that Johnson had a

16

reputation for “cruising” at a park near the University. (Doc. 116-1, Ex. 21.)

17

In alleging that counsel performed ineffectively by failing to question the victim’s

18

sexuality, Greene also cites evidence of an affair between Robert Sankey and S.J. (See Doc.

19

116 at 51.) The affair only came to light during the PCR proceedings. (See Doc. 116-1, Ex.

20

1, ¶ 7.) According to Greene, evidence of the affair would have impeached the credibility

21

of both S.J. and Sankey.

22

Greene cannot establish that trial counsel performed ineffectively by failing to

23

present evidence of Johnson’s homosexuality. Their performance was neither deficient nor

24

prejudicial.

25
26

First, counsel did present such evidence at the sentencing stage of trial. As already
noted, Galvaz and Schmitz testified to that effect.

27

More significantly, overwhelming evidence supported the finding that the murder

28

was committed for pecuniary gain, and such evidence would not have been affected by

- 34 -

1

evidence showing that Johnson was gay and solicited sex from strangers. As the trial court

2

explained, Greene’s version of the killing—that he struck the victim with his bare hand—

3

was “destroyed” by the medical examiner’s testimony. (Doc. 135-2, Ex. C, ME 8/26/96, at

4

1.) The court found that Greene “had to have made a conscious deliberate effort to use an

5

instrument for the purposes of beating the victim in order to cause the injuries suffered by

6

Roy Johnson.” (Id.) According to the court, because Greene purposely donned the sap

7

glove, “it is unreasonable and flies in the face of logic to believe that this murder was

8

motivated by rage.” (Id.) The court concluded that “the only motivation proven beyond a

9

reasonable doubt is that Roy Johnson’s murder was for pecuniary gain.” (Id.)

10

The court further noted that the trial evidence contradicted Greene’s testimony that

11

he formed the intent to take the victim’s wallet and vehicle only after the killing. (Id.) The

12

evidence showed just one set of footprints leading to the body, refuting Greene’s testimony

13

that he returned later to take Johnson’s wallet. (Id. at 1–2.)

14

The court concluded that “the clear implication of the evidence is that the defendant

15

formed the intent to profit from the murder no later than the moment when he picked up

16

the object he used to bludgeon Roy Johnson. This evidence is not reasonably susceptible

17

to any other interpretation.” (Id.) Accordingly, the court found that the murder was

18

committed in the expectation of pecuniary gain. (Id.)

19

The Arizona Supreme Court agreed, citing Greene’s use of a weapon, which implied

20

premeditation, and the single set of tracks. Greene, 192 Ariz. at 439, 967 P.2d at 114. The

21

court continued:

22
23
24
25
26
27
28

The trial court’s finding that Greene intended to profit from the murder was
also supported by Greene’s admitted need for money, drugs, and
transportation. Greene testified that he was hungry, tired, and craving
methamphetamine when he encountered Johnson. He was homeless, had no
transportation, and was attempting to avoid a drug dealer who had threatened
to shoot him over an outstanding debt. Greene testified that the two most
important things in his life at the time were to get more drugs and to win back
his girlfriend.
Greene’s actions after the murder also demonstrate a pecuniary motive.
Driving Johnson’s car, and within hours of the murder, Greene began using
Johnson’s credit cards. Greene wrapped his hand in K-Y jelly and gauze and
feigned injury to explain any discrepancy in credit card signatures. With the
stolen credit cards, he purchased camping equipment, food, and electronic
- 35 -

1
2
3
4
5
6
7
8
9
10
11
12

equipment that he later traded for drugs. He also bought food and took it to
his girlfriend’s house for her son.
Greene argues the court failed to properly consider the effect of his
methamphetamine use on his ability to accurately perceive and recall the
events that night. But if Greene’s memory is suspect, all that remains is
uncontradicted evidence offered by the state. Moreover, during trial, Greene
recalled, in great detail, events both before and after the murder. On cross
examination, he stated unequivocally that neither usage nor withdrawal from
methamphetamine had ever affected his memory.
We have held that when one comes to rob, the accused expects pecuniary
gain and this desire infects all other conduct. . . . The evidence supports
beyond a reasonable doubt a finding that Greene, coming off of
methamphetamine and penniless, killed Johnson to obtain cash or credit
cards so that he could make fraudulent purchases to exchange for money or
drugs. Thus, the trial court found that Greene’s admitted need for money,
drugs, and transportation in combination with the crime scene evidence
showed that Greene intended to profit from the murder no later than the
moment he picked up the object to kill Johnson. We agree. Greene murdered
Johnson for pecuniary gain.
Id. (citation omitted).

13

Evidence that Johnson was gay—with the implication that therefore he might have

14

made a sexual advance on Greene—or that Johnson’s wife was unfaithful, would not have

15

changed the fact that Greene armed himself before attacking Johnson, then stole his wallet

16

and vehicle and used his cash and credit cards to purchase items he could exchange for

17

money or drugs or use in his attempt to evade capture. There was not a reasonable

18

probability of a different verdict if further evidence of Johnson’s homosexuality or

19

evidence of his wife’s unfaithfulness had been presented.

20

Trial counsel did not perform ineffectively in failing to rebut the pecuniary gain

21

aggravating factor by presenting additional evidence of Johnson’s homosexuality. PCR

22

counsel, in turn, did not perform ineffectively by failing to raise this meritless claim. See

23

Atwood, 870 F.3d at 1059–60; Runningeagle, 825 F.3d at 982; Hooper, 985 F.3d at 627.

24

Therefore, cause does not exist under Martinez for the claim’s default and the claim

25

remains barred from federal review.

26

4.

Claim 5

27

In Claim 5 of his amended petition, Greene alleged that his rights were violated by

28

a conflict of interest arising from counsel’s advice to testify falsely. (Doc. 82-5 at 98.)

- 36 -

1

According to Greene, counsel’s decision to offer Greene’s testimony that he hit the victim

2

only with his fist destroyed Greene’s credibility and prevented counsel from presenting the

3

testimony of Dr. Kanof. (Id.) This Court previously found the claim defaulted and barred

4

from review. (Doc. 86 at 19–20.) As noted above, however, under Pizzuto the Court may

5

consider whether cause and prejudice exist to excuse the claim’s default. Because the

6

underlying claim is meritless, the default is not excused.

7

The right to counsel guaranteed by the Sixth Amendment includes the “right to

8

representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271

9

(1981). An ineffective assistance of counsel claim based on a conflict of interest requires a

10

petitioner to show “that an actual conflict of interest adversely affected his lawyer’s

11

performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). “[U]ntil a defendant shows

12

that his counsel actively represented conflicting interests, he has not established the

13

constitutional predicate for his claim of ineffective assistance.” Id. In the conflict of interest

14

context, prejudice is presumed if a petitioner shows that his lawyer labored under an actual

15

conflict of interest. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003) (citing

16

Sullivan, 446 U.S. at 347). An “actual conflict of interest” means “a conflict that affected

17

counsel’s performance—as opposed to a mere theoretical division of loyalties.” Mickens

18

v. Taylor, 535 U.S. 162, 171 (2002) (emphasis in original).

19

In Mickens, “the Supreme Court explicitly limited this presumption of prejudice for

20

an actual conflict of interest . . . to cases involving ‘concurrent representation’”—that is,

21

simultaneous representation of two or more defendants. Rowland v. Chappell, 876 F.3d

22

1174, 1192 (9th Cir. 2017) (citing Mickens, 535 U.S. at 175); see Earp v. Ornoski, 431

23

F.3d 1158, 1184 (9th Cir. 2005) (“The Mickens Court specifically and explicitly concluded

24

that Sullivan was limited to joint representation. . . . ”). The presumption of prejudice is

25

needed in cases of concurrent representation because of “the high probability of prejudice

26

arising from multiple concurrent representation, and the difficulty of proving that

27

prejudice.” Mickens, 535 U.S. at 175; see Rowland, 876 F.3d at 1192. However, “[n]ot all

28

attorney conflicts present comparable difficulties,” and the Mickens Court criticized circuit

- 37 -

1

courts for applying “Sullivan ‘unblinkingly’ to ‘all kinds of alleged attorney ethical

2

conflicts,’” including cases involving personal or financial interests. Mickens, 535 U.S. at

3

174 (citation omitted); see Rowland, 876 F.3d at 1192.

4

Because the alleged conflict of interest here does not involve concurrent

5

representation, Sullivan does not apply. Greene cannot show an actual conflict of interest

6

that would lead to a presumption of prejudice. Accordingly, to be entitled to relief on this

7

claim, Greene must demonstrate prejudice under Strickland. See, e.g., Rodrigues, 347 F.3d

8

at 823; United States v. Walter-Eze, 869 F.3d 891, 900 (9th Cir. 2017) (explaining that

9

Strickland analysis applies in the absence of an actual conflict under Sullivan). He cannot

10

make that showing.

11

In Claim 4(A), Greene alleged in part that counsel performed ineffectively at the

12

guilt phase of trial by advising him to testify untruthfully about the manner in which he

13

killed the victim. (Doc. 82 at 72–76.) Because this claim was raised and denied during the

14

PCR proceedings, the Court addressed it on the merits, concluding that the PCR court’s

15

ruling was not based on an unreasonable application of Strickland. (Doc. 93 at 11.)

16

The PCR court rejected Greene’s claim that counsel performed ineffectively by

17

presenting his testimony at trial, finding that Greene suffered no prejudice. The court noted

18

that Greene’s own Strickland expert testified there was no reasonable probability of a

19

different verdict if Greene had not testified. (Doc. 121-1, Ex. C, ME 1/10/03.) The court

20

then explained:

21
22
23
24
25
26
27
28

The basic problem with Defendant’s argument is its logic. A defendant who
falsely claims to have killed a victim in a rage does not thereby provide a
jury with sufficient evidence to convict him of killing with premeditation.
Such a conviction must be established, as it was in this case, by evidence
other than that of the Defendant’s lies. Accordingly, the Court finds that
Defendant’s false testimony played no role in his convictions.
Similarly, his false testimony did not influence the Court’s sentencing
decisions. . . . The Court arrived at its decision to sentence Defendant to death
based solely on the aggravating and mitigating evidence. Defendant’s
untruthful testimony neither established aggravation nor rebutted mitigation.
Accordingly, the Court finds that Defendant’s false testimony played no role
in its choice of sentences.
. . . Defendant argues that his trial counsel was ineffective for even calling
him to testify. . . . As noted above, the Court finds no connection between
- 38 -

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

Defendant’s untruthful testimony and his convictions and sentence. He thus
fails to prove that he was prejudiced by his decision to testify. In any event,
the decision to testify was his, not his counsel’s, though the decision was
made with counsel’s advice.
(Id. at 3–4.)
In reviewing the PCR court’s decision, this Court agreed that Greene’s testimony
did not prejudice him at either the guilt or the penalty stages of trial. (Doc. 93 at 11.) There
was not a reasonable probability of a different verdict if Greene had testified truthfully
about the weapon he used to kill the victim or if he had remained silent and left uncontested
the evidence suggesting he acted with premeditation and for pecuniary gain. (Id.) Without
Greene’s testimony, the jury would have been left with no information about his condition
at the time of the crime, including the fact that he was suffering the effects of withdrawal
following a days-long methamphetamine binge. (Id.)
In sum, even if there were a conflict of interest, Greene was not prejudiced by
counsel’s decision to present his testimony. The case against him was strong; he admitted
he killed the victim, so the only remaining issues were whether the killing was premeditated
and whether it was carried out for pecuniary gain. Greene’s testimony was the only
evidence addressing either of those issues; without it, the jury and the court were left only
with the version of the crime supported by the State’s evidence. Greene was not prejudiced
by the alleged conflict of interest.
PCR counsel did not perform ineffectively by failing to raise this meritless conflict
of interest claim. See Atwood, 870 F.3d at 1059–60; Runningeagle, 825 F.3d at 982;
Hooper, 985 F.3d at 627. Cause for the claim’s default is therefore absent and the claim
remains defaulted and barred from federal review.
5.

Conclusion

The default of the claims remanded pursuant to Martinez is not excused. Because
the underlying claims are meritless, PCR counsel did not perform ineffectively in failing
to raise them. Therefore, cause for their default does not exist. That determination does not
change even when all of Greene’s claims of ineffective assistance of counsel, including the
exhausted claims that the Court already denied on the merits, are accumulated.
- 39 -

1

D.

2

As noted above, a petitioner may present evidence in support of his argument that

3

“cause” and “prejudice” exist under Martinez to excuse the default of a claim of ineffective

4

assistance of trial counsel. Dickens, 740 F.3d at 1321; see Woods, 764 F.3d at 1138 n.16.

Evidentiary Development

5

Greene asks the Court to expand the record to include the exhibits attached to his

6

supplemental Martinez brief. (Doc. 116 at 119–21, 126–30, 132–41.) The Court will grant

7

that request and expand the record to includes Exhibits 1–54 (Docs. 116–118).

8

Greene also seeks discovery and an evidentiary hearing. (Doc. 116 at 118–45.) The

9

Court will deny these requests. Expansion of the record provides sufficient evidence for

10

the Court to undertake its analysis under Martinez. See Phillips v. Ornoski, 673 F.3d 1168,

11

1179 (9th Cir. 2012) (explaining that a court has the discretion to deny an evidentiary

12

hearing where the documentary evidence is sufficient to decide the issue).

13

The expanded record includes declarations and reports from all the named witnesses

14

Greene seeks to depose and to call at a hearing. The Court has accepted as true the contents

15

of those documents, including the experts’ diagnoses. Greene has not alleged that the

16

testimony of any live witness would differ from the contents of their declarations. See

17

Runningeagle, 825 F.3d at 990 (concluding that the district court did not abuse its

18

discretion in denying an evidentiary hearing where “[t]he expanded record included the

19

declarations of witnesses who would testify at a live hearing, and [the petitioner] made no

20

showing that their testimony would differ materially from their declarations”); Williams v.

21

Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (explaining that “oral testimony and cross-

22

examination were not necessary because the documentary evidence submitted fully

23

presented the relevant facts.”); Hooper, 985 F.3d at 632–33 (“Because Hooper fails to show

24

what additional evidence he could have obtained from discovery or an evidentiary hearing

25

to support that he was prejudiced by [trial counsel’s] performance, the district court did not

26

abuse its discretion in denying his requests for discovery and an evidentiary hearing.”).

27
28

Greene’s request for evidentiary development is therefore granted in part and denied
in part.

- 40 -

1

II.

McKinney Remand

2

In McKinney, the Ninth Circuit held that the Arizona Supreme Court, for a period

3

of more than 15 years, violated Eddings in its capital sentencing analysis by requiring a

4

defendant to show a causal nexus between his proffered mitigating evidence and the crime.

5

McKinney, 813 F.3d at 802.17 On December 12, 2016, the Ninth Circuit expanded the

6

remand in this case to include the impact of McKinney on Greene’s habeas petition. (Doc.

7

128.)

8

A.

Applicable law

9

A sentencer may not “refuse to consider, as a matter of law, any relevant mitigating

10

evidence.” Eddings, 455 U.S. at 114 (emphasis in original); see Lockett v. Ohio, 438 U.S.

11

586, 604 (1978). Applying Lockett and Eddings, the Supreme Court has held that a state

12

cannot adopt a “causal nexus” rule—that is, a rule precluding a sentencer from considering

13

mitigating evidence unless a causal connection is established between the evidence and the

14

murder. Tennard v. Dretke, 542 U.S. 274, 287 (2004). While the sentencer “may determine

15

the weight to be given relevant mitigating evidence,” it “may not give it no weight by

16

excluding such evidence from [its] consideration.” Eddings, 455 U.S. at 114–15. The

17

sentencer may, however, consider “causal nexus . . . as a factor in determining the weight

18

or significance of mitigating evidence.” Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir.

19

2011), overruled on other grounds by McKinney, 813 F.3d at 819.

20

In McKinney, the Ninth Circuit held that the Arizona Supreme Court, during a time-

21

period encompassing its review of Greene’s case, “consistently” applied an impermissible

22

causal nexus test to mitigating evidence in capital cases. McKinney, 813 F.3d at 803. The

23

court explained:

24

The decisions of the Arizona Supreme Court make clear that family
background or a mental condition could be given weight as a nonstatutory
mitigating factor, but only if defendant established a causal connection
between the background or condition and his criminal behavior. For a little

25
26
27
28

17

From State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989), to State v. Anderson, 210
Ariz. 327, 111 P.3d 369 (2005). The Arizona Supreme Court reviewed Greene’s sentence
in 1998.
- 41 -

1

over fifteen years, the Arizona Supreme Court routinely articulated and
insisted on its unconstitutional causal nexus test. . . .

2
3

Id. at 815.

4

B.

Additional facts

5

1.

Trial Court

6

The trial court at sentencing found that the State had proved two aggravating factors,

7

that the murder was committed for pecuniary gain and that the murder was especially

8

heinous and depraved. (Doc. 135-2, Ex. C at 1–5.) The court found that Greene had not

9

proved any statutory mitigating circumstances. (Id.at 5.)

10
11
12
13
14
15
16
17
18
19
20
21

The court made the following findings with respect to Greene’s nonstatutory
mitigating evidence:
[I]t is clear from the evidence that prior to the defendant’s use of drugs, that
he had been able to obtain an education and successfully complete a trade
school so as to be able to support himself and his family. The evidence further
shows that the defendant was capable through his own efforts of entering into
and maintaining what could have become a good marriage and productive
life.
The court finds that, in his earlier life, the defendant was a positive role model
and influence on his step-brother. The defendant was able to have this
influence notwithstanding the fact that he had come out of his parents’
dysfunctional lifestyles.
The Court has considered the testimony of the defendant’s ex-wife, mother
of his children, who worries about her children.
The Court finds the defendant’s drug usage and withdrawal to be a nonstatutory mitigating circumstance.
The Court finds the defendant’s lack of a felony record to be a non-statutory
mitigating circumstance.

22
23

(Id. at 5–6.) The court concluded that the mitigating circumstances were not sufficient to

24

call for leniency and sentenced Greene to death. (Id. at 6.)

25

2.

Arizona Supreme Court

26

In its independent review of Greene’s death sentence, the Arizona Supreme Court

27

affirmed the trial court’s finding that Greene committed the murder for pecuniary gain.

28

Greene, 192 Ariz. at 438–39, 967 P.2d at 113–14. The court held, however, that the trial

- 42 -

1

court erred in finding the murder especially heinous or depraved. Id. at 439–41, 967 P.2d

2

at 114–16. Specifically, the court held that Greene’s statements after the murder, while

3

they showed Greene’s “vile state of mind and callous attitude,” did not establish that he

4

relished the murder as required for the (F)(6) aggravating circumstance.18 Id. at 441, 967

5

P.2d at 116.

6

Turning to the mitigating circumstances, the supreme court agreed with the trial

7

court that Greene had failed to prove any of the statutory mitigators. Id. The court

8

specifically found that Greene failed to prove, under § 13–703(G)(1), that his capacity to

9

appreciate the wrongfulness of his conduct or conform his conduct to the requirements of

10

the law was impaired. Id.

11

The court then discussed Greene’s proffered nonstatutory mitigating circumstances.

12

The court first addressed Greene’s drug use and withdrawal, recounting Greene’s

13

testimony that he used methamphetamine regularly in the days leading up to the murder,

14

eating very little and not sleeping. Id. at 442, 967 P.2d at 117. The court noted, however,

15

that Greene testified he was not under the influence of methamphetamine at the time he

16

killed Johnson. Id. The court continued:

17

Nor was there expert testimony of any causal connection between drug use
or withdrawal and the offense. See State v. Rienhardt, 190 Ariz. 579, 592,
951 P.2d 454, 467 (1997) (rejecting history of substance abuse as a
mitigating circumstance when no evidence establishes a causal connection
between the drug abuse and the crime). While it is true that Greene killed to
get money to buy drugs, this is not the sort of causal connection that would
support a claim of mitigation. To hold that a motivation to kill fueled in part
by a desire for drugs is mitigating would be anomalous indeed. We reject this
claimed mitigating circumstance.

18
19
20
21
22

Id.

23

The court next addressed Greene’s dysfunctional family history. The court noted

24

that Greene’s parents separated when he was thirteen. Id. He then lived with his father, a

25
26
27
28

After the murder, Greene told Bevan he had “clubbed” a “faggot.” Greene, 192 Ariz. at
440, 967 F.2d at 115. After his arrest, Greene wrote a letter stating that he was “the ‘wrong
white boy’ to be picked up by a ‘faggot’ who ended up with ‘his fuckin’ skull caved in.’”
Id. He wrote other letters emphasizing that he was a “convicted murderer” who was writing
from “death row alley.” Id. at 441, 967 P.2d at 116.
18

- 43 -

1

trapper who migrated between Arizona and Washington. Id. He received little formal

2

education during this period. Id. He later returned to Washington to live with his mother.

3

Id. She was a partier whose use of drugs and alcohol contributed to Greene’s own problems

4

with methamphetamine. Id. The court then explained:

5
6
7
8
9
10
11
12
13

This court has held that “family background may be a substantial mitigating
circumstance when it is shown to have some connection with the defendant's
offense-related conduct.” State v. Towery, 186 Ariz. 168, 189, 920 P.2d 290,
311 (1996), cert. denied, 519 U.S. 1128, 117 S.Ct. 985, 136 L.Ed.2d 867
(1997). Greene’s mother introduced him to methamphetamine, and
encouraged, or at least failed to discourage, his use through her own open
and flagrant use. But because adults have personal responsibility for their
actions, adult offenders have a difficult burden of proving a connection
between family background and offense-related conduct. At the time of the
murder, Greene was 29 years old; he had had little or no contact with his
mother in years. Greene’s mother may have introduced him to drugs, but
Greene failed to show how this influenced his behavior on the night of the
murder. Thus, we do not find Greene’s dysfunctional family history to be a
mitigating circumstance.
Id. (citations omitted).

14

The court next examined Greene’s lack of a felony record, finding it was a

15

mitigating circumstance but “entitled to little weight,” and his educational achievements,

16

which were “slightly mitigating.” Id. at 442–43, 967 P.2d at 117–18. The court rejected as

17

mitigating circumstances Greene’s claim to have been a good family member and a

18

productive member of society. Id. at 443, 967 P.2d at 118. The court found that Greene’s

19

positive influence on his step-brother was “a single good deed, removed in time from the

20

crime” and therefore was not mitigating. Id. The court also found that the effect of Greene’s

21

execution on the emotional well-being of his children had “some mitigating weight.” Id.

22

Greene’s purported remorsefulness was belied by the record and his capacity for

23

rehabilitation was likewise unsupported so the court rejected both as mitigating

24

circumstances. Id.

25

Independently weighing the mitigating circumstances against the sole remaining

26

aggravator—the “very strong” pecuniary gain factor—the Arizona Supreme Court

27

concluded that “the mitigation, considered individually and collectively, is not sufficiently

28

substantial to warrant leniency.” Id. at 444, 967 P.2d at 119.

- 44 -

1

C.

2

Greene alleged an Eddings error in Claim 6(C) of his amended habeas petition.

3

(Doc. 82-5 at 117.) The parties disagree about whether this claim was exhausted in state

4

court. Respondents argue that Greene procedurally defaulted the claim by failing to raise

5

it in a motion for reconsideration after the Arizona Supreme Court affirmed his death

6

sentence on direct appeal. (Doc. 135 at 10.) Greene argues that the claim was exhausted by

7

the Arizona Supreme Court’s independent review of his death sentence. (Doc. 132 at 3–4.)

8

The Court agrees. At the time of Greene’s sentence, the Arizona Supreme Court

9

independently reviewed each death sentence to determine the presence or absence of

10

aggravating and mitigating factors and the weight to which the factors were

11

entitled. See State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983). That review was

12

sufficient to exhaust Greene’s Eddings claim. See McKinney v. Ryan, No. CV 03-774-

13

PHX-DGC, 2009 WL 2432738, at *19 (D. Ariz. Aug. 10, 2009) (finding petitioner’s claim

14

that the trial court failed to “properly consider” his mitigating evidence was exhausted by

15

the Arizona Supreme Court’s independent review of his death sentence); see also Djerf v.

16

Schriro, No. CV-02-0358-PHX-JAT, 2008 WL 4446535, at *23 (D. Ariz. Sept. 30, 2008)

17

(“While the Arizona Supreme Court’s independent review does not encompass any and all

18

alleged constitutional error at sentencing, the Court finds that it did encompass Petitioner’s

19

claim that the trial court violated the Eighth and Fourteenth Amendments by failing to

20

consider all proffered mitigating evidence.”).

Analysis

21

In considering Greene’s argument that the Arizona courts imposed an

22

unconstitutional nexus test on his mitigating evidence, the Court looks to Ninth Circuit

23

cases applying McKinney. In Greenway v. Ryan, 866 F.3d 1094 (9th Cir. 2017), the Ninth

24

Circuit explained that “We said in McKinney that the Arizona courts had ‘consistently’

25

applied the causal-nexus test. . . . We did not say, however, that Arizona had always applied

26

it.” Id. at 1095 (citation omitted). In Apelt v. Ryan, 878 F.3d 800 (9th Cir. 2017), the court

27

offered additional guidance. The court discussed several “critical factors” to be considered

28

in determining whether the Arizona Supreme Court violated Eddings by applying a causal

- 45 -

1

nexus test in cases upholding a death sentence. Apelt, 878 F.3d at 839–40. These factors

2

include whether the trial court “state[d] a factual conclusion that any of [the petitioner’s]

3

proffered mitigation failed to affect his conduct”; whether the Arizona Supreme Court

4

“state[d] a factual conclusion that any of [the petitioner’s] proffered mitigation would have

5

influenced him not to commit the crime”; and whether the Arizona Supreme Court cited

6

either Ross or Wallace in reviewing the mitigating evidence.19 Id. at 840; see Ramirez v.

7

Ryan, 937 F.3d 1230, 1250 (9th Cir. 2019), cert. granted sub nom., Shinn v. Ramirez, 2021

8

WL 195173 (Mem) (May 17, 2021) (No. 20-1009).

9

In Greene’s case, the trial court stated only that it had “carefully considered all the

10

facts, evidence and arguments presented in mitigation, including the defendant’s

11

background and trial testimony, the testimony of all defense witnesses, and all written

12

material presented by the defendant.” (Doc. 135-2, Ex. C at 5.) The trial court, accordingly,

13

did not impose a causal nexus test on its consideration of Greene’s mitigating evidence,

14

and it found, for example, that Greene’s drug use and withdrawal were a nonstatutory

15

mitigating circumstance. (Id. at 6); see Ramirez, 937 F.3d at 1250 (finding that the court

16

did not reject mitigation as “a matter of law” where “the trial court found nonstatutory

17

mitigating factors”). The trial court, in other words, did not state a factual conclusion that

18

Greene’s proffered mitigation failed to affect his conduct. Id.; see Apelt, 878 F.3d at 840.

19

The Arizona Supreme Court, however, did apply a causal nexus test to Greene’s

20

mitigating evidence. In fact, Greene’s case is listed in McKinney as an example of the court

21

applying such a test. McKinney, 813 F.3d at 816. The court “rejected” as a mitigating

22

circumstance Greene’s drug use and withdrawal because no expert testimony had drawn a

23

“causal connection between drug use or withdrawal and the offense.” Greene, 192 Ariz. at

24

442, 967 P.2d at 117. The court likewise found that Greene’s dysfunctional family history

25

was not a mitigating circumstance because he failed to show how it “influenced his

26

behavior on the night of the murder.” Id.

27
28
19

State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994).
- 46 -

1

Having determined that an Eddings error occurred, the Court must next consider

2

whether the Arizona Supreme Court’s application of a causal nexus test constituted

3

harmless error. See McKinney, 813 F.3d at 822. The question is whether the error had a

4

“substantial and injurious effect or influence” on the court’s independent review. Id.

5

(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); Greenway, 866 F.3d at 1100.

6

If a federal habeas judge is in “grave doubt” about whether a constitutional trial error had

7

a substantial and injurious effect or influence, the error is not harmless and “the petitioner

8

must win.” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 436, 445 (1995)). The “risk of

9

doubt” is “placed on the State.” Id. (quoting O’Neal, 513 U.S. at 439). The Court concludes

10

that the error in Greene’s case was not harmless.20

11

At sentencing, Greene presented substantial evidence of a dysfunctional childhood.

12

He experienced isolation and instability. Both of his parents were bad influences. His

13

mother’s irresponsibility contributed to his own drug abuse and exposed him to a sexual

14

predator. He inherited his father’s extremism and homophobia. Greene likewise presented

15

substantial evidence of chronic drug use, methamphetamine use in the days before the

16

murder, and methamphetamine withdrawal at the time of the murder. This evidence was

17

“central to his plea for leniency”—in fact, it constituted the whole of his plea for leniency—

18

“but the Arizona Supreme Court, as a matter of law, gave it no weight.” McKinney, 813

19

F.3d at 823; see Spreitz v. Ryan, 916 F.3d 1262, 1278, 1281 (9th Cir. 2019) (holding that

20

the Arizona Supreme Court’s failure “to give any meaning to Spreitz’s longstanding

21

alcohol and substance abuse” left a “critical void in Spreitz’s narrative” and was not

22

harmless error).

23

In Greene’s case, the likelihood of harm from the Eddings error is magnified by the

24

fact that there was a single aggravating factor supporting the death sentence. In McKinney,

25

the Ninth Circuit found an Eddings error where the Arizona Supreme Court refused to give

26

weight to the petitioner’s evidence of PTSD. 813 F.3d at 823. The court proceeded to find

27
28

20

Because the Court finds that the Eddings error was not harmless, it does not address
Greene’s argument that the harmless error standard should not apply.
- 47 -

1

that the error was not harmless, even in the face of three “important aggravating factors,”

2

including a prior conviction for a crime of violence, pecuniary gain, and cruelty. Id. The

3

court concluded that the PTSD evidence, if properly considered, “would have had a

4

substantial impact on a capital sentencer.” Id. In Spreitz, the Ninth Circuit held that the

5

Eddings error was not harmless even where the Arizona Supreme Court found that several

6

other mitigating circumstances had been proved and the aggravating factor was especially

7

severe. 916 F.3d at 1281. In Greene’s case, the Arizona Supreme Court excluded from

8

consideration as mitigating circumstances the most powerful evidence Greene offered at

9

sentencing.

10

The Arizona Supreme Court committed an Eddings error when it applied a causal

11

nexus test and failed to consider Greene’s mitigating evidence. The error was not

12

harmless.21

13

CERTIFICATE OF APPEALABILITY

14

Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner

15

cannot take an appeal unless a certificate of appealability has been issued by an appropriate

16

judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the

17

district judge must either issue or deny a certificate of appealability when it enters a final

18

order adverse to the applicant. If a certificate is issued, the court must state the specific

19

issue or issues that satisfy 28 U.S.C. § 2253(c)(2).

20

Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner

21

“has made a substantial showing of the denial of a constitutional right.” This showing can

22

be established by demonstrating that “reasonable jurists could debate whether (or, for that

23

matter, agree that) the petition should have been resolved in a different manner” or that the

24
25
26
27
28

21

There is no inconsistency between this finding and the Court’s determination that Greene
failed to establish prejudice from the performance of trial counsel and PCR counsel. The
Brecht harmless error standard is lower than Strickland’s prejudice standard. See Kyles v.
Whitley, 514 U.S. 419, 436 (1995); Pirtle v. Morgan, 313 F.3d 1160, 1173 n.8 (9th Cir.
2002) (“[H]armless error analysis under Brecht . . . involves a lower standard than
Strickland’s standard for prejudice.”).

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1

issues were “adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at

2

484. For procedural rulings, a certificate of appealability will issue only if reasonable

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jurists could debate whether the petition states a valid claim of the denial of a constitutional

4

right and whether the court’s procedural ruling was correct. Id.

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The Court finds that reasonable jurists could debate whether the Court correctly
applied Martinez in finding that the default of Claim 4(C)(1) was not excused.

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…

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1
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5
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CONCLUSION
For the reasons stated above, the default of Claims 1, 4(A), 4(C)(1) and (2), and 5
is not excused under Martinez. The claims are barred from federal review.
The Court finds that the Arizona Supreme Court violated Eddings by subjecting
Greene’s mitigating evidence to an unconstitutional causal nexus test. The error was not
harmless.
Accordingly,
IT IS HEREBY ORDERED that Claims 1, 4(A), 4(C)(1), 4(C)(2), and 5 are denied
as procedurally defaulted and barred from federal review.

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IT IS FURTHER ORDERED granting Greene’s request to expand the record. The

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record is expanded to include Exhibits 1–54 (Docs. 116–118.) Greene’s requests for

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discovery and an evidentiary hearing are denied.
IT IS FURTHER ORDERED that Greene’s amended petition for writ of habeas
corpus is granted unless the State of Arizona, within 120 days from the entry of this
Judgment, initiates proceedings either to correct the constitutional error in Greene’s death
sentence or to vacate the sentence and impose a lesser sentence consistent with the law.
IT IS FURTHER ORDERED that the Clerk of Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of
this Order to Tracie K. Lindeman, Clerk of the Arizona Supreme Court, 1501 W.
Washington Street, Phoenix, Arizona 85007-3329.

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Dated this 13th day of August, 2021.

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