Anthony Sully v. Robert Ayers, Jr.
2013 U.S. App. LEXIS 16226
| 9th Cir. | 2013Background
- Anthony John Sully, a former police officer, was convicted by a California jury of six counts of first‑degree murder (multiple‑murder special circumstance) and sentenced to death after evidence tied him to torture, rape, and the disposal of six victims.
- At trial the prosecution presented extensive physical evidence and testimony (including Tina Livingston under a plea agreement) and evidence of other violent acts; Sully testified and denied the murders, admitting heavy cocaine use but denying it impaired his culpability.
- Postconviction, Sully filed state and then federal habeas petitions alleging ineffective assistance of trial counsel (failure to investigate/present mental‑illness mitigation, failure to develop a mental‑state defense, failure to investigate/raise competency), and that he was actually incompetent to stand trial.
- Sully submitted psychiatric declarations and contemporaneous hospital records indicating severe mental disorders and possible cocaine‑induced psychosis that were not presented at trial; trial counsel is deceased so factual development was via declarations of co‑counsel and experts.
- The California Supreme Court summarily denied the state habeas petition; the federal district court granted respondent summary judgment on the certified claims and denied an evidentiary hearing. Sully appealed; the Ninth Circuit affirmed.
Issues
| Issue | Sully’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Claim 3: Penalty‑phase IAC for failing to investigate/present mental‑illness mitigation | Counsel failed to develop and present psychiatric evidence that would have created a reasonable probability of a different sentence | Even if performance deficient, additional psychiatric evidence was of mixed/negative value and would not have created a substantial likelihood of a different outcome given overwhelming aggravation | Affirmed — no unreasonable application of Strickland prejudice prong under AEDPA |
| Claim 4: Guilt‑phase IAC for failing to investigate/present a mental‑state defense | Counsel failed to investigate/offer evidence that Sully’s mental illness/cocaine psychosis negated the requisite intent for first‑degree murder | Proffered evidence lacks nexus to each specific killing and would not have created reasonable doubt on each count | Affirmed — no prejudice shown; California court reasonably could deny claim |
| Claim 11: Actual incompetence to stand trial and to waive rights | Sully was incompetent at trial due to paranoia, psychosis, memory deficits, and inability to assist counsel | Trial record (extensive, coherent testimony and penalty‑phase statement), contemporaneous evaluations, and behavior undermine claims of incompetence | Affirmed — California court reasonably could find competence; no AEDPA relief |
| Claim 5: IAC for failing to investigate/present incompetence evidence or request competency hearings | Counsel should have developed contemporaneous competency evidence and sought hearings | Even assuming deficient performance, Sully cannot show prejudice because substantial record evidence supports competence | Affirmed — no prejudice; district court properly granted summary judgment |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective‑assistance test)
- Williams v. Taylor, 529 U.S. 362 (AEDPA deference and standards for unreasonable application)
- Drope v. Missouri, 420 U.S. 162 (standard for competence to stand trial)
- Delaware v. Van Arsdall, 475 U.S. 673 (Confrontation Clause limits on cross‑examination)
- Ohio v. Roberts, 448 U.S. 56 (hearsay admissibility under Confrontation Clause pre‑Crawford)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause rule governing testimonial hearsay)
- White v. Illinois, 502 U.S. 346 (spontaneous utterance exception to confrontation concerns)
- Atkins v. Virginia, 536 U.S. 304 (context on mitigation vs. showing defendant beyond rehabilitation)
- Cooper v. Calderon, 255 F.3d 1104 (need to show prejudice as to each multiple murder count)
- Boyde v. Brown, 404 F.3d 1159 (retrospective incompetence evidence disfavored)