Correll v. Schriro

CORRELL, Emerson Michael

Petitioner-Appellant, Warden, RYAN, Acting Di- L.

Charles

rector, Department of Correc- Schriro, Director,

tions; Re- Dora B.

spondents-Appellees.

No. 03-99006. Appeals,

United States Court

Ninth Circuit.

Argued Sept. 2005. Submitted

Filed Oct. Sands,

Thomas Phalen and Jon M. Phoenix, AZ, for the appellant. Beene, James P. Cattani, Kent E. Terry Goddard, AZ, Phoenix for the appel- lee. SCHROEDER,

Before: Judge, Chief THOMAS, O’SCANNLAIN and Circuit Judges.

THOMAS, Judge: Circuit Correll, Michael Emerson an Arizona death, inmate sentenced to appeals the district court’s denial petition of his for a writ of corpus following habeas our re- mand for an evidentiary hearing. We re- verse.

I The factual history of this case was de- tailed in our opinion, earlier Correll v. Stewart, hearing on his claim of ineffective assis- 1408-10 Cir. I, I”). sentencing. tance of counsel at 1998) (“Correll was convicted 137 F.3d at 1420. We remanded that issue degree jury in 1984 of first by an Arizona to the district court with instructions to murder, murder, degree attempted first evidentiary hearing hold an on the claim. robbery, and first de kidnapping, armed Id. in a homi burglary triple for his role gree at 1408. He was sentenced remand,

cide. On the district court conducted judge. trial Id. at 1410. His death day evidentiary hearing. Applying a nine by the Arizona Su upheld conviction was the standards set forth in Strickland Washington, Ariz. State v. U.S. S.Ct. preme Court. (1984), (1986). However, progeny, 80 L.Ed.2d 674 and its P.2d 721 perform- district concluded that his death sen Supreme Court modified attorney ance of at sentencing Correll’s invali to one of the victims and tence as deficient, but Correll suffered aggravating factor. Id. at 730- dated one Therefore, no prejudice. the district court 31; 734-35. granted judgment against on Correll his 1987, timely petition filed a In Correll corpus petition. federal This habeas time- Ari- pursuant relief post-conviction for ly appeal followed. Procedure 32. zona Rule of Criminal petition Because for a writ of Correll’s multiple asserted vio- petition, Correll corpus habeas was filed before the effec- includ- rights, his constitutional lations of tive date of the Antiterrorism and Effec- of right to the effective assistance his 1996, Penalty tive Act of No. Death Pub.L. during guilt penalty phas- counsel 104-132, (“AEDPA”), pre- 110 Stat. 1214 confrontation, trial, right of his his es AEDPA governs law our consideration of reliability capital sen- right and his the merits of the claims. Lindh v. Mur- supple- filed tencing. Correll later five 320, 327, 2059, phy, 521 U.S. 117 S.Ct. 138 petition, adducing to his ments (1997); Wood, 114 L.Ed.2d 481 v. Jeffries attorney’s impairment his mental and his banc). (9th Cir.1997) (en 1484, 1494 ineffectiveness. The Arizona trial law, pre-AEDPA we consider a Under summarily petition dismissed Correll’s alleging claim ineffective assistance of for subsequently denied Correll’s motion and fact question counsel as a mixed law rehearing. Supreme The Arizona Court Rocha, that we review de novo. Rios v. without comment. denied review Cir.2002). (9th 796, 799 n. 4 We 299 F.3d review the district court’s denial of Cor- subsequently petition filed a Correll petition de novo and the dis- rell’s habeas corpus in federal district writ of habeas error. findings trict factual for clear court’s § court under 28 U.S.C. 2254. Correll alleged fifty-three constitutional violations trial, sentencing, during ap- at II The district court deter- pellate process. long As the Court has twenty-six of claims mined that instructed, right to the Sixth Amendment barred, granted then procedurally were in a criminal trial includes “the counsel summary judgment against coun right to the effective assistance of remaining constitutional claims. Richardson, McMann v. 397 U.S. sel.” 14, 1441, 759, we affirmed all of the district appeal,

On 771 n. 90 S.Ct. 25 L.Ed.2d (1970). “all criti except right as to Correll’s conten- 763 This extends to court’s order Iowa v. evidentiary stages process,” cal of the criminal that he entitled to an tion 1010 (9th Cir.2001) (en 77, 80-81, 1379, 915,

Tovar, ford, 124 S.Ct. 270 F.3d 927 541 U.S. banc) (2004), Williams, (quoting including capital 529 U.S. 158 L.Ed.2d 1495) (alterations original). 120 S.Ct. Woodford, v. 279 F.3d sentencing, Silva (9th Cir.2002). penalty phase When it comes to the of a “Because trial, capital imperative that all “[i]t consequences per- deficient potential relevant information be un- during capital sentencing, we formance earthed for consideration.” Caro v. Cal- apply a more must be sure not lenient deron, Cir.1999), 165 F.3d to the performance standard of as amended. guilt phase to the phase apply than we Blodgett, v. 970 F.2d trial.” Mak ABA Standards for Criminal Justice (9th Cir.1992). provide guidance as to the obligations attorneys criminal standard, conducting the familiar Strickland Under Beard, investigation. Rompilla an prevail on his claim of ineffective assis 374, -, 2456, 2466, U.S. 125 S.Ct. during phase tance of counsel (2005); Williams, L.Ed.2d 360 529 U.S. at trial, must demonstrate first 396, 120 S.Ct. 1495. The standards in of his counsel fell performance effect at capital the time of Correll’s trial objective of reasonable below standard clearly described the criminal defense second, law- sentencing, that “there ness yer’s duty investigate, providing specifi- probability is a reasonable but cally that: errors, unprofessional counsel’s the result would have been differ proceeding duty lawyer It is the of the to conduct a 694, ent.” 466 U.S. at 104 S.Ct. 2052. prompt investigation of the circum- Strickland, we an Under measure attor stances of the explore case and to all ney’s against “objective performance leading avenues to facts relevant to the reasonableness,” standard of measured merits of the case and penalty in the prevailing professional “under norms.” investigation event of conviction. The 688, 104 Id. at S.Ct. 2052. always should include efforts to secure information in possession of the aspects penal- There are two of Correll’s prosecution and law enforcement au- ty at issue on this phase appeal: duty thorities. The to investigate exists defenses, investigation possible and regardless of the accused’s admissions presentation penalty phase of the de- lawyer or statements to the of facts fense. constituting guilt or the accused’s stated plead guilty. desire to

A ABA Standards Criminal Justice 4-4.1 duty penalty Counsel has (2d Supp.). ed. 1982 phase a thorough investigation “to conduct background.” defendant’s Landri It undisputed in this case that Schriro, (9th gan v. 441 F.3d attorney Correll’s investigation did little banc) Cir.2006) (en (citing Williams v. potential mitigating presenta evidence for 362, 396, Taylor, 529 U.S. 120 S.Ct. tion at the phase, although “[a]de- (2000)). perform 146 L.Ed.2d 389 “To ef quate consultation attorney between and fectively in penalty phase capital of a client is an essential competent element of case, counsel must conduct sufficient inves representation of a criminal defendant.” tigation engage and in prepara Tucker, sufficient United States v. 716 F.2d (9th (citation Cir.1983) omitted). tion to ‘present[ explain[ ] be able to and ] Correll significance of all the available alleges [miti only defense counsel met with ” gating] once, Mayfield evidence.’ v. him Wood- five minutes between the I, cooperate, 137 would but he admitted that he penalty phase. Correll trial and father, sister, testified at met once with Correll’s at 1412. Defense counsel F.3d brother, met with evidentiary hearing that he and “around the kitchen table at time; however, time,” it is probably spent than one the same “[a] more the record that the consul- apparent couple from hours” with them. Counsel did not records, not extensive. although tation was obtain Correll’s school admitted may that they he have contained in Penalty phase investigations mitigating evidence. He failed to obtain into inquiries should include capital cases prior and rec- police reports convictions family background and evidence social regarding ords the time when Correll was abuse, impairment, physi potential mental custody of the California Youth Au- history, history cal health thority. did not obtain Counsel Correll’s Schriro, alcohol abuse. Summerlin inquiry medical records and made no Cir.2005) (en banc). An an X-ray diagnos- about whether or other investigation should include examination performed tic test was to determine records, school physical mental and health any injury whether suffered brain records, and criminal records. Id. “De following an incident which a wall fell on review personally fense counsel should also head. Correll’s prosecution plans all that the During evidentiary hearing, counsel penalty phase proceed introduce could not recall what efforts he made to ings, including pertaining the records records, al- gather psychiatric history prior criminal convictions.” 2465). though defense counsel did remember that (citing Rompilla, 125 S.Ct. he did not obtain records from Correll’s potential Although he was aware stays at health centers.1 various mental existed, mitigating evidence defense coun- that the princi- Defense counsel testified any might explore sel did not avenues in- pal mitigation sought evidence he was Indeed, development lead to of evidence. show as a formation mitiga- light in of the abundance classic “good person” and one who had “done aware, of which counsel was tion evidence good deeds.” But even this limited inves- complete investigate failure to his almost unreasonably For tigation was narrow.2 startling. attorney His knew Curry, chaplain a with example, Reverend from a among things, other Correll came willing Authority, Youth was the California a serious dysfunctional family, sustained testify on Correll’s behalf assist psy- injury, head was committed various could; indeed his wife told anyway he facilities, chiatric and that he was addicted counsel to contact the Reverend. yet defense counsel did not ob- drugs; Yet, Curry made. No contact was ever tain nor did he interview wit- the records if have testified testified that he would concerning these matters. Counsel nesses family members who contacted.3 did meet with the found, Woodford, conspiracy v. these at issue.” Allen 1. As the district court some of Rather, 823, Cir.2004). (9th destroyed the time of records were between investiga- likely type evidence available was the most the trial and the time of the habeas "person type portrays defendant as a tion. abuse, by warped whose moral sense was Further, scope such a limitation on the drugs, incapacity.” mental [or] mitigation investigation was unreasonable Curry specifically at the unlikely testimony was asked given was that the 3.Rev. that it evidentiary hearing had suc- "if Mr. Collins sufficient to "humanize[] would have been you, you getting ahold of during the time frame of the murder ceeded him anee, foregoing, competent on the the district since counsel would have

Based to conclude that defense court was correct mitigation.” made an effective case for provided representation counsel deficient Stewart, Smith v. 189 F.3d 1008-09 he failed to seek and obtain docu- when (9th Cir.1999). relating to Cornell's mental health ments magnitude of this error becomes conditions. Defense counsel’s and medical apparent when we consider the effect of investigate any far short of failure to falls the error under Arizona law. At time objectively against standard reasonable penalty phase proceedings, Arizona attorney might per- we measure

which penalty law mandated the death when the formance under standards the Sixth qualifying prior defendant had a conviction Amendment. if mitigating there was no evidence. Ariz. (1984). § ag- Rev.Stat. 13-703 One of the B gravating circumstances found the sen- important is no more hear “There tencing judge a previous violent felo- equity penalty phase in law or than the ny. State v. 715 P.2d at 731. Stewart, Gerlaugh of a trial.” v. capital Thus, present any the failure to (9th Cir.1997) (Rein 129 F.3d “all imposi- but assured the hardt, J., concurring dissenting). At tion of a death sentence under phase, capital a defendant penalty Summerlin, 640; law.” 427 F.3d at see “constitutionally right protected [] Lewis, also Evans v. 855 F.2d ... provide jury evi Cir.1988) Arizona, (noting that in once an Williams, dence.” 529 U.S. at aggravating prior ag- circumstance like a present mitigating S.Ct. 1495. “Failure to found, gravated felony was phase death was inev- capital evidence at the of a evidence, itable case constitutes ineffective assistance of without Calderon, counsel.” Bean 163 F.3d holding thus pursue failure to (9th Cir.1998). 1073, 1079 psychiatric prejudi- evidence constituted cially deficient performance). As anemic as the defense counsel’s case, was, presentation argued ag- miti State five investigation gating penalty phase gravating evidence at the factors. Correll’s defense coun- put worse. Defense counsel on no affirma disputed only sel few them. He dis- penalty phase tive defense whatsoever. cruel, puted heinous, that the crimes were single testify. He did not call a witness to depraved, argued and he that convic- any He did not introduce evidence. Rath tions for more than one homicide could not er, judge he elected to allow the to make a be used an aggravating factor because decision on whether to sentence Correll to authorizing the statute this factor was not solely death on the state’s based in effect on the offense date. At the evi- pre-sentence report. and the case, dentiary in hearing he conceded thought that he “it awas veritable certain- This was critical error. “The ty” two, that the court “at would find least present mitigating failure to evidence dur probably all five of case, aggravating penalty phase capital [the] of a are no tactical factors.” The court aggrava- where there considerations found four involved, perform- constitutes deficient ting factors. Collins, testify you have to on unhesitatingly come Mike CorreU's be- would have come “Yes, sir, responded half?” He I would help capital sentencing, Mike at his hearing, question

have.” Later in the answered, "Yes, you Curry not?” Rev. sir.” posed again, you by "Had been asked Steve Correll,” ar- liked Mr. that “it was a mitigation entire Defense counsel’s in less than one contained that went bad and that Michael was gument ripoff memorandum, which of a page influence,” and “he wasn’t under the here: in toto reproduced in the crimes.” the leader the influence was under A. Defendant put any did not on wit- Defense counsel drugs at the time the alcohol and of support mitiga- or his nesses Guy Snelling committed. offenses were sentencing memo does not tion case.4 His police with offi- in an interview stated three of the five attempt even to rebut was alcohol that there April cers on by factors aggravating urged State. at the time on the breath of Defendant sentencing, presentation his oral It is obvi- offenses were committed. factors, aggravating counsel mentioned the the conduct of the ous from this and any only, in form without substantial but they were under perpetrators, drugs legal position evidentiary support. or or of alcohol or both influence were committed. the time the offenses entirety argument penal- oral at the in ty phase approximately pages a follower consists of B. Defendant was Guy of the crimes. Snell- the commission The state trial court record transcript. in an interview with ing stated presentation states that “Defendant waives 14, 1984, that it was August counsel mitigating evidence.” Nabors was the leader clear John concession of most of Given his virtual making and was perpetrators the two aggravating argued by factors corrobo- the decisions. This is further State, presentation and waiver of the it Na- rated the fact that was John evidence, the outcome was obvi- mitigation Snelling Guy who knew bors imposition penalty. ous: of the death therefore, money and drugs illicit Court, re-weighing in plan- done the Nabors must have John factors, mitigating aggravating robbery. ning of the “sufficiently factors found no robbery, there was no C. Prior leniency.” to call for State substantial anyone would be reason believe high- 715 P.2d at 735. The Court Guy Snelling, and present other than presented in lighted the lack of evidence therefore, to kill prior plan there was no Rosen, noted that the “defendant Cady or Debra Robin Shawn testimo- expert D’Brito. offered no evidence or finding could base a ny on which we cooperated D. Defendant has wrongful- appreciate prepara- Office he was unable Adult Probation report. presentence tion of his Id. The Court was ness of his conduct.” attempt particularly dismissive age. E. Defendant’s in- pre-sentence cooperation count That, total, miti- was defense counsel’s factor, noting vestigation as a asked at the evidentia- gation case. When cooperate in interest defendant’s “[i]t ry hearing your sentencing “what was should not be sentencing; defendant that it strategy,” responded trial counsel self-serving for acts.” Judge Howe rewarded basically, “hoping was single drugs alcohol in the mention of and opposed to the dissent’s characterization 4. As single dr[awing] "repeatedly sentencing the sentenc- and a of counsel memorandum brief ing judge’s attention” to the likelihood point at the reiteration of that drugs and Correll was under the influence hearing. crime, a alcohol at the time of the there is but response demonstrated at his eviden- As Correll Correll’s obvious sub- tiary hearing, there was a substantial problems, parents stance abuse his inter- amount of evidence available for beatings kicking vened with and threats of penalty phase. at the presentation Correll Further, him out of the house. the staté endured an abusive childhood. His drug failed to recommend or alcohol treat- Witness, a mother was Jehovah’s whose despite frequent ment Correll’s contact her church came commitment to before juvenile with the authorities. family. spent her commitment to her She After Correll was shot in the arm at age church, often most of her time with hospital parents asked his to let neglecting her six children’s basic needs. him They come home. allowed him to required The children were to attend adult recuperate days home for three or four study nights her three a bible class with asking pa- before the state to sever their week, they If per night. for three hours time, rights. they rental At that cut all off they or were misbehaved indicated communication with their son and consid- confused or did not understand the reli- by ered him dead as required their doctrine, they gious punished. were Cor- church’s teachings. largely rell’s father was absent but some- Correll became a ward of the state at physically times aided his wife in punishing age 14 spent teenage years and their children. There was evidence of in- various state institutions described as family. cest in the schools,” “gladiator were character- which seven, When a brick wall inhumane, ized as cruel and even those collapsed Although on his head. he was who worked placed pro- there. He was for unconscious some time after the acci- students, grams low-performing which dent, parents did not seek medical were, “dummy referenced as shacks.” days until' treatment several later when he becoming Within months of ward not back to normal. still Several ex- state, year-old Correll became addicted perts’ type testified this of accident to heroin. symptoms and the Correll exhibited then Correll was to psychiatric committed in- high now indicate likelihood of brain stitutions at during least twice his teen

impairment'. years and was at age described 16 as Against backdrop, began ex- “severely psychologically impaired.” He perimenting alcohol drugs around was treated with a tranquilizer/anti-psy- age marijuana, LSD, using ten. He was institutionalized, drug chotic while and at- amphetamines regularly by age tempted suicide on two occasions. How- twelve, behavior that can be characterized ever, there is no evidence that Correll everyday self-medication trauma continued to receive treatment after these life, of his and the mental health diagnoses stays. he later received when he became a ward of the state. Methamphetamine eventually became choice, which he used

It is that each of notable the six Correll whenever he could. expert Correll offered report they children had or have had testimony during evidentiary hearing problems substance beginning abuse high methamphetamine effect of Further, childhood or adolescence. use, blackouts, including damage, brain least five of the six children spent time in juvenile facilities, methamphetamine-induced correctional psychosis, and all four boys family in the all of spent may compounded by time which be sleep in adult correctional deprivation. facilities.

1015 investigations particular that makes murders, sion was time of At the Strickland, 466 U.S. gram unnecessary.” a of to gram quarter a injecting shot, inject- addition, if and In “[e]ven [a] 2052. one 104 S.Ct. methamphetamine day. According a one of four be considered to shots decision could ing three strate- evidentiary testimony at immune from not render expert to thát does it gy, top 1% of in the hearing, Correll was strategy.” a must be reasonable attack —it quan- in terms users methamphetamine Wood, 1010 F.3d Jones v. in which of time During period tity. Cir.1997) Defense original). (emphasis committed, typi- crimes were investigate potential both failed counsel days seven to ten go was pattern cal sufficiently to make an mitigation days by one to two sleep, followed without and, con- strategic decision when informed in- He was observed sleep. continuous cannot be objectively, strategy sidered shortly before methamphetamine jecting reasonable. considered testi- Expert crimes were committed. likely having that he mony indicated im- judgment problems, control

impulse pres not to decision counáel A time at the aggressiveness pairment, excused evidence' cannot be ent experi- crime, have been may sup is unless it strategic a decision paranoia. drug-induced encing investigations. See reasonable ported by sum, amount a substantial In there was Williams, 120 S.Ct. 529 U.S. available5 mitigating evidence pres right (recognizing a constitutional un- prejudice establish clearly sufficient Silva, jury); to the mitigating evidence ent Wig- standard in Supreme Court’s der (recognizing “the breadth F.3d at 843 534-38, 2527. 123 S.Ct. U.S. at gins, constitutional a defendant’s criminal mitigation a failure to Counsel’s attorney’s failure against his protection constitutionally ineffective constitutes case when de mitigating evidence investigate of counsel. assistance a sen against capital fending his client tence”). Court Wiggins, C owed to deference that the traditional held contends that The State is not of counsel strategic judgments phase evidence put penalty failure to adequate there was not justified where choice, under protected strategic a judg those “supporting investigation Strickland, sure, under To be Strickland. 123 S.Ct. ments.” 539 U.S. strategic to trial counsel’s defer must we discussed, Here, as we have choice tactical “A reasonable decisions. a reason to make failed defense counsel inquiry is immune adequate on an based potential into investigation able Gerlaugh, Strickland.” attack under from Therefore, not to his decision evidence. However, to be consid at 1033. consid be case cannot put on a adequate strategic constitutionally a ered strategic a product of to be the ered made choice, must have been the decision strategy is not uninformed An “reasonable has conducted choice. counsel after is, fact, no strate- It strategy. reasoned deci- or reasonable investigations [made] contextual investigation presentation of argues much of this government 5. The served argument, facts such already before evidence was to miti- than demonize Correll rather report. pre-sentence While in the imposing the appropriateness gate past in- were troubled bare facts of Correll’s court, actions. for his death without further presented to the deed Strickland, 466 U.S. at 690- in gy at all. murder scene the desert must have Cf. (holding “strategic S.Ct. particularly gruesome.” been proba- The complete after less than in- choices made tion officer concluded given the cir- precisely vestigation are reasonable to the crime, “[t]hey cumstances of the obviously professional judg- extent that reasonable planned the murders ahead of time and investiga- the limitations on support ments calculatingly then and unemotionally car- tion”). plans.” ried out pre-sentence their The Silva, report example, history we held that described Correll’s as “a diligent investigation, coun- the absence text psychopathology,” book of and “rid- a reasoned sel cannot make tactical deci- dled with instances of violent behavior and whether or not regarding sion aggression.” probation armed officer 279 F.3d at evidence. 846-47. determined that capable Correll “was not Indeed, that even if a we determined client of functioning society.” report con- types mitigation forecloses evi- certain cluded with the observation that is a “[h]e dence, arguably “it becomes even more threat, menace, my and in opinion, the upon incumbent trial counsel to out seek community at large again should never be and find sources of [mitigating alternative subjected to the risk of recurrence of this evidence].” type of behavior.” These statements are Here, an mitigation abundance of classic hardly mitigation, the words of and no However, evidence existed. counsel failed competent capital defense counsel would avenues, investigate potential these upon have relied report providing as was therefore unable to make an informed evidence, mitigation much less the sole to present decision as to whether the evi- source of evidence. present mitiga- dence. His choice Defense counsel testified at the eviden- evidence, therefore, justified tion cannot be tiary hearing that basically he “was hoping strategic. judge] [the would think it awas one-time incident and want give Mr. Correll a break and find a mitigating factor.” How- any To the extent there was strat ever, pre-sentence report contained ex- egy penalty phase involved presen plicit references to an extensive criminal tation, it cannot be considered a reason history that belied theory. Indeed, any objective able strategy by measure. the page and a half of criminal convictions Defense rely counsel chose to on the reported longer than defense counsel’s pre-sentence report prepared by a state entire mitigation presentation in his sen- officer, probation despite characterizing it tencing It memorandum. was not a rea- During as “one-sided.” his short sentenc- strategy rely sonable pre-sen- on the ing argument, defense counsel criticized report prove tence that the crime was a pre-sentence author of the report for incident,” “one-time when report the entire not talking people to several who could opposite Further, drew the conclusion. provided mitigating have statements. The when examined at evidentiary hearing, course, irony, of is that defense counsel defense counsel was forced to admit that could put during into evidence portraying the crime as a one-time penalty phase very mitigating evidence ripoff gone bad something was not that he felt was important proba- for the constitute a factor. tion officer to hear. The report During evidentiary described the “par- hearing, crimes as ticularly speculated heinous” and that “the counsel revealed a fundamental misconcep- sentencing particular of a Fear referred He evidence. mitigation tion of the fact ignores also judge’s reaction dog “a and hearing as the to cases, Supreme the Arizona capital He much smoke.” and “so pony show” review of independent an conducts Court not have would judge the felt he that said factors mitigating and aggravating the that mitigation to receptive been v. See State John re-weighs them. and kind fuzzy-headed “touchy-feelly [sic] 1050, son, 395, P.2d 1055 Ariz. 710 147 the classic asked about When of stuff.” (“Whenever imposes (1985) the trial court evidence, brain potential as such an must conduct we death sentence the addiction, and drug history of injury,6 a that es the facts of independent review child, that he a testified as abuse suffered mitigating aggravating the tablished favorable as of the evidence think he didn’t for to determine order circumstances However, precisely it is evidence. former outweigh the if the latter ourselves Court Supreme that the type of evidence sentence.”); see also State justify the 539 Wiggins, “powerful.” as has termed Richmond, Ariz. P.2d 114 560 v. 534, 123 2527. S.Ct. U.S. (1976) (“[T]he pen of the death gravity exam painstakingly we alty requires that from examination clear appears It it whether to determine the record ine counsel was that defense testimony of his imposed.”). erroneously been fact, In he sentencing judge. afraid of the also conducts Court Supreme Arizona he because testing psychological forewent v. review. State proportionality it,of learn judge would felt that the Therefore, if even P.2d at 737-38. evi presented might have that he testified judge fears about counsel’s defense addiction history of of Correll’s dence strategic ex is no legitimate, there were He judge.7 a different had he been before in sup on evidence put failing cuse mitigat use judge would that the believed that factors statutory mitigating of port factor, in aggravating evidence as ing could have Supreme Court Arizona mandatory language violation re-weighing independent in its considered 13-703(E). However, this § Ariz.Rev.Stat. factors. aggravating not follow would judge that the presumes short, that to the extent supported is not speculation the law— all, cannot be strategy at it had a counsel by the record. judge trial cannot history noted, for fear ical 6. As the district "strategic.” worried inju- Counsel weight brain significant be termed place Courts any psy- Similarly, presume "[w]e judge evidence. would as trial ries may render repeatedly portrayed held counsel Correll in chological evaluation notice that if he is on ineffective assistance granted a contact visit light he negative if yet mentally impaired, fails may be client results an evaluation and for such order as a investigate client’s mental condition This fear court. never submitted were hearing.” phase in a mitigating factor inap- act judge would presumes that trial Woodford, 280 F.3d Caro considering outside propriately omitted). Cir.2002) (internal quotations sentencing decision making his the record in importance creat- recognize and fails decision not characterizes this 7. The dissent review, judge trial even if a record for strategic as present psychological evidence Psychological unsympathetic. likely would be judge it easier for "make because it would evidence the injury type it to death because to sentence Correll mitigating evi- classic has viewed Court permanently view Correll as cause him to 534, 123 S.Ct. Wiggins, 539 U.S. However, dence. coun- damaged psychologically.” psycholog- investigate Correll's sel’s failure objectively considered an reasonable strat- petitioner the habeas to demonstrate egy. newly presented mitigation evi- dence necessarily overcome the ag- gravating Williams, circumstances. U.S. at 120 S.Ct. 1495. Accordingly,

Counsel’s ineffective assistance sen- even where the facts discovered tencing cannot be excused on habeas strategic. do review not rise to statutory He failed to conduct a the level of sufficient investi- mitigation, we have gation to held that a be make an informed reasonable able probability existed judgment. To the extent that this his information decisions Smith, could considerations, have affected any reflected tactical the sentence. 1270; 140 F.3d at approach see putting Rompilla, of not on a also mitigation S.Ct. at 2469 case (“although suppose cannot be considered an we objectively [the could strategy, sentencer] reasonable even have heard it all when viewed still have decided on highly under the the death penalty, deferential Strickland test”). not standard. Here, discussed, as we have there was a

Ill substantial amount of mitigating evidence It enough is not for Correll that could have been presented, but was performance establish that counsel’s at not. As noted, Court “[h]ad sentencing objective fell below an standard jury been able place petitioner’s at sentencing. reasonableness He must excruciating life history the mitigating also “show that there is a prob reasonable scale, side of the there ais reasonable ability unprofession but for counsel’s probability that juror at least one errors, al the result of the proceeding have struck different Wiggins, balance.” Strickland, would have been different.” at U.S. 123 S.Ct. 2527. The fail- 466 U.S. at 104 S.Ct. 2052. A reason present ure to mitigating evidence was probability able probability is a sufficient particularly damaging under Arizona law to “undermine confidence in the outcome.” time, at existed virtually which guaranteed imposition of the death penalty based on prior qualifying In considering question, we have conviction. recognized performance that deficient prejudice questions may be closely related. dissent argues that Correll was not Summerlin, (“[W]e See 427 F.3d at 643 prejudiced by the investigate failure to conclude that the failure of trial counsel to present mitigation and argument, evidence investigate, develop, present mitigat- presentation because the of such evidence penalty phase evidence hearing and argument “would have enabled the has undermined our confidence the sen- prosecution present very damaging re- tence of imposed by death the trial buttal However, evidence.” significant judge.”); (“Be- Smith, 189 portion of that damaging rebuttal evidence cause of provide failure to [counsel’s] com- was already available through pre-sen- petent representation, our confidence report. tence These facts provide could the outcome of Smith’s the basis for either the dehumanization of undermined.”). been In establishing prej- Correll, mitigation or provided the proper Strickland, udice under it is not necessary context.8 8. That some of the defense witnesses sen- that counsel had sentencing any abandoned at tencing might presented inculpatory tes- of actual claims innocence or misidentifica- timony is not particularly significant, given tion. analysis independent its substitutes constitutionally entitled court, and the district defense. record mitigation aof presentation the evidence view of one, its own although substan- relies on receive He did must, the im- considering, Most as we existed. than rather tial required law had on would have Arizona because portantly, effect ag- if twenty-two sentence a death sentencing judge imposition miti- no proven and were factors not believe gravating I do ago. Because years failure presented, factors “affirmatively gating his burden has met constituted any mitigation affirm the I prejudice,” would prove [to] of counsel under assistance ineffective denying of the district judgment in Strickland. set forth standards corpus. See writ of habeas petition cannot be considered judge trial fear of a Washington, 466 U.S. Strickland the forgoing for justification strategic (1984). L.Ed.2d 104 S.Ct. defense, par- aof presentation (1) law re- Arizona ticularly given I penalty the death of imposition quired are crimes facts of Correll’s brutal The found, were factors mitigating when no illus- to must be recounted disturbing,- but (1) Court the and new that Correll’s the unlikelihood trate and aggravating the re-weigh to required the sen- have convinced factors. the impose to death judge not tencing to is entitled that Correll conclude We penalty.1 phase of a new the form relief judgment the reverse A trial. We with instructions and remand district court 11, 1984, Guy April of night On the corpus. habeas writ of to issue a Rosen Debra girlfriend his Snelling and REVERSED. a sleep, knock ready go getting were Snelling answered the door. came O’SCANNLAIN, Judge, Circuit Nabors, his co-work- John and found door dissenting. not met. Correll, had er, whom he and court’s from the respectfully I dissent men into the two Snelling let After “highly met the Correll conclusion and demanded home, gun a pulled Nabors of establish- burden demanding heavy and Ro- Snelling and secured money. Correll pursuit of in the prejudice” ing actual Cady Robin When tape. with duct sen of counsel assistance ineffective claim of of D’Brito, friends Snell- two Shawn and Al- of trial. penalty phase during the house, Cor- arrived at unwittingly ing, 979, 1000 Woodford, 395 len v. tape as well. them with duct secured rell (internal omit- Cir.2005) marks quotation Snelling Nabors escorted and Then mountain ted). majority ignores The money home search throughout his in as- provides which precedent of valuables. and must consider sessing prejudice, we approximate- raiding the house After likely benefits only the minutes, exited and Correll Nabors ly 45 also but present, counsel failed Snelling, D’Brito, whom Cady, majority also with The drawbacks. likely its pres- majority’s sharp divergence between necessary to normally not Although it is the district court’s history in a of the facts procedural entation the facts and restate findings. will understand dissenting opinion, reader factual necessary due exercise is this Cady’s rell, they forced into car. Nabors brief- committed crimes Correll’s ly went back inside to Unpersuaded by defense, secure Rosen. stead. a jury holding gun While on the convicted three vic- three counts tims, murder, degree first Correll drove to a deserted one count of attempt- area murder, degree ed first one count parked. where Nabors’s truck was Na- robbery, armed one count of first degree bors took his truck and followed burglary, and four counts kidnaping. driving Cady’s who was still car with the victims, three to a desert area north of At sentencing, government urged There, they Phoenix. forced the three impose the court penalty. the death victims out of the car made them lie government asserted that five statuto- ground. face down on the Correll shot ry (1) aggravating present: factors were a Snelling in the back of the head. (2) Nabors previous felony conviction;2 violent D’Brito, then shot and killed and then grave risk of death to others addition to gun tried to shoot Cady. (3) misfired persons murdered;3 commission of couple of times and “hurry Correll said up, the murders in anticipation of pecuniary (4) hurry cool, ... up, okay, gain;4 it’s no cars com- commission the murders in ing, get heinous, an especially shell chambered.” After reload- cruel or depraved manner;5 (5) gun, finally Nabors was for multiple successful convictions in shooting killing Cady. during and murders After offense.6 the left, and Snelling, Nabors who miraculous- In response, attorney Correll’s argued ly die, reported did not the Rosen, crime. prosecution that the had prove, failed to as whom Nabors and Correll had left in the required by Florida, Enmund v. 458 U.S. they house when drove the other three 102 S.Ct. 73 L.Ed.2d 1140 desert, victims into the was later found in (1982), that Rosen, Correll intended to kill house, by the strangulation. killed Cady, and D’Brito. Although the sentenc- ing court accept did not argument, this B attorney Correll’s preserved it appeal trial, At Correll’s sole defense was mis- and the Arizona Supreme Court later mod- namely, that Snelling, who ified one of identification — Correll’s death sentences to was under the drugs influence and alco- imprisonment life on ground. this See occurred, hol when the crimes had wrongly Correll, State v. 148 Ariz. 715 P.2d identified Correll as one assailants, of his (1986). 730-31 attorney Correll’s also and reasonably that it likely was that Cor- countered government’s each of the prof- rell’s Terry, brother who resembled Cor- fered aggravating factors.7 He argued— 13-703(F)(2). 2. § Ariz.Rev.Stat. ty’s performance assessment of counsel’s with respect "grave to the risk of death to others” 13-703(F)(3). 3. § Ariz.Rev.Stat. "multiple and the aggravating murders” fac- tors, agreeing with counsel's assertion that 13-703(F)(5). § 4. Ariz.Rev.Stat. the first unsupported factor was and the sec- ond was unconstitutional in this case. The 703(F)(6). § 5. Ariz.Rev.Stat. Supreme Arizona persuasive Court also found 13— argument defense counsel’s govern- that the 703(F)(8). § 6. Ariz.Rev.Stat. ment prove beyond failed to 13— reasonable doubt that Correll intended to kill one victim majority 7. The unduly discounts defense and therefore the death could not be government's counsel’s attack of imposed Furthermore, the asserted on that count. coun- aggravating Maj. Op. factors. See compelling 1013— sel made legal substantive and Supreme Both the Arizona arguments Court respect and factual with to the other disagreed the state majori- trial court with the aggravating factors. could Accordingly, Snelling. he Guy than agreed sentencing court —that deaths.9 the three planned not have aggravating to others” of death risk “grave argued that also He in both apply. attorney argued not also did factor Correll’s oral factor and his aggravating sentencing memorandum murder multiple influ- under the Although the was that argument considered. be could not at the time of alcohol drugs argu- this ence accept not court did drew specifically He the murders.10 it for attorney pre-served ment, Correll’s Snelling’s attention sentencing judge’s Court appeal and he smelled that police to the statement factor. aggravating later invalidated during the on Correll’s breath alcohol attorney un- Correll’s id. 734-35. See argued attorney further Correll’s crimes. did argued successfully [Correll] that Mike “the reason fac- remaining aggravating support not he was fact that when problems had tors. aban- old, parents of his both years govern- challenging In addition when expected can him and be what doned factors, attor- aggravating ment’s parents their is abandoned someone evidence.8 pointed to ney also attorney early age?” Correll’s such that Correll emphasized he particular, age that Correll’s argued also —24—was the three man trigger mitigating.11 Nabors “John died who people that Correll knew Although counsel “Mr. Na- noted that He was the leader.” counseling, counsel psychological received Snelling Guy that knew the one bors develop psychological declined Snelling would dealer, Guy awas believed, conver- based he because robbery drugs [when] money only possible that the sations that John Na- So, it’s obvious occurred. disor- personality was antisocial diagnosis drew robbery.” He plan did bors at the eviden- explained counsel der. As statement Snelling’s diagno- court’s attention that this hearing, he believed tiary him that Nabors John weight “it appeared mitigating that carry little sis would would, the calling leader, the one was sentencing judge the was with noted sen- judge He further for shots, speak.” fact, make it easier so it would could death because robbery, Correll to the tence prior permanently any- him to view Correll that cause reasonably anticipated not have damaged psychologically.12 home other in the be one would Ariz.Rev.Stat. record, See tory mitigating factor. Quoting trial court the state 8. 13-703(G)(1). § waive[d] majority that "Defendant asserts Maj. mitigating evidence.” presentation statutory age ais defendant’s 11. A 1013; ex- at 1013. This id. Op. see also 13-703(G)(5). § Ariz.Rev.Stat. See factor. however, only the conclusion was cerpt, Indeed, counsel ada- clerk. the court on the explained, based court district 12. The waive” the didn’t mantly "[w]e that stated hearing: at the presented evidence mitigating evidence. presentation personality argue Petitioner’s than Rather Howe, decided Judge [counsel] reasonably inability to foresee disorder 9. A defendant’s to avoid chance a better had Petitioner death to another that cause that his conduct Peti- portrayed penalty if he See death mitigating factor. statutory person is a drug ripoff which in a 703(G)(4). was tioner involved § Ariz.Rev.Stat. 13— wrong, that Petitioner terribly gone had matter, that in the only a follower been appreciate the inability to A defendant's trigger-man as to not been he had his to conform or wrongfulness of his conduct died, Snelling Guy people who three a statu- of law is requirements to the conduct C Correll later petition filed federal for writ of corpus habeas and the district sentencing judge ultimately found court summary entered judgment against statutory aggravating four circumstances.13 (“Correll ”), him. appeal On I we held that Determining that the Correll’s ineffective assistance allegations, factors, outweigh judge did not these which fully had not been explored in state to death sentenced Correll on each of the court, him evidentiary entitled hearing. murder counts.14 The Arizona Supreme (1) We held that Correll had established convictions, Court affirmed Correll’s with that the state court trier of fact had not previously the modifications mentioned. conducted a full and fair hearing to find It re-weighed then the aggravating and (2) facts, the relevant allega his mitigating factors and determined that the tions, if proven, might constitute a color- Correll, appropriate. death able ineffective assistance claim. Correll 715 P.2d at 736. Stewart, 137 F.3d 1411-12 In his petition postconviction state Cir.1998). relief, alleged that his counsel rendered assistance at ineffective sentenc- D ing. during He contended that the month Pursuant elapsed jury to our remand, between verdict instructions on sentencing hearing, district court attorney conducted a nine-day met evi- just dentiary him hearing five minutes. on Correll’s He also ineffective attorney contended assistance of failed to in- counsel claim. who vestigate appearance, and to waived his develop available evi- called wit- fourteen relating psychiatric government dence to his nesses. The called history three wit- and condition at nesses. The the time of the court crimes. district studied reams documents, trial court summarily state including dismissed Correll’s attor- notes, petition, ney’s stating that nearly which were quarter- century old, and Correll’s childhood medi-

[n]o colorable relating issues to ineffec- records, cal which were two decades tive assistance of older. counsel are raised. respect, the Court specifically re- Based on the presented at the calls that the trial work of defense coun- hearing, rejected district Cor- careful, sel precise, and competent, allegation rell’s that his attorney and strategic manifested and tactical spent five minutes with him between con- judgments of high the same quality. viction and sentence. The district court The Arizona Supreme Court denied review found instead that “[pjrior to sentencing, without comment. had multiple [counsel] face-to-face meet- reported had police Summerlin, Petitioner was review. See v. Schriro 542 U.S. drugs under the influence of 348, 358, alcohol 2519, and/or 124 S.Ct. 159 L.Ed.2d 442 crimes, at the time of the and that he (2004). sympathy should be shown because his

family age abandoned him at the of 14. majority 14. The erroneously states that "Ari- required imposition zona law 13. of the death Court has since held that penalty practice mitigating when no judges finding Arizona's aggrava- factors were ting But, Maj. Op. factors found.” the Sixth 1019. violates Amendment at as the ma- Arizona, right jury. Ring jority to a recognizes See v. itself preceding 536 U.S. in the sen- 584, 2428, tence, (2002). 122 S.Ct. 153 L.Ed.2d 556 required Arizona law imposi- however, Ring apply, does not cases such tion of the aggravating death if factors as this one that already were final on direct proven were and no factors suffi-

1023 Furthermore, court found the district Petitioner” with calls phone ings claims now evidence Correll the much of Petitioner the. “diseuss[ed] he which the sen- specific put have before case and the should counsel mitigation over-all counterpro- to the have been tencing judge would he reasons than the rather because, life sentence of the dis- of a in the words favor ductive court found district penalty.” court, “opened death the door it would have trict 50 to between spoke that counsel forward with to come prosecution family witnesses, including all of Correll’s information rebuttal strong damaging The dis- cooperate. members who effect.” counter its that, unfortunate- further found trict court II pro- able to not were witnesses ly, “[t]he information. useful vide relevant clear, made Supreme Court As the instances, witnesses fact, many In from coun- prejudice not presume we do non-mitigat- inculpatory only provided Strickland, assistance. sel’s ineffective information.” we 2052. Once 104 S.Ct. 466 U.S. in a de- the evidence outlining all After performance that “counsel’s determine the district disposition, 109-page highly tailed deficient, still bears [Correll] per- constitutionally deficient court found of establish- heavy burden demanding and (1) grounds: narrow on two formance Allen, F.3d at prejudice.” ing actual treat- medical obtain failure counsel’s omitted) (internal marks quotation injury of a arising out head ment records added). burden “affirma- (emphasis This was seven when Correll occurred requires show- prejudice” tively prove [to] (2) to thor- failure counsel’s years old just possibility ing more than rec- mental health oughly review out- prejudiced the performance counsel’s that a reason- court determined ords. The Strickland, 466 U.S. come. investigated attorney would able “a demonstrate must 2052. Correll S.Ct. mitigating evi- possible these matters for coun- but probability” reasonable im- own relying on his than rather dence performance, constitutionally deficient sel’s with the interaction on his based pression, a lesser sentence. received he would have intel- no defendant, that the defendant assessing S.Ct. could deficits that psychological or lectual course, “we are not asked prejudice, mitigating evidence. serve certain testimo- the effect imagine what errors, the dis- Notwithstanding these personally.” us upon have been ny would prej- that Correll found trict court Stewart, 140 F.3d Smith After ineffectiveness. by counsel’s udiced Cir.1998). determine must instead We all developed counsel postconviction new evidence of Correll’s the effect what injury relating to Correll’s head sen- upon been might have it was clear history, health and mental sen- of Correll’s at the time tencing judge mitigation” lack of “a substantial there was ago.15 years hearing twenty-two tencing in the words because available Id. functioning court, highly a“is the district reaching its conclusion majority, The from brain never suffered has adult” who heavy burden his has met that Correll disorder. major damage psychological or (“AEDPA”), No. Pub.L. Penalty of 1996 Act leniency were ciently call substantial to gov- 1214, 104-132, pre-AEDPA law Stat. 110 found. Murphy, 521 U.S. v. Lindh erns our review. writ of petition for a 15. Because 2059, 327, 481 320, L.Ed.2d 138 117 S.Ct. effective before the corpus was filed habeas (1997). Death and Effective date of the Antiterrorism 1024 prejudice, ignores demonstrate the moun edge” double present in other cases. precedent

tain provides which that we 535, 123 S.Ct. 2527. It also noted that must consider not benefits there was no evidence “suggest[ing] that a ostensibly mitigating evidence counsel case, in its own right, would present, failed to but also its drawbacks. have been counterproductive.” 525, Id. at The Supreme Court long instructed 123 S.Ct. 2527. The majority by errs ig- that we must consider whether the new noring the fact Wiggins, unlike much evidence, presented, if of new mitigating evidence Correll argues have been counterproductive. In Darden attorney his should presented have v. Wainwright, 168, 186, 477 U.S. 106 S.Ct. have enabled prosecution present 2464, (1986), 91 L.Ed.2d 144 Supreme very damaging rebuttal evidence. Court held that trial counsel’s failure to present any mitigating evidence did not majority compounds this error by performance constitute deficient because substituting its own independent review the presentation of such evidence would the record for that of the district court. open the door to damaging rebuttal evi Our review of the district court’s factual dence. Similarly, in Burger v. Kemp, 483 findings supposed “significantly be 776, 3114, U.S. 107 S.Ct. 97 L.Ed.2d 638 deferential, in that we accept must (1987), Court held that psy district court’s factual findings absent a chological records “by were no means uni definite and firm conviction that a mistake formly helpful petitioner they because has been committed.” v. Woodford, Silva suggest violent tendencies that are at odds 825, (9th 279 Cir.2002) (internal F.3d 835 with the defense’s strategy of portraying quotation omitted). marks As long as the petitioner’s actions on night “ district court’s account of the evidence ‘is murder as the result of person’s] [another plausible in light of the record viewed in strong upon influence 793, his will.” Id. at its entirety, the court 107 of appeals may S.Ct. 3114. not reverse it even though convinced that had cases, Based on these we have held that it been sitting as fact, the trier of it would an attorney who failed psycho ” have weighed the evidence differently.’ logical testimony relating to the defen Phoenix Engineering and Supply Inc. v. dant’s antisocial personality disorder was Co., Inc., Universal Elec. 1137, not 104 F.3d ineffective because such testimony (9th Cir.1997) 1141 “would have (quoting allowed Anderson v. prosecution dur Bessemer City, 564, cross-examination 470 573-74, U.S. rebuttal to re 105 hash 1504, the horrific details of S.Ct. (1985)). [the] L.Ed.2d crimes.” Unfor- Calderon, Bonin v. 815, tunately, majority repeatedly flouts Cir.1995). Supreme Court, in Wig standard below, review. As set out gins Smith, 510, 123 539 U.S. S.Ct. these errors lead the majority to eviscer- (2003), L.Ed.2d 471 repeatedly empha ate prejudice standard set out in Wig- sized that this line of cases remains gins, 539 U.S. 123 S.Ct. effect. In finding that Wiggins had met L.Ed.2d 471. prove burden to prejudice, the Su Taking the they facts as are, preme actually not Court noted “Wiggins d[id] as the majority be, have a wishes them to it is record violent conduct could apparent been introduced carry failed to State to off set” the mitigating burden to Id. at demonstrate “a evidence. prob- reasonable 123 S.Ct. 2527. The explained ability” that, Court that but for counsel’s constitution- ‘Wiggins’s history contained little of ally the deficient performance, he would have major disorder], a Strickland, stress traumatic [post sentence. a lesser received disorder, bipolar a disorder.” or depressive 695, 104S.Ct. 466 U.S. find- this factual reached court district The A testi- experts psychological two after ing has the no evidence Correll obtain was there that failure fied First, counsel’s child- The Correll’s disorders. relating to from these suffered records ever medical impact no virtually that Correll injury speculated head who hood witness sole did records these sentencing because traumatic post from on have suffered might dam- brain any fact, not, demonstrate in a such acknowledged that stress disorder from testimony received Based age. The possibility.” a “only was diagnosis court district the neuropsychologists, self-reporting Correll’s found court district any not suffer “did Correll that found depression severe bipolar disorder fell wall that the block injury from brain mo- obvious of Correll’s light incredible The old.” years he was when on him fact light and in tive to fabricate neuropsycholo- a credited court district in his appear not do diagnoses these that capital of all “that testimony gist’s he that was indicated and Correll records one tested, is Petitioner has he defendants treat them. medication given never and determined functioning” highest that found also court The district functioning adult.” highly “a is Correll that conten- support Cornell's did not evidence from incident records medical medi- anti-psychotic given was he tion that assessment. court’s the district support reaching this custody. cations while was injury, childhood After court noted the district finding, factual hematoma, subgaleal a diagnosed for both experts health mental blood collection a or is bruise which rec- medical Correll’s scrutinized parties skull. above scalp, but under Department the California ords from days, at which five cleared hematoma (“CDC”) the ab- reported Corrections seven-year-old described a doctor time anti-psychotic any See Smith indication sence well. as alert Although prescribed. n. was ever Stewart, medication [aof Mellaril given absence Cir.1999) “the (noting that that Correll appears it may evidence juvenile, of] time as presentation period mitigat- substantial no Dr. expert, when be irrelevant health mental government’s available”). accordingly I is opposi- evidence Scialli, M.D., without testified John conclu- majority’s agree with the cannot milligrams— dosage tion that —25 his burden carried has that Correll sion tranquilizer mild as a served have would he possibility a reasonable establish dosage that than the far lower if sentence a lesser received have psychosis to counteract utilized would be head childhood relating to his records milligrams). (approximately before had been injury attorney thor- Correll’s Accordingly, had judge. health mental Correll’s reviewed oughly credible only had have records, he would B already sus- he diagnosis for the evi- psychiatric Second, new ac- disorder personality antisocial pected: significantly have also dence As we depression. by mild companied found The district ease. helped per- noted, an antisocial previously sup- insufficient “there “poten- may be diagnosis sonality disorder from suffered ever Petitioner port than petitioner to [a] harmful tially more PTSD illness, whether major any mental 1026

[helpful].” Stewart, Gerlaugh v. 129 F.3d mitigating impact these records carried. (9th 1027, Cir.1997). 1035 We have The district court found had Correll’s “agree[d] with the Arizona Supreme Court attorney presented mental evidence, health that this evidence has obvious countervail “highly prosecutor skilled” would have ing dangers,” tactical “[i]n because its best presented the following evidence that was possible it light, is a basket of cobras.” Id. not already before the sentencing judge: “Accordingly, case,] prior [in a we c[ould] (i) rape Petitioner’s of a psychot- female identify prejudice no flowing from coun patient ic while he was undergoing men- sel’s develop” failure to psychiatric testi tal health treatment for his antisocial mony relating ato defendant’s antisocial personality disorder and depres- mild personality Id.; disorder. see also Dar (ii) sion; Petitioner’s numerous escapes den, 186-87, 477 U.S. at 106 S.Ct. 2464 from mental health treatment facilities (counsel’s not present decision character rejections of institutional efforts to or mental-state evidence in mitigation was provide him with mental health treat- sound trial strategy because the mitigating ment; (iii) Petitioner’s hostage taking evidence would opened have the door to aggression armed against mental damaging evidence, rebuttal which includ health workers psychiatric escape ed a attempt opinion that the defendant from a had a sociopathic mental health personality); facility; treatment Clabourne (iv) Lewis, v. (9th 64 Cir.1995) F.3d the underlying factual basis of Peti- (noting that mental health prior tioner’s records omitted convictions for armed rob- from the sentencing hearing “hardly (viii) bery; ... the conclusion aof social turned out to helpful” be because they evaluation at age 18 that Petitioner was indicated that the defendant had “an anti not a candidate for probation and was a social personality”); Daniels v. Woodford, danger (ix) to the community; additional 1181, 1204, (9th 428 F.3d Cir.2005) showing information of Peti- efforts (indicating that testimony suggesting that parents tioner’s to deal with capital a is a defendant “sociopath” ag problem abuse and obtain psychological gravating rather than mitigating); v. Caro treatment for him following his armed Woodford, (9th 280 F.3d Cir. threat against (x) school; teacher at 2002) (concluding that a psychologist’s tes that Petitioner had no desire to work timony did help the defendant’s mitiga but wished enjoy himself; tion case it because “to paint tended him (xi) Petitioner’s statement that when he as a violent psychopath”); Beardslee committed the 1978 armed robberies Woodford, Cir.2004) gave that it him a strong power sense of (acknowledging that an personal antisocial and excitement. ity diagnosis can be damaging to capital The district court “credit[ed counsel’s] tes- defendant); Calderon, Williams v. 52 F.3d timony that prosecutor, Sidney Davis, (9th Cir.1995) (“We have no a reputation for excellent preparation doubt that ... statements [suggesting that and that she would have left defendant is no sociopathic] stone did nothing to unturned in cause.”). her opportunity advance Williams’s any rebut presented.” Furthermore, had Correll’s attorney presented Additionally, presentation Correll’s mental health of Correll’s records at sentencing, antisocial personality he opened disorder at sentenc- door prosecution for the ex- have severely undermined coun- tremely damaging rebuttal evidence that sel’s strategy of arguing that Correll mere- would have likely eviscerated the ly minimal followed Nabors’s lead during the

1027 convincing the chances Correll’s pled diagno- personality antisocial crimes. merely fol- he was judge that sentencing certainly prompted almost have sis would crimes.16 during the lead lowing Nabors’s out that point to government the majority’s the contrary to Accordingly, of an armed instigator 18, the was at age a reason- prove conclusion, cannot assistance the he enlisted in which robbery have re- would that he 15-year old probability able brother 13-year-old of his available if the Bonin, at sentence F.3d 836 a 59 lesser ceived See girlfriend. the been before expert had present to evidence psychological the failure that (finding prejudicial judge. not was testimony psychological jurors distracted have it “would because theory mitigation] main [counsel’s

from C evidence, reduced and [other] use, the district to Correll’s As jury, credibility with defendant’s] [the no there was evidence— that found court cross- powerful to the door opened self-serving state- than other Correll’s rebuttal”); Burger, 483 examination im- significantly was ments' —that (holding that 793, 3114 S.Ct. at 107 U.S. of the crimes. the time at paired assis- ineffective prove to failed petitioner that defen- “[a] provided the time law at detailing the the affidavits tance where at or alcoholism intoxication dant’s attorney history his behavioral defendant’s circum- is a of the offense time no means uni- “are to failed signifi- it that shows stance evidence they because if petitioner to formly helpful capacity to the defendant’s impaired cantly are at odds tendencies violent suggest of his conduct wrongfulness appreciate portraying strategy the defense’s with require- to the his conduct conform or to of the night actions petitioner’s 135 Zaragoza, law.” State of the ments person’s] of[another result as the murder (1983) (emphasis P.2d Ariz. will”). upon his influence strong that Cor- added). found The district evidence, if sum, psychological In indicat- during the murders behavior rell’s demonstrated would have presented, intoxicated: not he was ed personality antisocial that Correll calm remained who was Petitioner [I]t of an anti- Evidence depression. mild was as Nabors misfired gun when tremen- have would personality social It was Peti- Cady. Robin to kill trying than harmful more to be potential dous Nabors re- encouraged who tioner addition, would evidence this helpful. coming, no cars there were calm as main prosecution for the the door opened have and shoot a shell chambered get extremely laundry list introduce of the at time Cady. Such behavior already before information damaging intoxication not demonstrate crime does crip- sentencing judge and damning re- preclude derstandably wanted significant "a majority concludes 16. enlisted revealing that Correll evidence rebuttal buttal damaging portion of pre-sen- and his 15- through the brother younger already 13-year-old available But, as Op. Maj. robbery at 1018. three report." girlfriend in tence year-old dissent, defense length Further- gunpoint. discussed stores convenience po- of some the introduction counsel realized regard- more, silent report is pre-sentence open the tentially damaging information extremely ing other example, For parade of to a horribles. door surely would have prosecutor summarily dis- report pre-sentence while potential- rebutting certain brought light counts of three conviction closes mitigating evidence. ly counsel un- robbery in armed and, fact, undercuts an assertion Day’s consider testimony, however, be- intoxication. cause Correll failed Day establish that Woodford, See Williams v. available to testify his sentencing (9th Cir.2004) hearing. (reasoning Douglas, See there is 316 F.3d at n. little believing basis for that drugs (explaining that materi- testimony presented at a ally affected the defendant’s district behavior at court evidentiary hearing that was the time of the crimes when the facts of not available counsel at the sentencing the crimes reflect deliberate and methodi- hearing may not be considered for preju- action). cal purposes). dice Furthermore, even had No Correll witnesses could have established that testified Day that would been available, Correll was intoxicated during Day’s the crimes testimony that Correll only witness, one sister, methamphetamine Correll’s used more than year could have that testified Correll used before the crime would have provided little methamphetamine in the morning of the support argument for an at day prior to the crime. Correll was not the time crime, of the was impaired so prejudiced by his sister’s failure to testify, he was unable “to appreciate the wrongful- however, because testimony, her on cross- ness his conduct or to conform his con- examination, would have eviscerated any duct to the requirements of the law.” remaining residual doubt in the sentencing Zaragoza, 659 P.2d at 30. judge’s mind as to guilt. Correll’s As the Finally, the district court reasonably de- found, district court her “testimony would clined to credit Correll’s two drug abuse totally any eliminated experts’ opinions on the effects severe weight from Petitioner’s claim of innocence methamphetamine addiction because these and residual (i.e., doubt guilt phase opinions were not on based an examination defense).” misidentification She knew of Correll but instead were based aon Correll with was Nabors when the crimes hypothetical set of provided facts by Cor- occurred and that they sought a ride rell’s postconviction counsel. As the dis- out of the very state soon after the mur- trict court explained: Allen, ders occurred. See F.3d Dr. Sullivan did not examine Petitioner (explaining that “mitigation witnesses nor did he look proffered at Petitioner’s [the defendant] would not Department of have proved Corrections or helpful given CDOC their own in- Rather, records. volvement Dr. in [the Sullivan was asked criminal en- defendant’s terprise.”); assume [a Williams set v. Woodford, hypothetical of] (9th Cir.2004) (“[T]he do facts[that] not accurately or reliably best thing a capital portray defendant can do to im- Petitioner’s alleged drug prove his chances of abuse.... receiving a opinion [H]is life sen- was based tence has nothing to do with unsubstantiated and unreliable assump- strictly speaking. The tions. best thing do, he can all else being equal, is to raise In stark contract hypothetical as- doubt guilt.”). about his sumptions on which Dr. opinion Sullivan’s based, other witness was Correll’s post- district court found that conviction counsel presented relating incarcerated, except for 229 drug use was Dawn Day, days, who testified during year nine period between she used methamphetamine with (when Correll October 1975 Correll was first in- during a four period month from carcerated, 14) Novem- age (the and March 1984 ber 1982 until February 1983. We cannot crime) month before the and that “Peti- abuse. of substance history including his addict methamphetamine anot tioner de- history of methamphet- [Petitioner’s] Because abuser long-term or a accept error major clinical ceit, was incarcerat- it is a he time during the amine explained: of his self-serving further view district [Petitioner’s] ed.” Petitioner’s offense credit the time does condition The Court he self-report unsubstantiated accurate.” day every be methamphetamine abused expert wit- Furthermore, other Peti committed. were crimes fore Shaw, addiction, whom Dr. ness on eviden- at the testify not to chose tioner proposition quotes majority not to chose Petitioner hearing; tiary experiencing been “may have government’s [the cooperate fully of the time at the paranoia” drug-induced of Mm expert’s] examination abuse drug “thorough- was murders, Op. at Maj. Be drug of abuse. issue the regarding fabricate, evidentiary hearing. at the to ly impeached” motive the obvious cause “Dr. Shaw self-serving explained, statements court district As the Petitioner’s to the crimes usage prior minimally consid- drug his about he that admitted is [sic] drano, most use night [(Ariz.1996) drug’s skepticism. of the [185 unreliable effect cocaine Ariz. information (“the defendant on him. murder, as well See, 192] and e.g., [State 914 P.2d subject to search past Because concerning his and ^[225] provided v.] as the on the of the Me his conclusion.” Dr. Shaw’s ered and thetical Sullivan’s crimes wholly speculative” that was drug facts of opinion, opinion usage not established.” the was “entirely crime at the district “based because before time not credible court found upon it, reaching like of the hypo- Dr. I fabricate, agree self- foregoing, such on to Based motive obvious skepti facts of subject that, testimony is under serving district insufficient evidence may be deemed and case, cism failure counsel’s nard establish plying based Strickland, should [1263,] The Court’s Petitioner’s standards by entiously, and social Matthews, ized nal and es deceptiveness deceitful Respondent’s of [Petitioner’s] decision by (“The assessment personality Smith proceed malingering impartial other mitigation.”) about who maker is searching self ^[1998] [v. abound impartially opined records. on the govern U.S. report drug law); disorder Stewart great sentencing (evaluating lifelong pattern reasonably, consci throughout skepticism ]; abuse assumption is corroborated deceit; instanc see 695, 104 S.Ct. many follows: see He ], 140 F.3d applying is expert, decision.”). generally, also character judge prejudice has been matters, toward “Anti Ber ap Dr. pe regarding using alcohol counsel’s witness statement captor’s agree expert lay tion I also undisputed solely on Petitioner’s spent very impeached witness intoxicated if Correll’s been with the almost have been credit basis breath-—was likely that statement testify, “if that cross-examined could 9 of by virtue he smelled at the district expert “it attorney had severely undermined district the last testify is drug that drugs expert’s highly that Petitioner self-reporting time not had testified court’s of the use—other expert’s court’s prejudicial. alcohol likely any opinion the crimes.” years fact that sentencing conclusion Petitioner called Snelling’s had been observa- opinion on his based incar- ... could than had lay an by no it I cerated with little or no drugs.”17 access to The remaining family history evidence I accordingly agree cannot with majority’s the majority cites comes from Reverend conclusion that Correll Curry, met whom his burden the district court “was found prove presented counsel an available witness” for more counsel at the time of detailed use, evidence about hearing. he The dis- trict court found “that if have received a [Reverend Curry] lesser sentence.

had been contacted prior [counsel] sentencing, he would have him informed D that he would not discuss information Finally, presented Correll has no credi- about Petitioner or appear at sentencing ble evidence about his childhood that his because it against California law attorney have placed could before the sen- him to discuss former residents tencing judge other than the evidence the CYA.”18 Accordingly, Curry’s Reverend sentencing judge already had before him. testimony cannot factor into the prejudice court, The district who is in the posi- best analysis. See Douglas, 316 F.3d at 1086 tion to determine credibility, found Cor- (explaining that testimony presented at a rell’s allegation uncorroborated that his district court evidentiary hearing that was banged mother his head against a kitchen not available to counsel at the sentencing table regard incredible. to the head hearing may not be considered for preju- injury Correll age suffered at seven when dice purposes). a cinder block him, wall fell on the district The district court further found that had expressly found that par- Correll’s counsel emphasized Cornell's parents’ use ents were negligent in securing medi- of corporal punishment, prosecution cal care. Based on the medical records would have countered with evidence that presented at the evidentiary hearing, the parents Correll’s him took private a district court found that parents psychologist and participated in a six-

took him to family doctor day the month treatment program with him after accident occurred and reasonably “acted in he expelled from eighth grade for caring Petitioner, which included two threatening a teacher with a knife. The visits to their family doctor, one emergen- prosecution likely also would present- cy room visit a follow-up visit for ed evidence that Correll had repeatedly additional specialized testing.” molested his sister. Accordingly, on bal- 17. I would further note drug 18. While majority quotes Reverend Cur likely would have ry's evoked sympathy less testimony from that he "would have unhesitat ingly an Arizona sentencing help” come judge years ago Maj. Op. see 1011-1012 than it n. does I today. from credit the the court May district See court's finding that at the Woodford, time of 270 F.3d field hearing he was unavailable Cir.2001) help. Rever (crediting testimony that there were Curry end testified that he "cannot offer testi "no death cases tried in San Bernar- mony or assertions regarding people who County dino prior to 1983 where a de have been in California Youth Authority [be fense had been gaining successful in either an cause] [i]t is by forbidden law.” Reverend acquittal reducing inor the sentence from Curry me,” testified that others "may contact death to parole.”). life without The sentenc but he “could not make contact with” counsel ing judge likely would have taken note of the and when he "talked supervisors with [his] fact that Correll sought never treatment for it, about they ... Furthermore, said no.” problem substance abuse and repeatedly defense counsel testified that when he con secured his removal from the mental health wife, tacted Curry's Reverend she informed programs placed in which he was by either him that the really Reverend "didn't want to escaping or violently assaulting the staff. be involved.” holding By barely been altered.” “has history evi- family anee, presentation in this case is counterproductive. have been dence un- prejudice conclu- majority’s to establish clearly sufficient agree with I cannot essentially his burden majority met Correll has Wiggins, sion der more presented had counsel out of prove requirement prejudice writes the childhood, he evidence about detailed jurisprudence. circuit our a lesser sentence. have received dissent. respectfully I Ill in analysis majority’s

The sum require- simply eviscerates case prove preju- petitioner that a habeas

ment a claim prevail order dice PARTNER LIMITED IV DBSI/TRI satis- counsel. Not assistance ineffective partnership; SHIP, limited an Idaho facts, reconstructing the merely fied with Coquille, Or Hills Investors Forest Court Supreme majority also reinvents partner Ltd., Oregon egon an limited ev- authority, asserting Ltd., Investments, an Ore ship; Jadin clearly sufficient case “is in this idence partnership; Norseman gon limited under prejudice establish partner Oregon Village, limited Wiggins, U.S. standard Court’s Development, an ship; Ore Parkside Maj. Op. 534-38, 2527.” S.Ct. Plaintiffs, gon partnership, limited course, ab- statement, patently This facts surd, cursory review the as even fell drasti- that Correll reveals Wiggins Gerhard; Goldammer; Sherry Donald demanding bur- carrying the cally short of Thomas; Veillon; Carmen Ron the Su- prejudice proving actual den Rhodes, Appellants, Diana in that case. sufficient preme Court found v. “experienced petitioner Wiggins, In America, STATES of UNITED in six the first and abuse privation severe Defendant-Appellee. custody in of his life while years mother,” alcoholic, suffered absentee Gerhard; Goldammer; Sherry Donald molestation, torment, and sexual “physical Thomas; Di Veillon; Carmen Ron subsequent during rape” repeated Plaintiffs-Appellants, Rhodes, ana care, time home- spent years in foster Perhaps 123 S.Ct. Id. less. crucial, Wiggins in petitioner most Coquille, Ore Investors Hills Forest Id. mentally retarded. partner Oregon Ltd., gon limited Ltd., Investments, an Ore ship; Jadin evidence, which reveals new Correll’s adult,” partnership; Norseman gon functioning limited highly is “a he partner Oregon miti- limited Village, an “powerful to the close nowhere comes Defendants, Wiggins. ship, gating narrative” fact, district 123 S.Ct. 2527. to evalu- position best judge, who capacity Veneman, her official Ann evidence, when one concluded ate De secretary States the United negative positive both the considers Agriculture; partment of evidence, DBSI/TRI new repercussions Realty Partnership; DBSI Limited IV aggravation balance

Case Details

Case Name: Correll v. Schriro

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 2, 2006

Citation: 465 F.3d 1006

Docket Number: 03-99006

Court Abbreviation: 9th Cir.