*1 1027 475-76, 444 100 attorneys Boeing, that ment. See U.S. at contend The class’ 747-48; (6) Workers, have their at Mexican court calculated S.Ct. Six should district has entire million F.2d at 1304. The of the 904 $4.5 fee as one-third fund, parties of mil to a action a fee about that class $1.5 for indicated settlement lion, calculating may it as of properly negotiate than one-third not the settle- rather fund, against itself, pay- members’ claims of the but also the the class ment action $3,300. We conclude attorneys’ for a fee fees. See Evans v. ment Jeff by D., 734-35, 30, its discretion1 717, court abused n. the district 475 738 106 S.Ct. U.S. claims 1540-42, 30, fee on class members’ basing 1531, n. 89 L.Ed.2d 747 1543 percentage than on a knew, the fund rather against here because Defendants We or on lodestar. of the entire fund agreement, it in the settlement and remand. thus reverse attorneys fees would seek recover class on the entire million fund. See based $4.5 Gemert, 472, Boeing In Co. v. Van 23. some 198 at The Defendants had CR 745, 750-51, 480-81, 676 62 L.Ed.2d at for a responsibility negotiate the outset (1980), that the attor- the Court concluded if settlement fund wished smaller fee class recover a neys for successful limit the fees. for common created based on entire fund class, make if class members even some reversed The order the district court is money against fund so that claims pro- matter for further and the is remanded re- that otherwise would remains opinion. ceedings consistent with (6) Mexi- to the defendants. Six turned AND REMANDED. REVERSED Growers, v. 904 Arizona Citrus can Workers (9th Cir.1990), 1301, held like- 1311 we F.2d

wise, that our benchmark and indicated in a class attorneys’ fee successful award twenty-five entire percent

action course, percentage fund.

common Of adjusted unusual

may be to account Alston, Paul, Johnson,

circumstances. See (9th F.2d 272 Graulty, Hunt v. 886 & GERLAUGH, Darrick Leonard Cir.1989). applied We have the lodestar also Petitioner-Appellant, v. approach some cases. See Florida (9th Cir.1990). Dunne, 915 F.2d case, recognize opposed in this We Terry STEWART, Director of Arizona (6) Workers, Boeing Mexican and Six Corrections, Department of necessarily class do absent members Respondent-Appellee. interest the unclaimed calculable No. 95-99018. fund, will

money in the be returned pay the if it is not used to the defendants Appeals, United States Court attorneys’ Boeing, See class fees. Ninth Circuit. 747-48; (6) 475-76, 100 Mexi Six May 23, 1997. Argued and Submitted Workers, at 1304. The district 904 F.2d can apparently payment that the concluded court Nov. Decided money in the fund remaining from the fees shifting: prohibited fee thus would amount defendants,

assessing rather against fees But, against the class members.

than absent (6) Boeing unlike and Six Mexican

also

Workers, a settlement this ease involves length, judg- negotiated at arms (9th Community Cir. College, F.3d of discretion a district

1. We review for abuse 1996). attorneys’ fees. v. Pima award of Nelson court's *3 Lieberman, McMath, Tonya Phoe- Martin Arizona, nix, petitioner-appellant. for General, McMurdie, Deputy Attorney Paul McClennen, Attorney Gen- Assistant Crane eral, Phoenix, Arizona, respondent-appel- lee. REINHARDT, THOMPSON

Before: TROTT, Judges. Circuit TROTT; Opinion Judge Partial Judge Dissent and Partial Concurrence REINHARDT.

TROTT, Judge: was writhing pain on the Circuit roadside. began plead He assailants to young was a man who Scott Schwartz tell him the reason their attack. Peti- leg aid of a brace and walked with the tioner took a from the rear screwdriver Shortly midnight on before Janu- crutches. head, victim in the car and stabbed the picked up hitchhikers Dar- ary twenty neck and least shoulders at times. Encinas, Joseph and James Gerlaugh, riek also Leisure stabbed victim ten to What Mr. Schwartz did Matthew Leisure. twenty times. group’s know when he accommodated pathologist A testified these various they previ- was that request for a ride injuries, any assaults caused several ously agreed picked to rob whomever them which would have fatal. The victim up. fractures, puncture suffered numerous together in As Mr. rode Schwartz’s injuries wounds internal from his head *4 car, petitioner Gerlaugh, already who on body his to midsection. His entire robbery, probation suddenly pointed covered with and abrasions. bruises íhe him firearm at his host and forced to drive to dragged body three men Schwartz’s off the Mesa, near deserted area Arizona. We adjoining road and field covered it opinion borrow from the third of the Arizona kept with alfalfa. all Petitioner petitioner relate what Court to and money taken from the victim. his confederates then did to rob Mr. The three men returned to the road and $37.00, Schwartz not but also of his away in drove Schwartz’s car. When the life: down, they hitchhiking. car broke resumed There, the men out three forced the victim picked They up Harry were Roche in pointed gun of his ear. Petitioner the pickup truck at about 2:00 a.m. Peti- money. Schwartz and demanded Schwartz gun tioner leveled the at Roche forced and grabbed petitioner. gun from While him to make an apparently random series escape, pointed attempting to the victim Finally, petitioner turns. ordered gun pulled trigger. and at Leisure pull Roche to off to the side of the road. gun up” not fire. “You The fucked complained Roche first and refused exclaimed, petitioner “There’s bullets in muddy partic- the roadside was too at that gun.” The three men knocked point stop. petitioner ular point- When ground, they Schwartz to the where beat head, however, gun ed the at his Roche him for ten to and kicked fifteen minutes. stopped quickly put the truck. Roche Petitioner then announced that would in gear away. truck sped and Petitioner prevent have to kill him from Schwartz later admitted that he intended to rob identifying them. Petitioner En- ordered Roche. emas and Leisure hold Schwartz on the 449, 454, v. Gerlaugh, State 144 Ariz. run road so he could the victim over with (1985). P.2d dodging the car. The victim succeeded police petitioner interrogated Ger- by diving the car several times into an arrest, laugh after his he confessed to his adjoining finally Petitioner ran canal. over participation in these crimes. When asked Schwartz with the victim’s Conti- Lincoln Schwartz, felt how he after he Mr. killed impact nental and felt the victim’s was, chilling you answer “How do feel when body with over the car. Petitioner ran game?” kill Id. added that He he did victim two more times and the vic- struck killing bad at all feel about the victim. tim’s the car bumper head with at least point, one petitioner posi- joint Encinas, time. At one jury In a trial con- tioned top the car’s left rear robbery, wheel on victed kidnap- armed Schwartz floored ping, degree the accelerator. Al- first murder.1 In addition hurt, though badly receiving twenty-one years victim was still alive sentences of suppressed plea agreement accepted. Because the trial court co-defen- him a confession, dant Leisure's State offered to instruction.”); Spaziano warrants such an robbery kidnapping offenses the armed Florida, 447, 456-57, 104 of thir- consecutively with a sentence to run (1984) 3160-61, (holding 82 L.Ed.2d for violation of his rob- ty-five years to life give court need lesser'included offense Gerlaugh was sentenced bery probation, instruction where statute of limitations had judge to death for the murder. the trial offenses). run on those Gerlaugh’s case comes to us on Petitioner in the district court of appeal from a denial note first that “[u]nder We Arizona presenta- petition corpus. for habeas His law ... there is no lesser homicide included fifty court contained tion to the district felony offense of the crime of murder since claims, here he advances ten. We necessary supply pre the mens rea volumi- these claims and the have examined degree element of first murder is meditation case, them to record in this and we find nous supplied by specific required intent affirm Accordingly, without merit.2 we Arias, felony.” State v. 131 Ariz. court. the district 443-44, 641 P.2d 1287-88 But fundamentally, more even if we were to as requested by sume that such instructions as given the defendant should have been Guilt-Phase Claims jury, injuri we can discern no “substantial claims related to Gerlaugh advances three ous effect or influence” from the failure to do *5 district guilt phase of his trial. The Abrahamson, 619, so. Brecht v. 507 U.S. in court examined each and concluded detail 623, 1710, 1714, 113 123 L.Ed.2d 353 S.Ct. they agree. According- lack merit. We (1993). Notwithstanding his use of intoxi ly, we limit our discussion of them to brief cants, Gerlaugh’s the evidence of actual in why explanation fail in the context of weak, extremely toxication was and the evi collateral review. federal kill, rob, intent dence of his and to kidnap overwhelming-especially that was A. coming from his own detailed confession. In Gerlaugh claims that the state it, Gerlaugh acknowledged to Detective by re court committed “fundamental error (1) hitchhiking in his intent was to Weiss fusing on included offenses to instruct lesser (2) robbery; consciously he made a commit evidence,” reasonably supported by the “to kill Mr. Schwartz so as not to be decision (2) (1) murder, namely degree second (3) robbery;” by him for the identified defense, pre theory of which was theft. His spin causing the left rear wheel to intent jury adequately by sented to the and covered him; body was to kill on Mr. Schwartz’s instruction, was that his use of intoxicants (4) failed, strategy exited “[h]e when the tire specific required for the negated the intents killing Mr. go the car to over and finish charged. legal As crimes with which he was Gerlaugh acknowledged also Schwartz.” us to support argument, for his he refers money ending up with Mr. Schwartz’s Alabama, 625, 447 100 S.Ct. Beck v. U.S. Thus, refusing partners. it with his to share 2382, (1980), 65 L.Ed.2d 392 and Vickers v. critical elements of the offenses with (9th Cir.1986), Ricketts, which 798 F.2d 369 charged proved by was were case, generally capital that in a a court hold Accordingly, overwhelming evidence. every must instruct on lesser included of must fail. claim fense for which there is the evidence Hopper v. substantial factual basis. See also B. Evans, 605, 611, 2049, 456 102 S.Ct. U.S. (1982) (“[D]ue claim,

2053, Gerlaugh’s citing Bru 72 367 next L.Ed.2d States, 123, in 391 88 S.Ct. requires that a lesser included offense ton v. United U.S. 1620, (1968), v. New given only the evidence 20 L.Ed.2d 476 and Cruz struction be when 1996, Gerlaugh’s petition pending Penalty we the "old law" to Act of use 2. Because was 24, Murphy, April case. See Lindh v. to the enactment on decide this federal court 2059, (1997). — U.S. —,117 S.Ct. 138 L.Ed.2d 481 of the Antiterrorism and Effective Death 1996 1032 1714, Schwartz, 186, virtually unchal-

York, 95 murder of was 107 S.Ct. U.S. 481 (1987), lenged. is that his Sixth Amend 162 L.Ed.2d of witnesses was to confrontation right

ment into evidence of the admission

violated II codefendant, nontestifying confession of Penalty-Phase Claims Encinas’s and note first that We Encinas. nearly were identical. Gerlaugh’s confessions A. Gerlaugh’s conviction and sen At the time claim, vigorous one that most final, Randolph, 442 Parker v. tence became panel requires height- divides this our 2132, 2140-41, 75, 62, 60 99 S.Ct. U.S. attention, representation is that the ened (1979), not bar the state 713 L.Ed.2d appointed from his con- received long from evidence so of codefendants ments sentencing aspect of his case nection “interlocking.” altered they were Cruz ineffective, citing v. was not Strickland Second, Gerlaugh has nev in 1987. this rule 2052, Washington, 466 U.S. 104 S.Ct. 80 confession; accuracy of his challenged er (1984), that it L.Ed.2d 674 but so defective fact, probation officer he admitted though was as he had no counsel at all. For report for the trial writing pre-sentencing proposition, Gerlaugh our the latter directs Accordingly, and judge that it was correct. Cronic, attention to United States unavailable to assuming that Encinas was 80 L.Ed.2d Illinois, 476 testify, and Lee v. under Cruz subject holds that if counsel fails to Cronic 2056, 2064, 530, 545, “meaningful the state’s case to adversarial (1986), prop his confession L.Ed.2d testing,” prejudice then to the client will be hearsay. But erly introduced as admissible presumed. Id. at 104 S.Ct. at 2047. its admission was even if we assume These Sixth Amendment claims error, error was harm conclude that the we lawyer brings against his rest not by any because the codefend- less standard says what he have done his counsel should thoroughly reliable and ant’s confession *6 not, but but also on what counsel do did did Gerlaugh’s description own consistent very badly. allegedly but We note Indeed, portions of it were the homicide. passing Gerlaugh that counsel for was certi- helpful him. even specialist practice in Arizona as a fied Gerlaugh’s eighth of criminal law. was his C. penalty death case. Gerlaugh’s third claim has to do with (1) into evidence admit admission 1. decedent, tedly of the gruesome photos The Failure to Call Witnesses (2) Roche, testimony of Mr. who evident ly hypnotized prior aspect Gerlaugh’s to trial. The first ineffec been On had issues, of these we conclude as tive assistance claim is that his counsel knew examination they cogni during court that are not of but failed to call as witnesses did the district proceeding. allegation sentencing hearing people Neither three who could zable in this spectre mitigating sentencing of fundamental unfairness have related relevant raises the Parkhurst, to violate federal due of law. evidence to the court: Bertha such as McGuire, 62, 67-68, Sanders, Helen and Ramona Button. This See Estelle v. (1991) 479-80, 116 L.Ed.2d 385 same claim was first examined detail a (federal post-conviction proceeding in relief does not lie for state- State court. habeas post-conviction proceeding The law errors but is limited to violations of included rights). evidentiary hearing Mr. was federal constitutional Roche conducted notwithstanding hypnosis judge the same trial who had sentenced Ger- was unable trial, hearing, identify laugh and the remainder to death.3 At the the three question testimony, of his which was not about the character witnesses testified as Judge Originally, developed considered the tran- 3. the evidence was in front ferred to Brown who script previous hearings. judge, of the of another but the matter was than trans- they they have said had but chose as a what could tactical matter not to use it. original presentencing hearing. A called at the reasonable tactical choice based on an ade- main, picture they presented of quate inquiry In the is immune from attack under petitioner boy of a who had taken 689-91, Strickland. 466 U.S. at 104 S.Ct. at pets care of their children and without inci- 2065-67. displayed dent and who had to them at least event, In even if we were assume to unpleasant

no violent or tendencies. One of contrary, agree we with the Arizona Su testimony with the witnesses buttressed her preme Court and the district court that no avoiding vignette about prejudice can be shown based on counsel’s showing concern a snail on which he choice not to call these witnesses and to might stepped, suggests in which con- proceed Calderon, as he did. See Bonin v. respect that he text had more for mol- (9th Cir.1995), 59 F.3d cert. de people. lusca than The witnesses had no —nied, —, explanation petitioner’s recent brutal con- (1996) (“[wjhere L.Ed.2d 671 aggravating subject trial. duct was the of his Ger- overwhelming, partic circumstances are it is that, testify laugh’s father was also called to ularly prejudice difficult to show at sentenc father, although good he believed he was a ing alleged present due to the failure to very disciplinarian. he was strict evidence.”). mitigating judge post- at the conclusion of the hearing conviction found that this evidence good was insufficient to establish character Psychological The Failure to Use Evidence Moreover, as circumstance. aspect petitioner’s The second inef trial counsel was aware fective assistance claim is that counsel failed original trial of these cumulative wit- part sentencing process develop offer, nesses and what psychological and to use evidence on his bring made a tactical not to decision them support chent’s behalf. allegation, of this questionable into the case because of the petitioner presented testimony of Dr. probative testimony. of their value He be- O’Brien, psychiatrist, post- Thomas at the testimony lieved the could backfire because it evidentiary hearing. conviction On Ger although Gerlaugh could indicate that behalf, laugh’s peti Dr. O’Brien testified that capable compassion, he reserved it for personali tioner from a suffered character or animals, Instead, beings. not human ty soeiopathy called disorder extent painted sentencing a more direct petitioner’s capacity to conform to the sympathetic picture of his client call- *7 requirements grossly im of the law was stand, ing parents by his inter- hand, paired. On the other as the Arizona viewing petitioner’s six of friends from school remarked, Supreme Court causing and then brief summaries of the gleaned incorpo- unsavory portrait petitioner information from them to be petitioner’s presentence report emerges testimony rated into from Dr. is O’Brien’s fact, remorseless, mitigating parents’ bullying sociopath evidence. that of a testimony upon incorporated merely drew who for the ma- victimizes others large proving “superiority” measure what the three witnesses cho thrill of to his contempt society’s would have said about their laws. son. victims and O’Brien, According petitioner to Dr. killed circumstances, Under the we believe by being for the status he received able to performance during that counsel’s this criti escape consequences of his actions. aspect sentencing phase cal of was not Thus, petitioner bragged stealing about deficient. He did what he could with what' money family from his he was own because with, he had to work which was not much. away get able to with the theft. Furthermore, particular allegation this does 144 Ariz. at 704. 698 P.2d potentially involve favorable evidence reasons, about which counsel was oblivious. Counsel For four we discount the effect it, develop “Dr. knew about the evidence and looked into counsel’s failure to O’Brien’s per- (or through, sociopathic prior peti- follows or he’s equivalent) testimony” its absolutely sonality. inconsis- sentencing. The two are tioner’s life, period in his tent. And at the same Supreme First, Arizona as held why I Foreman. That’s raise Mr. petitioner’s “mere Court, evidence you help question, so could me understand sociop- like disorder personality character something. missing where I’m sufficient to constitute athy not alone is (citing Id. State mitigating problem circumstance.” here is MR. FOREMAN: The 197-98, Richmond, 560 P.2d Ariz. primarily you of time. If will look at one (1976)). opin- 52-53 testimony you will find that the expressed by Miss Park- ions that were Second, psychiatric although such evidence hurst and the other witness that we because normally and admissible is relevant presented hearing- at the earlier other than the may suggest some reason it should be why the defendant disorder itself THE Miss Sanders. COURT: judge hearing leniency, the trial treated Yes, MR. FOREMAN: Inez Sanders. hearing post-conviction at the this evidence upon period of Were based an extended held that it did establish time; years with the of involvement defen- Arizona circumstance. The dant. Par- agreed with this conclusion. on review testimony upon an Dr. O’Brien’s is based judge enthetically, remarked year. within the last evaluation conducted hearing picture that the post-conviction And- Gerlaugh conflicted painted by Dr. O’Brien of presented by opinion THE But relates dramatically with the evidence COURT: witnesses re- Gerlaugh’s three character back to the date of the offense. opinion: to earlier this ferred MR. back to the of- FOREMAN: Relates (To Gerlaugh) THE COURT: spoke fense. he about how Darick And ineffective assistance really You think developed. developed- Darick put psychiatric not to on the of counsel THE I Miss COURT: Did misunderstand lay put on the wit- testimony and then saying Parkhurst that six months everything directly contradict nesses who arrest, handling dogs? he was still testimony You psychiatric stood for? tape correctly? Or did not hear the when have to that to be ineffective find tape MR. You heard the cor- FOREMAN: See, because this Court make that choice? rectly. lay that those wit- absolutely convinced every- Okay. THE absolutely have contradicted COURT: nesses They Dr. to. said thing O’Brien testified added). (Emphasis law-abiding citizen. He perfectly was a Third, petitioner specifically informed sociopathic. He was not was nonviolent. full counsel before trial and with the knowl- to animals. He followed the He was kind edge that his life was the balance that he everything fol- He did he was-he rules. undergo psychological “did not want through. He didn’t need instant lowed examination because he did not want some- dogs. gratification. He took care of the *8 never prying one into his mind. Petitioner things Dr. said He all the O’Brien did any there- indicated to defense counsel time doing. him personality precluded his from changed this after that he his mind about Now, I do with that? Mr. Fore- what do 459, 144 at 704. decision.” Ariz. at 698 P.2d man, help why you me? don’t say Here is what counsel about this Respectfully, MR. would FOREMAN: during post-conviction the State hear- issue disagree completely testimony that their is ing: Dr. way inconsistent with O’Brien’s Q. trial with But discuss testimony. you heard from Dr. As (sic) seeing probability them of his O’Brien- psychiatrist? nice, loving, THE either a COURT: He’s dedicated, A. young man who Yes. conscientious

1035 And, Lane, Q. you saying by 288, Teague are that he refused to eluded v. 109 psychiatrist? (1989)-for

see 103 L.Ed.2d 334 revisiting with his client the issue of such an psychiatric A. He did not want in- Yes. examination after conviction and volvement the case. preparation sentencing. The challenged We note that has never pressed counsel should have testimony. personal this Petitioner’s wishes client on this issue get and tried to him to regard respect. in this are entitled to See change his mind. Trial counsel has no recol (9th 1180, 1197-98 Blodgett, v. 5 F.3d Jeffries having attempt. lection of such an made But Cir.1993) (counsel not ineffective for ac regard even if we lapse were to such a as a quiescing regarding defendant’s wishes mistake, it consequence would be of no defense); Calderon, nature of his Bonin v. 59 this case (“[T]he because we know what counsel presentation expert F.3d at 834 .found, and, balance, would have judge we [psychiatric] testimony necessarily is not an potentially it to be petition more harmful to ingredient reasonably compe essential of a defense.”). er than it could have been of substantial addition, judge tent the trial avoiding assistance in penalty. the death As post-conviction proceeding entered a trial/post-eonvietion hearing judge and finding of fact that “Petitioner had failed to Supreme remarked, then the Arizona willing psychi establish that he was to have testimony petitioner Dr. O’Brien’s revealed testimony presented sentencing atric at the person to be a who associated issue, with “wild hearing.” About this the Arizona Su companions” “sought compa and who out the preme Court said: ny of hurting lawbreakers for the thrill of Supreme Court has indicated that others escaping consequences and then attorney’s concerning representa- decisions 144 Ariz. actions.” at 698 at P.2d properly tion can be influenced agree 706. We the Arizona client’s wishes. See Strickland v. Wash- Court that this has evidence “obvious coun 690-93, ington, supra, 466 U.S. at tervailing dangers petitioner.” tactical 2066-67, S.Ct. at L.Ed.2d 695-96. A Id. 698 P.2d at 704. In its best attorney’s defense deference to his client is possible light, it is a basket of cobras. Ac especially appropriate where the defendant cordingly, identify prejudice we can flow privacy has a interest at stake. 17Cf ing develop from counsel’s failure to Dr. Procedure, Rules of A.R.S. Criminal rule testimony. pressed O’Brien’s Had counsel 15.2(a)(8) (defendant cannot be forced to information, his client and discovered this psychiatric psychological submit to a highly likely damning report examination). obligat- Defense counsel is would have remained confidential. See Bo to insure that ed his client is aware of the nin, (the expert 59 F.3d at 834-36 use of consequences of such a decision. Petition- psychiatric testimony opens pow the door to not, however, er has shown that trial coun- rebuttal). erful cross-examination and adequate sel failed to render advice re- garding this decision. Parenthetically, given approach this court’s Additionally, the record reveals that trial lawyer’s potentially to a introduction of dam- suggested to the trial court at client, aging against evidence his own one sentencing psychiatric that a examination certainly would the reluctance of understand petitioner helpful in deciding would be any two-edged counsel to introduce swords conceded, punishment. Trial counsel how- Calderon, into a case. See Wade F.3d ever, that failure to order such an exami- Cir.1994) (9th (the introduction likely nation would not constitute revers- damaging testimony against counsel of rejected judge ible error. The trial suggests client ineffective assistance of coun- suggestion. sel). Had trial counsel introduced Dr. *9 459, 144 Ariz. at agree. 698 P.2d at 704. We case, testimony O’Brien’s into this no doubt

Appellate counsel hearing for and our we would be now a claim based on respected colleague in dissent fault trial that it was a mistake for coun- Wade serious pre- counsel-in what sentencing sounds like a new rule sel to have informed the court 1036 identify any cannot fault with Arizona’s rule predatory a remorseless was

that his client people assigns post-conviction innocent for review matters bully victimized who judge. Only original for in an to the trial See State ex rel. killed status. thrills and who Court, 500, 503, lawyer v. 138 safely Superior can a reveal Corbin Ariz. appellate context (1984) rule). 1319, (enforcing 675 P.2d 1322 unflattering evidence about his client such him, immediately damaging this without 3. issue, lawyer is

is because on trial, not the client. Leniency The Failure to Plead for finally, to send this case back Fourth and nonevidentiary move now to a We to hear court the evidence to state trial phase aspect sentencing perfor of counsel’s develop or to to introduce- counsel failed mance, in claim framed terms Cronic witnesses as the including the three as well argument to counsel’s oral the sentenc looking-glass exercise in doctor-would be that, ing judge and deficient was so weak judge folly. sentencing trial and has The effect, Gerlaugh was left without the Sixth already of this considered all information representation to Amendment which he was post-conviction hearing and has held argues Appellate entitled. that this his judgment none have altered as of it would alleged beg leniency pre to for failure And, penalty Gerlaugh. proper requires sumptively prejudicial and a rever at the looked Arizona sal, regardless of of an absence demonstrable post-conviction results of substance and prejudice. argument is tantamount to judge the trial in all proceeding and affirmed deficiency, claim that a discrete al such effect, respects. petitioner already has error, though a trial is structural and thus asking in a had what he is for-consideration analysis. evades harmless error respect- this evidence. hearing formal of We outset, although fully the State courts to do At the we have dis decline to order Gerlaugh’s already aspect cussed of again been done. each claims what has against lawyer separately, we his do not be argue does that because Petitioner appropriate segregate lieve it to be coun being judge post- asked at the presentation sel’s oral on behalf of his client change hearing judg final conviction stage at the sentencing proceeding ment, disqualified. have been This he should from the measures taken on other his behalf. facially long unsound. argument is “It has test, totality Under it is the of his the Cronic proper as normal and for a regarded examine, just part efforts not that we must judge upon same case in the its re to sit “[Specified them isolation. errors made mand, involving in successive and to sit trials by counsel ... should be evaluated under Liteky the same defendant.” v. United standards enunciated in Strickland." Cron States, 540, 551, 1147, 114 S.Ct. ic, 466 n. U.S. at 666 104 S.Ct. at 2051 n. If 127 L.Ed.2d fashioned steps Accordingly, we examine taken rule, Gerlaugh’s into a result would try behalf counsel on unnecessarily dislodging trial judges from protect penalty; client from the death post-conviction proceedings on as the false explanation we begin with counsel’s sumption judges are capable that trial not approach strategy as he testified court, doing requires. law In our what the post-conviction hearing: we have on rare occasion remanded cases to Q. Now, Okay. after Darick found judges, but never in different trial circum murder, guilty first-degree obvi- presented stances as benign in this case. ously step prepare was to the next Such new rule of constitutional command aggravation/mitigation hearing; sense, any makes no could not that correct? apply Gerlaugh. event Teague See A. Yes. Lane, (a (1989) Q. Darick L.Ed.2d 334 new constitutional rule ask either Did procedure normally family pos- criminal of his members about applied review). on collateral We sources of evidence? cases sible *10 A. Yes. reversed and he is now off of death row. Q. you try develop And what did do mitigating evidence? Q. you you And said that thought recall,

A. As I I asked Dariek and his a penalty was definite death ease. family, being his father and moth- you What made arrive at that conclu- er, people for the names of that I sion? might contact or interview who would A. The manner which the evidence testify in be available to his behalf. basically came out at trial was estab- great This was a ease of deal lishing all of the —or good many I concern to me because was of the aggravating circumstances that opinion being that Dariek convicted of my statute covers. That client had would, doubt, the crime without conviction, robbery, which was a sentenced death. for which he could have been sen- attempt in order to make an So tenced to killing life. That the life, speak, save Dariek’s so to and not expectation done with the of some death, him sentenced to I was actu- gain. killing That the was done an ally looking mitigating witnesses who especially cruel and heinous manner. something unique would find about Dar- out, things Those came from By they iek. I that mean knew trial, the basic evidence in the for exam- something personal about him that was ple, examiner, the medical but also from physical either a ailment or a mental the confession that Dariek given. had problem gone that had untended to that knowing Based on what the statute problems have created some with called for and how Dariek fit into that Dariek that then created the situation situation, particular I had no doubt that got that he himself into the murder of up unless I something could come with Scott Schwartz. substantial given that he would be pleased ISo wasn’t real with the in- penalty. death back, got formation I because it all sur- Q. itself, you Prior to the trial give just rounded the —what I termed the any thought you explore to —or did or words, good guy syndrome. In other possibly about insanity think de- people good things say had about fense? know, Dariek. You enjoyable he was an person. I believe someone said that situation, A. In looking at that I do recall hope baby- he —I this is correct —that he talking psychia- with Dariek about a prob- sat for their child and had no trist, psychiatric testimony. about child, leaving lems him with the But I very coop- found—Dariek was a type thing. my erative client. In estimation he client, good

But I up found no one who could come was a someone that would something unique help help just that would me and not hinder me and give problems me fit him into a mitigating through circum- me as we went stance, legal mitigating circumstance the case.

by law. point But this I one didn’t find unusu- Q. your practice, al, criminal law how point and that is that Dariek did not many penalty death cases do think psychiatrist want a involved in the case. handled,

you’ve potential unusual, death The reason I didn’t find that I penalty cases? represented people other who were Indian, people Eight, prying A. I didn’t want believe. into their minds. And understood Q. many And how of those defendants saying what Dariek was about that. actually penalty? received the death Dariek, Including A. obviously there is John Adam- It important to me be- son, cause, and Robert very frankly, Cruz received the this case had no penalty, death but his case has been legal factual defense. It was a case of a *11 leads, defense, to be inter- trying get the confession down these caused them to my opinion, viewed, testify if I—in if then the wit- suppressed. And and called to con- getting helpful. I been successful he believed most had nesses would be suffi- suppressed, there was not regarding fession the others He submitted materials Darick. to convict cient evidence Probation De- to Mr. Ed Delci the Adult partment so that Mr. Delci could include you prior anything that saw Q. there Was presen- supplemental their statements a you that have led to would to report. tence insanity might that an defense believe a viable defense? be Moreover, excep- took vigorously counsel A. No. written tion to the conclusions in Mr. Delei’s hearing on presentencing conducted At the the effect showed no work to that February began counsel on his for his criminal behavior. Counsel remorse applicability attacking client’s behalf directly to behalf of argued the court on aggravating circumstances. He of two of Mr. report Delci’s was defec- money Mr. Schwartz’s argued that because tive, accept responsibility his client robbery killing, no had taken after the was done, for what he had and that he did demon- that notwith- argued Counsel also occurred. way. remorse Further- strate his own gruesome evidence adduced at standing the more, emphasized age his client’s as trial, killing was of Mr. Schwartz large mitigating in connection “one factor” compared as to other mur- heinous cruel or decision sentence and with court’s as to his no evidence was offered that ders because doing thorough Mr. Delci a assaulted for not companions his intended Mr. Gerlaugh and say in job. Here is what to this counsel had suffer, he was to or that tortured. Schwartz connection on behalf of his client. although argued that the evidence Counsel you. MR. FELDHACKER: Thank One light pros- most favorable to the taken of the basic reasons I wanted to make kill “an intent to this ecution demonstrated today opposed some comments to wait- as attempt try person[,] ... was no to to [t]here I ing opportunity is because to have had person. Any of the acts that torture this presen- doing talk to Ed Delci who is simply meant to may find to be atrocious report or presentence tence who did the actually the victim and not to make murder report. prior making to the decision him suffer then implied him.” simply Strongly kill to THE COURT: show he The record course, position argument, is counsel’s present, I believe. penalty appropriate for was not the death my MR. It FELDHACKER: Fine. was client. impression supple- that an additional then called to the stand Ger- Counsel or, report going prepared mental to be laugh’s parents, both of whom testified in least, going additional information was mitigation that their son had while given just to the I to be Court. forwarded companion growing up baby-sitter; a model a synopsis of a brief some interviews of some Scout; woman; elderly squad to an Cub people who had Darrick contact with Boy “moving Eagle in the to an leader Scouts was concerned that be made available animals, Scout”; dogs, especially kind through to the Court the Probation De- member; family good guinea pigs; a normal partment. Mr. me if I Delci did ask sister; worker; but also someone written-type give recommendation fall under the bad influence of who seemed did, prosecutor] I [the Mr. Imbordino codefendant, Leisure, mar- Matt and then him that I I advised did not and that would ijuana. my simply make to the remarks Court. So, presen- hoping copy here I am We reiterate have one —I hearing, his client with me. It on the teneing counsel asked has some notes provide family for a of witnesses who back so can’t with it his client’s list the Court but, today, perhaps, if willing testify he has received would it, provide behalf. is able to The record shows that tracked not, copy point him get fine. If I will another to this to let me decide whether know, or not he live or Court. should die. We obviously, large mitigating one circum- THE I will state that the COURT: *12 age. stance to Mr. has is his I Probation Officer does not have it. will consideration, The Court can take that into my copy bailiff make a of it before one, I but think that is the obvious you today leave so I will have it. And, I young that have a client. he was MR. I don’t have it with me. DELCI: young at the time of the commission of this preparation supplemental re- The But, really and, I nothing act. found available, port progress. is in It will be again, I don’t know if the Court wanted including the materials that have been re- more, any it point but disturbed me to the ceived. to where I myself wanted to address to it. you. MR. FELDHACKER: Fine. Thank That I think something there should be thought forthcoming. I there was one more before this Court. Whether it is sure, course, I am not of what all is upon people my incumbent who find client going supplemental report, to inbe think, say, perhaps, has no remorse to I couple things there is a that struck me should be get, possibly, looked so we can through report I it read con- psychiatric a evaluation to determine report cerned not that’s before not, know, you whether or what his make- time, presen- the Court at this but also the is, up whether or not there ais remorseful report my that was to tence written as brought situation here involved and what previous client on conviction him to commit the acts that occurred. robbery charge. just anything, There doesn’t seem to be And, that that in both cases the all, about that. presentence officers have that indicated don’t, I didn’t feel and I still that I am in they particular my saw no remorse in position my a to tell this Court that client acts, example, for client either of the psychiatric needs evaluation for under- this homicide that occurred or for the rob- trial, standing going what is on bery past. occurred understanding today going what is or them, reports, I think in reading go what will sentencing, on at his because show, obviously, my client is I know he does He knows understand. accepting responsibility of what oc- communications me what these But, again, curred and what his acts were. proceedings why they are and are occur- they simply opinions relate in their a lack And, ring. yet, just I wanted to address of remorse. myself to that as to whether or not the thing me concerned about going Court is to consider that it wants or just is to tell this Court that there is no desires that further information —I am not thought, surely, remorse. I someone telling you legal that I think there is might go deeper want to a little in that or it, I ground saying am not that I think just saying, everyone into that or are we that it is error for this Court to sentence that, way must show remorse the same type him without that of further informa- perhaps, you might expect I someone tion, I but was also disturbed on the fact to, by expressing outwardly either the sor- my that there was no contact with client’s know, by, you outwardly showing row family, attempts go out and see remorse; physical appearances crying, something something more. Is there more whatever. give to this Court as far as And, superficial it seems me little my circumstances of client? just say that I see the of this case. facts killing. my job. It I is brutal It is a atrocious That is I have done as best as therefore, and, killing Many people It he must receive the can. is a decision. are penalty. killing death know if the of this and are don’t aware the facts about, know, questions you giving further concerned about the Court further Gerlaugh, brought who is Darrick what information. attorney-client relation- going' inquire. the Court I was

THE COURT: ship- purposes of this hear- that one Isn’t bring forth the defendant to

ing, to enable THE COURT: I understand. any of the information that he to the Court It makes diffi- MR. FELDHACKER: presented? feels has not anything that I Today I don’t have cult. that, say Absolutely, going am to the Court about with- FELDHACKER: MR. - doubt, saying, that why I am out today, responsibility here as well. my telling THE If what are COURT: But, all have in the again, I think we people is that not all show remorse me - Department as well as defense Probation ways the same *13 this as much infor- give counsel to Court sincerely MR. I be- FELDHACKER: person. they can about the mation as that. lieve And, only really, those are the comments I, certainly, might THE be COURT: just making as far as I have at this time agree inclined to with statement. my feelings as to aware of the Court That is all I MR. FELDHACKER: might fur- not the Court want whether or have, Your Honor. particular on this ease information ther THE Mr. Imbordino. COURT: that, you I fact that think based on the Honor, MR. Your IMBORDINO: know, report, reading probation it myself to at thing I would address crime in that I have to be a terrible seems the comment that Mr. this time would be anything bad before. Ev- never seen on his client’s remorse stated. Feldhacker death, therefore, obvi- eryone recommends apparent, I think that is the lack of say. nothing good to That’s ously, there is- remorse, apparent is from the statements the end of it. that he made to the Probation Officer that as an officer of the just I believe preparation report. report re- am, Court, I which the Probation by the defen- fers to the statements made are, greater a little obli- there is Officers arrested, dant at the time he was when he opposed simply saying, gation there as question by police offi- was asked my has no remorse. client cers, killing how he felt about Mr. you, here and tell Your I can stand said, And, “It Schwartz. Mr. Honor, my remorse client about just killing animal.” He like an have, but, again, Mr. Imbordino can stand no remorse at that time to those showed any, so, up say, he has never shown police officers. any. just Those are words doesn’t questioned He was the Probation Of- people deep- coming that are from that are and, thing apparently, ficer on the same I, really, ly involved in this and believe reaction, lack of the same showed same if thinks that it’s this Court decision lack of remorse. all, may tip, my on whether or not client it, say All I can if I is that he felt don’t simply so cold-blooded and committed Court, important whether it is to this know murder or had a remorseful cold-blooded he, remorse, whether or not he feels but situation, right whether be afterwards certainly, opportunity has to ex- time, I think point at this then the Court press it and he didn’t do so. asking psychiatric might consider I, specifically, during did not testing. evaluation and bring very out those statements of the Certainly, I THE would be COURT: trying I I defendant because felt since was you say happy anything have to to listen two defendants at the same time didn’t expressions regarding your opinions or on unduly prejudice want to Mr. Encinas with you, certainly want to inform remorse the. Gerlaugh, Mr. I think it the remarks of of. Court report they were is evident from the Mr. has admitted to MR. A lot of times made and FELDHACKER: making there them. problems are real when we address Imbordino, I might THE Mr. will This court be well COURT: aware of the this, say in matters of this nature that I many fact made a record times on anything more seri- I cannot conceive the fact that this Court should consider Every important to this demanding prosecution ous. factor theory elect which going make its under, and the Court is going jury he was whether it on all informa- premeditated determinations based murder or murder felo- I have to me in accor- ny. tion available This Court did not do that. with the statutes.

dance give I then later asked the Court to jury separate forms of verdict so that we judgment day, On the counsel made anoth- would know what kind of verdict attempt penalty by er to derail death with, premedi- came back whether it was waiting imposed until sentence had been tated murder or whether it was murder charges interrupting non-death then felony. jeopardy. a claim of double legal appearing, that, therefore, THE No cause COURT: This Court did not do robbery], it is again [armed Count One I think we are left a dilemma that to the De- ordered committed I think must my be resolved favor of partment period for a of 21 Corrections client wherein the Court virtue of dou- *14 years. [kidnapping], As to Two it is jeopardy my Court ble cannot now sentence you to the De- ordered committed client on degree murder first since the partment period for a of 21 Corrections has him Court sentenced on the two lesser years. sentencing The on each count shall underlying robbery eases armed and however, concurrently; run for the reasons kidnapping, arising all out of the same just that I aggravating stated as to circumstance. circumstances, the sentences as to Counts all I That’s have as far as the record is consecutively run One and Two shall to the concerned, Your Honor. imposed in sentences cause number THE Mr. COURT: Imbordino. 103047, and as to Two in Counts One and it, reply MR. I IMBORDINO: have no on 110814, you given cause number shall be Your Honor. days you for 377 in credit have served THE I take it this COURT: amounts sentencing. incarceration objection legal as cause from Three, legal ap- As to Count cause proceeding sentencing, with but effect pearing- point finding motion to dismiss this Brown, Judge MR. FELDHACKER: as to guilt judgment guilt by entered Three, I think I Count would like to state extent, your request the Court and to that something legal as to cause on that. motion is denied. Proceed, please. THE COURT: proceed sentencing will with Court record, MR. For the FELDHACKER: as to Three. Court

believe that now that the has en- Court failed, Although attempt conclusively this judgment guilt tered and sentence as to demonstrates that counsel had neither des Two, Counts One and the Court is now client, erted nor forsaken his and that as an prohibited sentencing my from client on adversary reaching everything he was for he Three, Oklahoma, Harris v. Court which is of, think straws. could even We note that 53 L.Ed.2d jeopardy similar claim of double was filed as clearly a 1977 case wherein the case part 7 in Claim the district court as of this felony shows that a conviction for a mur- petition, appeal. on are abandoned We underlying der bars a trial even for felo- not satisfied in Cronic terms that counsel talking nies. What are about of “entirely subject prosecution’s fail[ed] you course is that where have a ease where meaningful testing.” case to adversarial charged robbery someone is with armed 659, 104 at 2047. charged and then also with a murder felo- ny try Gerlaugh argues cannot and convict on his trial them required by all of those counts. the Sixth Amendment to ask the leniency. being preci- This claim court for marked debasement and sentencing sion_ as we must absolutely When we examine This demon- has no merit. offense prej- deficiency for alleged nonstructural regard this strates the defendant’s total lack of udice, clearly amount of thea- turn, that no we see suffering.” for human life or human have made difference trics could the Arizona said its inde- himself Darrick sentenced case. pendent regarding review .of the evidence when, robbery, probation on for while death aggravating circumstances: savage led and relentless mounted and It is obvious in this the evidence to kill his designed attack on Scott Schwartz beyond case takes it far the norm homi- prison. himself from Ger- victim and to save imposition penalty cides. The of the death previous experi- full well from laugh knew here cannot be as an characterized arbi- him if he law awaited with the what ences trary capricious imposition pen- of that a vicious victim behind. When left a live alty. appears As this case to be an exam- accomplish his merciless ob- beating couldn’t ple of the most extreme factual situations own jective, used Mr. Schwartz’s virtually pur- no mitigation, no useful down, run him over and over. One car to pose comparing, would be dis- served help- imagine Gerlaugh’s can the terror citing cussing or homicide cases. other have felt target outnumbered must less and lonely life on that as he scrambled imposition We affirm the of the death with a ramming But Mr. Schwartz road. penalty. either, enough so moving vehicle 89, 90, Gerlaugh, State 135 Ariz. 659 P.2d him Gerlaugh decided to death shred 642, 643 him, weight car’s its placing the tire and alive, and then while Mr. Schwartz was still this, all of Given we are confident that no Mr. man- popping the clutch. How Schwartz mercy plea leniency on Mr. *15 brutality to com- aged survive this is hard behalf, indeed oral on his be- prehend, single-minded but he did. A Ger- half, could have altered what Mr. however, laugh, was not finished. As Mr. Gerlaugh’s age himself set motion. Even life, pleaded locat- Schwartz help adjudged him does not because he was repeatedly plunged it a screwdriver and ed by mature the trial Arizona court. Under until into Mr. Schwartz’s face and neck law, implications age the of the of a defen- courageous him of his hold on life drained are considered in light dant of will One need and his tenacious to survive. history. In discussing criminal whether Ger- length ponder at to realize what fate laugh’s age mitigating was a fac- substantial escaped. Mr. Roche Live awaited had he not tor, Supreme the Arizona Court noted robbery Gerlaugh’s victims were not on previously Petitioner had been convicted of especially place him agenda, those who could robbery at age armed of 17. Four vicinity of the Schwartz murder. case, days peti- before murder behavior, Gerlaugh Against this barbaric participated tioner in a similar armed rob- mitigating muster no substantial cir- could bery, kidnapping, attempted and murder cumstances, and he has been unable to do so with codefendant Matthew Leisure. See notwithstanding dogged ef- to this date Decision, Gerlaugh [Memorandum State v. attorneys. forts of his able The best his 1982], 5309, 10, 1No. CA-CR filed June parents suggest in his could do was forcibly Petitioner Leisure entered elders, days, younger he had been kind to his Gentry gunpoint. car of Tobin at After dogs, and to To review this rodents. location, driving to an isolated desert photographs scenario and examine the victim was forced to lie on his stomach. the screwdriver on Mr. Schwartz’s wounds job, good told Petitioner Leisure to “do $37.00, corpse, all for battered and mutilated pumped four make sure” and Leisure then understanding thorough leaves us with a into the bullets victim’s back. why said, the trial court “The crime and (brackets 461, particularly Ariz. at 698 at 706 the manner of its commission 144 P.2d was shockingly gives well grossly original). Parenthetically, evil bad as this incident

1043 Gerlaugh’s analogy substance to circumstances considerable did not warrant killing game killing people. 695, death.” Id. at 104 S.Ct. at 2069. The made, hard record had been the die had been preju Accordingly, Gerlaugh can show no cast, any and we cannot conceive of rhetori- attorney’s sentencing perfor dice from cal flourish that could have made a differ- mance, injurious and “no substantial and ef record, ence. As we see the counsel’s task anything fect or influence” from counsel did virtually impossible. He aban- Abrahamson, or did not do. Brecht v. 507 client, don the defense of his and he did the 623, at at 1713-14. Even U.S. S.Ct. per- best he could with a horrific case. His presumption without the deference or the guilt phase vigorous formance Strickland, adequate assistance mandated intelligent. mouthpiece If the has no at we cannot U.S. S.Ct. trumpet, blowing all might one’s will not identify any aspect performance of counsel’s tear down walls. proper functioning that “so undermine[s] of the that the trial can adversarial having produced just not be relied on as B. 686, 104 Id. at result.” 2064. Fault Petitioner contends next ing failing plead counsel for for his client’s statutory aggravating “especially factor of an inject mandatory life would element re heinous, cruel, homicide, depraved” used quirement argument, into final which is not support death, sentence of see evidence, and would “narrow the boundaries 13-703(F)(6), § A.R.S. vague is too to survive acceptable argument style too much.” scrutiny Constitution, under the and that it Calderon,

Hendricks v. 70 F.3d given had not adequately narrow — (9th Cir.1995), denied, —, cert. U.S. Supreme construction the Arizona 116 S.Ct. 134 L.Ed.2d 485 As prior to this ease which would enable it to Cronic, Court said in “If there escape this defect. vernacular charge, is no bona fide defense to the profession, this issue has come to be known cannot create one and disserve the in (F)(6) Arizona, as the issue. See Walton by attempting terests of his client a useless 639, 690, 3047, 3076-77, 19, 104 charade.” 466 at 656 n. S.Ct. at (1990) (Blackmun, J., 111 L.Ed.2d 511 dis 2045 n. 19. However, senting). longer it is no novel and authoritatively only by has been settled not *16 Walton, Supreme recently the Court in but Summary Stewart, by in this circuit Woratzeck v. 97 conclusion, (9th Cir.1996): 329, regarding evidentiary the F.3d 333 the Arizona aspect, performance Supreme of counsel’s in adequately connection Court narrowed the (F)(6) Gretzler, presentencing hearing, with his client’s we factor not in in v. 1983 State deficiencies, 42, separate (1983), find no or cumulative Ariz. 1 135 659 P.2d but in earlier worst, assuming prejudice. but even the cases decided to 1978. See State v. Moreover, Mata, 319, given 324, 322-327, the facts and circumstances 185 Ariz. 916 P.2d (1996) (“Gretzler case, 1035, 1040, performance of this counsel’s overall 1039-43 not did new, sentencing proceeding present interpretation the was not deficient of narrower the (F)(6) Fitzharris, factor, Compare Cooper simply digest previ either. v. 586 of the (9th Cir.1978) 1325, factor.”). (observing ously legitimate applications F.2d 1333 of the Thus, “prejudice may sentencing that result from the cumula- because final oc deficiencies”). Gretzler, impact multiple tive But curred after we are satisfied that he again, even if we properly look at it the worst received the benefit of the narrowed (F)(6) possible light, approved we are unable to discover construction of the factor as Strickland, prejudice Gerlaugh. by Supreme Finally, See 466 the Court in Walton. 687, petitioner’s U.S. at 104 S.Ct. at 2064. He is unable the record demonstrates that as adequate finding to show that the absent “errors” of he sertion that there was no (F)(6) complains, plainly aggravating “the sentencer ... would have the factor with is aggravating concluded that the balance of out merit. Both the trial court and the 1044 449, (1985); adequately inquiry. ad- 453 that ends our Supreme Court and

Arizona nothing change There is about the the requirement. this dressed robbery for Ger maximum sentence after use of laugh’s conviction that makes the the C. actually given life sentence offensive aggravating factor As to second arbitrary under the Constitution. pecuniary offense was committed that the 703(F)(5), petitioner § A.R.S. gain, see 13— E. (1) that the evidence adduced at complains (2) support finding, not the that the trial did that neither claims the Petitioner inappro to this factor were the facts relevant nor trial court the Arizona (F)(5) the priately considered to both and statutory properly mitigating considered (3) (F)(6) factors, and that Arizona on his behalf. The circumstances advanced with con “wholly dispensed Supreme Court parsed this assertion district court out independent of this fac ducting an review” points, the evidence to which support alle record does not these tor. The wanting. claim do 'found the to be So we. note as the district court gations. We adequate We find consideration record sentencing following court said the that the intoxicants, cooperation age, of his use of special verdict: in a intent, police, good with the character evi upon the Based recent decisions dence, unequally- the life of his sentence interpreting of Arizona Supreme Court culpable by holding our eodefendant. Guided aggravating circumstance and fact (9th Ricketts, 851, v. F.2d 858 Clark clearly that the evidence at shows Cir.1992), process “[t]he due clause does and did obtain intended obtain require sentencing court exhaus vic- money from the victim as well as the tively analysis mitigat of each document its automobile, finds that tim’s the Court reviewing ing long factor as as a federal con- did commit the offense as defendant court can discern from the record that the expecta- receipt or in the sideration court all the state did indeed consider miti receipt something pecuni- tion defendant,” gating by evidence offered ary value. process is we conclude due satisfied. 308, 314, v. Dugger, also Parker 498 U.S. See finding clearly supported This 731, 735-36, 112 L.Ed.2d 812 adequately confession petitioner’s (1991) (statement by sentencing court that it Moreover, appeal. affirmed reviewed and adequate); mitigating considered all evidence counting not question of double (9th Lewis, 38 F.3d Cir. record, supported by the as observed Jeffers (en banc) 1994) (no due violation court, but is a matter of state law the district it was the trial where evident court cognizable and not this forum. evidence), all cert. considered de nied, D. *17 (1995). L.Ed.2d 570 aggravating rendering A third factor Gerlaugh eligible penalty death is his the F. prior robbery sen conviction for “a imprisonment im of life or death was tence complaint Gerlaugh’s that he was denied a 13-703(F)(1). § A.R.S. posable.” See Ger- “meaningful proportionality review” is belied complaint is that three months laugh’s after Supreme the record. Arizona robbery, in 1978 for the Ari his conviction Gerlaugh’s propor- held sentence legislature penalty reduced the for rob zona imposed tional sentences other bery years. a maximum five cases, 90, v. Gerlaugh, see State 135 Ariz. at 643; permits Supreme law There is no doubt that Arizona 659 P.2d at and the Court has Gerlaugh’s prior robbery convic- that we have to “look the use of held no warrant behind (F)(1) factor, Walton, 656, tion in connection with see that conclusion.” 497 U.S. the Tittle, 343, 3058; v. 339, State 147 Ariz. 710 110 S.Ct. at Martinez-Villareal v. P.2d

1045 (9th Lewis, 1301, Cir.), 80 F.3d 1309 cert. been different had counsel raised — denied, —, 588, forum penalty-phase 117 S.Ct. 136 issues that are raised here. L.Ed.2d

AFFIRMED. G. REINHARDT, Judge, Circuit concurring attempts Petitioner next to elevate dissenting: post-conviction alleged errors Arizona’s re I agree While with the majority that we proceedings lief to federal constitutional sta should affirm Gerlaugh’s conviction, Darrick attempt This fails tus. under Franzen v. agree do not ignore that we can his coun (9th Brinkman, 26, Cir.1989), 877 F.2d any sel’s failure to argument make why as to concerning where we held that errors such a penalty the death imposed— should not be cognizable are not in federal habeas any indeed to closing argument make at all proceedings. during penalty phase Gerlaugh’s capi tal proceeding. Gerlaugh simply did not re III constitutionally ceive the required effective assistance of counsel at the most critical Appeal Counsel’s Performance stage proceeding of the a time when he —at Gerlaugh’s counsel a made deliber most needed that assistance. Under United appeal ate tactical decision on to address Cronic, 648, 104 States v. 466 U.S. those issues that related the conviction (1984), 80 L.Ed.2d 657 required. reversal is eligible that rendered his client for the death Accordingly, I dissent majority’s from the penalty. objective Counsel’s was to render decision affirming the death sentence. his client’s confession inadmissible and there opinion, In its majority makes two a professional to win new trial. His best First, fundamental mistakes. majority assessment the case was that if his client erroneously characterizes counsel’s com- charged, suffered conviction as a sentence ments to the court presentencing of death was almost inevitable. We find no hearing argument as an on Gerlaugh’s be- diagno fault with this assessment. With this half —an regarding whether Ger- mind, sis he did not address issues fact, laugh ought to live or die. counsel pertaining sentencing. He did so with the merely addressing procedural ques- understanding statutory that Arizona law re tion; simply trying he was to call the court’s quired the Arizona Court to make inadequacies attention to presentence independent propriety examination of the report request probation and to legality penalty. of the death The dis office investigation conduct a further before correctly trict court viewed counsel’s decision Thus, report. it submitted its final ma- as a valid tactical strong choice not to dilute jority erroneously concludes that arguments with weak ones. See Jones v. closing argument made a when in Barnes, 745, 751, plain Second, fact he majority did not. (1983) 77 L.Ed.2d 987 (recognizing the incorrectly asserts that we cannot consider importance “winnowing argu out weaker closing argument penalty phase at the Hendricks, appeal”); ments on 70 F.3d at separate stage proceeding pur- (“The pursue strategy Cronic, choice to bad poses of when it is clear that we attorney’s result, makes no comment on an judg majority must. As a fails to rec- exists.”); ognize ment where better choice Miller did not receive effective (9th Keeney, stage 882 F.2d 1434 n. assistance of counsel at “a critical Cir.1989)(defense Cronic, proceeding,” and that counsel does not have a under re- *18 versal of his duty sentence is mandated. constitutional to raise all nonfrivolous issues). Moreover, agree we also with the I. Counsel Failed to Make district court’s view that the Closing Argument review, thorough independent Court’s see 135 Ariz. probability P.2d erases that, There although can be no doubt coun- Gerlaugh’s appeal that the fate of performed would have sel have his functions in part Gerlaugh’s first to interests —an advocate during other the vorable manner or some hearing right argued effec- to live. the state for his When presenteneing —whether death, supposed time ineffectively the came defense to tively for counsel was or —when simply closing he aban- argument argue point for life. Yet at no his con- to make responsibility to his client dialogue and maundering his fused and the doned Gerlaugh thus left was presentencing hearing silent.1 court at the did coun- remained and, (even final during unaided the is any attempt alone and make an sel ineffective case, stage one) critical frequently the the most challenge position government’s to the challenged on capital proceeding. No one his Gerlaugh That that deserved to die. was position government’s behalf the intent purpose neither counsel’s nor his dur- urged No one ought he to be executed. Because, that hearing. out, ing that as it turned youth take his or court to into account the presentencing colloquy the was the col- history or lack criminal intoxication loquy engaged that counsel in that ever relat- extenuating No other circumstances. one or any way to what sentence should ed be to sentence. impose the court a lifetime asked imposed,3 Gerlaugh worse off than if was argued Gerlaugh that did not No one deserve all. present counsel had not been at Had his crime.2 to die there been actual absence of counsel at for (and presentencing hearing at the the sen- strongly they believe Apparently because tencing hearing), Gerlaugh would at least executed, my to be that deserves recognized plead that he needed to pecu- the colleagues majority in the advance himself. argue that counsel to argument requiring liar imposition capital sentence the of a is against transcript presentencing hear- the plead le- requiring him to equivalent ing makes clear that counsel never intended may properly or niency. Whether not one so present closing that argument at hear- capital that a requirement the characterize ing; explain that he never at intended argu- present counsel whatever defendant’s why hearing client did deserve the made the ment can be to counter state’s penalty. death One need read counsel’s death, be

request that he sentenced court, rambling colloquy with the is simply tenet reflects a basic requirement quoted majority, almost in full the adversarial defendant’s —that only point understand that the counsel ever represented before the court. interests be hearing, to make and intended at that obligation of precisely That is defense only subject actually discussed counsel, particularly when the issue time, presentence was his contention that the right to live. client’s report inadequate was further in- By vestigation necessary half-hearted to defend coun- was before the its efforts final report point during presentencing comments was At no did Ger- sel’s submitted. portray closing argu- hearing laugh’s challenge government’s them as a counsel ment, executed, in its to have nor ultimate conclusion desire did he require purport does not counsel to to discuss the factors the Constitution how court life, majority plead required weighed client’s for his reveals consider should misunderstanding of counsel’s or what concerns should influence the fundamental court process. reaching What Ger- its role in the adversarial ultimate decision. He made to, clearly respect laugh and what he no effort to the court with entitled influence have, position lawyer weighing aggravating was a who took a to its task of fac- government’s position against fa- opposite tors circumstances and —a provid- closing argument consider 2. While the could have 1.I do not here whether assistance counsel under Strick- presentencing hearing ed effective either at the made Washington, land v. 2052, following hearing, sentencing, the actual (1984), when he 80 L.Ed.2d conducted counsel did not make an on either investigation questioned the witnesses he occasion. penalty question phase. called That wholly my irrelevant to on which I base the issue note 3. But see infra dissent. *19 making of life-or-death in judgment proceeded present the then analy- Counsel to his sought only report exercise of its discretion. He to sis and criticism the of that had been complain presentence report about the and to submitted and to voice his concerns about the thorough helpful obtain a more and more of sort information that should be included in supplemental report supplemental report for use in connection the Mr. Delci was in the with sentencing process. preparing. the ultimate questioned, Counsel example, whether

Notwithstanding the clear record to the report the initial thorough was as itas should contrary, majority represents the that coun- respect be to his apparent client’s lack arguments sel an made several in effort to remorse. majority While the would have My save colleagues his client’s life. are not us believe that “counsel vigorously took ex- simply correct: there’s there. there The ception presen- to the conclusions” in the majority statements to which the refers did report, if tence even he had that would not not constitute and were not to con- intended change the fact that he was simply address- an argument regarding stitute whether or ing quality the report of the die, and what re- not Gerlaugh should none of them mained to supplemental be done the re- constituted or was intended to constitute is, however, port. The fact that the sort of imposition the of a exception took to report’s counsel the conclu- Although spoke lifetime sentence. counsel premature was that sions were mitigating that factors were absent from the —counsel not, asserts, majority as “argue did the presentence di- report, expressed clearly the rectly ... that client accept responsi- his purpose presentation of his entire not to bility done, for what he had that [Ger- convince the court factors laugh] did factors, demonstrate in his own remorse outweighed aggravating but rath- way.” Counsel never even the court told presentence report inadequately er that the presentence inaccurate; report that the subjects probation treated those and that the instead, he made clear in bumbling way department needed to do work more before purpose commenting was limited properly. sentence could be determined persuading obtaining to the court that fur- very beginning From the of counsel’s com- ther information was desirable: court, ments to the he made it clear that he [T]hose are the comments have at presentencing did not hearing conceive just this time as making as far the Court closing argument. as the time for Immedi- my feelings aware of as to whether or not ately after the conclusion of witness testimo- might want farther information ny, expressed intent comment particular on this case based on the fact specifically report’s shortcomings. on the that, know, that I think reading the time, He stated to the court: “At this Your probation report, it seems to abe terrible Honor, pres- I have no further witnesses to crime in anything that I have never seen ent to the I have some Court. comments this bad before. that I would make.” The court reminded he, experienced Counsel’s admission an counsel that opportunity he would have the capital lawyer, anything had never seen sentencing make comments part this bad before could have been However, hearing. explained counsel then attempt impose convince court to purpose of the remarks intended he Moreover, life sentence. although men- make, stating: “One of the reasons I basic possible mitigating tioned factors were today wanted to make some comments report, from absent counsel did not ask opposed waiting is because I have had an the court to consider these factors deter- opportunity talk with Ed Delci who is mining imposed. to be What he sentence doing presentence report.” After the subject was interested in was a different present court Mr. observed that Delci was entirely might further information courtroom, —what counsel stated: “I’m not sure brought court. before the supplemental what all going to be in the report, couple things majority, arguing [are] there that counsel did client, through report.” clings struck me as I read not abandon his to counsel’s *20 remorse, argue his client’s age argues that invitation to about Gerlaugh’s and to reference “Today have quickly begged In- off: I don’t mitigating factor. but youth as he raised say Court deed, anything going have that that I am to to the majority would us believe the Op. implication of coun- age.” his client’s at about that.” The natural “emphasized counsel speak that Ger- re- subject can be no doubt to on the -. There sel’s refusal if argu- morse, attorney closing made a rest laugh’s implication had the natural like ment, part remarks, in significant saving relied was his he would have his was that he miti- age important is an day, on client’s that was sav- arguments his for another he —it happened not But that’s what gating sentencing hearing factor. when ing them for the Instead, simply pointed to counsel his here. report would have been supplemental the entirely did so for an age, he client’s the prepared parties to and submitted argue purpose. Counsel did different the court. youth mitigating fac- Gerlaugh’s was that Gerlaugh’s colloquy The between entire tor; pointed age was he out that the rather presen- the trial the counsel and court factor in order only mitigating to obvious tencing hearing abundantly clear makes it report’s inadequacy the demonstrate —be- present to his that counsel did not intend report the age cause was the factor closing to until he had argument the court discussing noted in As counsel identified. report supplemental in hand. It is there- the presentence report: the that hear- astonishing sentencing fore at the And, superficial me a little it seems to supplemental report finally ing, after the the just say I see facts of this to that filed, completed and counsel failed still know, obviously, large one case.... We present any argument on his closing to that circumstance Mr. mitigating following the client’s behalf. The reflects take age. has his The Court can that entirety pre- comments of defense counsel’s consideration, I but think that is the into ceding sentencing: one, I young have a only obvious [Counsel], you anything COURT: do have And, young the time was at client. say? to But, really this act. I the commission Honor, I Your have reviewed COUNSEL: and, nothing report], again, [in the I found supple- report and presentence both more, if the Court wanted don’t know report, all mental and I think contain point where I me to to disturbed this should at matters consider myself That to address to it. I wanted time, nothing further to have something should be more be- think there say. fore this Court. Incredibly, attempt counsel made no whatso- referring report clearly was Counsel challenge apparent presumption to ever be, not, but was in it. He and what should own) part everyone’s (possibly on even trying persuade was to the court that sentence; a death deserved preclude a Gerlaugh’s youth should death explain cir- nor did he what the sentence, urging to nor was he the court take (and several). cumstances were there were youth into account in the sentenc- client’s Rather, point proceed- crucial saying ing simply decision. He absolutely ing, nothing said on counsel than about there be more should client’s behalf. report. mitigating factors in the sum, hearing, suggested presentencing that the “some- When counsel thing report psychi- to what further should be counsel chose discuss more” evaluation, explained supplemental the court to him work to be done on the atric needed happy presentence report, to that’s At the anything that “I would listen to all. say your opinions hearing, nothing whatso- regarding sentencing he said have result, closing expressions you[ certainly remorse want ever. ] As Gerlaugh during the Court of.” Counsel made a ever made on behalf of inform the attempt respond penalty phase proceeding.4 the court’s stuttering sentence, began impose Gerlaugh's 4. During hearing, counsel sentencing alter court ably majority’s conclusion exclusively decided focus on the *21 closing argu- obviously not during losing abandon issues Gerlaugh’s related to obviously conviction, by underlying its view that particularly ap- ment is influenced as the any closing pellate required would reweigh effort at a statement have court was to the effect, majority argues In aggravating been useless. the and ir- circumstances respective client that counsel did desert his because of Gerlaugh actually whether Thus, argument there was no to be made on the raised the issue. unlike deficient most counsel, strongly disagree, Ghent’s behalf. both a counsel had second any Indeed, practically legally. In case appeal, and there clear chance. on validity the arguments are to be sides. In the made on both of sentence was the issue that the significant specifically required this case there were several miti- law to the court consid- gating Nevertheless, urged factors counsel could have er. counsel continued to re- upon deciding as the court reasons for not to main making any silent —to refrain from ar- impose punishment. ultimate gument. court, the He could inAs the trial counsel did explained why have these factors warranted not act as an advocate for his on client the judicial issue, the in sentencing exercise of discretion favor of persisted instead the Instead, sparing Gerlaugh’s life. he ques- said belief he had no to responsibility York, nothing. Herring sentencing See also v. New judge’s tion the determination to 853, 860, 2550, 2554, impose punishment U.S. 95 S.Ct. 45 L.Ed.2d the ultimate Gerlaugh. (1975) (discussed H.A.). so, By Part doing again accepted he a sen- death infra tence for his client without engaging the Balancing ag- the mitigating and factors — process again adversarial and assured that judicial gravating the exercise —involves put unless, his client would be to death — judgment. discretion and When such balanc- course, enough a later court was careful its ing required, is it is duty the defense analysis enough applying and committed to argue why counsel to the balance should be properly law to recognize the struck in his client’s favor. No matter how obligations abandoned his as counsel. great against the seem odds to be win- ning argument, the must make counsel the II. Counsel’s Silence Constitutes best case he can. It is not counsel’s role to a Cronic Violation advocate, judge any act as as as more well than it is district the court’s or this court’s A. well, say, role to “Oh his client would have closing argu- Counsel’s failure to amake anyway. lost argument, He had a bad so penalty phase ment of the trial any argu-

there’s no need for him to make representation by denied counsel at ment at all—no need to advocate —no need stage sentencing proceeding a critical of the by representation That counsel.” kind of princi- in violation basic of the constitutional reasoning squarely contrary to the elemen- Cronic, ples set forth States v. United tary precepts adversary system. of the 80 L.Ed.2d 657 That necessarily counsel misunderstood nature Such a violation calls into importance reliability of his role in adversarial question proceeding; of the consequences presume and the extreme under Cronic must we that Ger- abandoning flow from at a laugh prejudice one’s client critical as a and are suffered result stage proceeding required is further demon- his death Ac- reverse sentence. by however, cording majority, strated his actions after the death sen- counsel’s tence imposed. appeal, by On counsel once his client failing abandonment of make again make argument closing argument failed to that Ger- at the can- penalty phase laugh should not have been sentenced to itself establish Cronic violation be- strategic “appropriate segregate death. This could not have cause is not presentation decision counsel. He not reason- oral could counsel’s on behalf weak, frivolous, interrupted judge immediately correctly raised a indeed off. brushed jeopardy argument, sentencing double proceed- Herring, sentencing stage of Court made client at the right the Sixth Amendment clear measures taken on his the other ing from encompasses right de My colleagues’ posi- Op. at 1036. behalf.” closing summation, present a fense counsel contrary directly both to established tion recognizing extraordinary signifi thus require- Sixth Amendment law to basic closing of counsel’s cance viewing the second half Instead of ments. process. If a defendant has been adversarial inseparable anas Gerlaugh’s bifurcated opportunity closing denied make Cronic, purposes of whole for the conviction argument, his criminal cannot *22 doing, requires the law upon insists majority stand, argu regardless of an whether such argument as a closing critical us to treat persuading ment have succeeded in would in It proceeding and of itself. stage of the position. of the the factfinder defendant’s closing the of not matter that absence does “ right ‘The of a Id. constitutional defendant phase the penalty at of argument occurred necessarily through in to be heard counsel guilt/inno- opposed the proceeding the as to make right cludes his to have his counsel a op- phases provide the phase. cence Both proper on the evidence and the argument, closing closing portunity for favor, simple, applicable law in his however times; argument is both counsel’s essential clear, unimpeached, the evi and conclusive during that of his client critical abandonment 860, may at dence seem.’” Id. 95 S.Ct. at a stage phase constitutes violation of either Maryland, (quoting Yopps v. 228 2554 Md. of Cronic. (1962)) 204, 178 879, (emphasis 881 A.2d add ed). in v. States plainly As we stated United (9th Cir.1991),

Swanson, 1070, 943 1074 F.2d The Swanson decision is likewise consis- during of his client counsel’s abandonment heightened need tent with the for reliable “a closing argument breakdown our causes proceedings capital every per- cases. Not system justice ... com- of adversarial of son who has been convicted murder de- exception pels application of the Cronic to principal an of serves be executed. One the requirement.” If [prejudice] purposes capital identify the of a trial is to Strickland those effectively without the should be to death for their a is benefit who sentenced defendant crimes, a those not. during closing argument, funda- who should See of counsel Carolina, 280, v. North Woodson process in the adversarial mental breakdown 2978, 2991-92, 96 49 S.Ct. L.Ed.2d 944 simply it does not matter has occurred and (1976) (plurality opinion). There is no more what have done to that counsel important equity hearing law or than the point what effect or lack of effect the phase capital penalty of a trial. In a closing argu- that a reviewing court thinks arbitrariness, already plagued by right the on might ment the outcome of penalty- counsel ensures that the results of proceeding. phase proceedings possible. are reliable as attorney’s conclusion that an Swanson’s of The determination who should live and during closing of his client ar- abandonment who should is at of an die arrived means gument a constitutes fundamental error hearing govern- adversarial which the requires keeping in and is of itself reversal position that ment’s the defendant should be requirement fact that the of adver- put sentenced to death is the test advocacy sarial extends to counsel’s Closing argument is defense counsel. evidence, presentation exculpatory of part part that proceeding, essential of at presentation closing argu- also of a vigorous advocacy qua non. which sine York, Herring ment. New 422 U.S. very adversary system of premise “The our 2550, 2553-54, L.Ed.2d justice partisan advocacy of criminal is that concluded, theAs Swanson court promote best on both sides of case will obligation trial, there is a constitutional on defense objective.... ultimate In a criminal basically “to function as Government’s ad- is in end factfinding versary” argument. process, aspect advocacy at the time of such could be Swanson, important opportunity finally than the 943 F.2d at 1074. more each to marshal the evidence for side sel’s abandonment before aat critical judgment.” stage capital submission of the case to Her- trial.5 ring, 422 at at Closing argument is one of the most im- portant stages in a criminal It trial. is the regardless Herring makes clear that parties moment which the tie all of the presented fact that counsel evidence or made together, evidence significance illuminate the objections legal proceeding, ab- factfinder, of the evidence to the argue closing argument requires sence of a in itself why supports respective evidence their majority’s attempt rely reversal. The positions. It is parties the time which the presentation or the witnesses advance- emphasize certain facts explain away objections legal simply ment of irrele- is thus It opportunity parties others. is an for the vant. The flaw that renders sen- things might remind factfinder of tencing unconstitutional is the failure of forgotten along have been way. For a provide representation counsel to at a critical trial, capital in a defendant “the last stage proceeding closing argument. — persuade clear chance to the trier of fact” requires That alone failure reversal under *23 that he should not be Herring, executed. Cronic,. regardless may of what else 422 U.S. 95 S.Ct. at 2555. And it is transpired. part a less of a trial’s basic framework if process simple, The it adversarial presented the evidence is in the context of a works when has two sides. But when jury bench trial a instead of trial. See id. at only there one argument, side to the 863 n. 95 (flatly S.Ct. 2556 n. 15 truthfinding purpose trial breaks down rejecting the contention that is insuffi- “there presumptively and the results are unreliable. justification” right cient make a trials,

closing in bench and sug- gesting may B. summations be even more factfinder). important only if there is one majority inability The carries its to distin Additionally, arguments final further one guish from Cronic Strickland error to its significant of the most values in a criminal logical applies conclusion. It er harmless trial, process the adversarial Without itself. performance. ror test to counsel’s Not question, process the adversarial is the hall- analysis is this in harmless error conflict with system justice. attorney’s mark our of of An Sivanson, Cronic and but it is also at odds of stage desertion his client at a critical of proposition the more basic that certain proceeding premise very undermines kinds of error are so fundamental that we of this the issues the evi- —that presume prejudice. must apparent It is sharpened by dence will be clarified and an attorney’s of abandonment his client at presentations vigorous from both sides. critical stage proceeding constitutes When a defendant this mo- is abandoned at structural error as v. defined Arizona ment, was, Gerlaugh there not been has Fulminante, 279, 310, 49 U.S. an simply presentation error in the of evi- (1991). 1246, 1265, 113 an L.Ed.2d 302 Such dence: there has alteration error not alters the basic framework very framework of trial. When trial, a criminal it also undermines values trial, capital in a alteration occurs the unac- system jus that are fundamental our ceptable consequences and unconstitutional Olano, tice. See F.3d United States v. egregious. are at their most (9th Cir.1995) J., (Reinhardt, 1207-10 dissenting) (elaborating on the nature — errors), denied, structural cert. Because was denied the benefit -, stage capital 136 L.Ed.2d 221 at a critical Thus, majority seriously presume required has because erred we are subjecting analysis resulting prejudice, to harmless error coun- I do not reach the other majority leagues suggest makes this error it mis- do not because Cronic error takenly performance treats counsel's subjected as Strick- to a error harmless test. Wisely, my land rather than Cronic col- error. simply from the dissent

sentencing issues. penalty on the the death

imposition of effective assis- lacked

ground that stage at a critical

tance of counsel

proceeding. ENVIRONMENTAL

In re NATIONAL CORP., a California

WASTE

corporation, Debtor. ENVIRONMENTAL WASTE

NATIONAL corporation,

CORP., a California

Appellant, RIVERSIDE, political

CITY OF *24 of the State

subdivision

California, Appellee.

In re NATIONAL ENVIRONMENTAL CORP., a California

WASTE

corporation, Debtor. RIVERSIDE, political

CITY OF State

subdivision

California, Appellant,

NATIONAL ENVIRONMENTAL WASTE corporation,

CORP., a California

Appellee. 96-55825, 96-55852.

Nos. Appeals, Court of

United States

Ninth Circuit.

Argued and Submitted Oct. 1997. Nov.

Decided