Lead Opinion
Partial Concurrence and Partial Dissent by Chief Judge THOMAS;
Partial Concurrence and Partial Dissent by Judge CHRISTEN
OPINION
Petitioner Eric Owen Mann lured Richard Alberts and Ramon Bazurto to his house in 1989 with a promise to sell them cocaine for about $20,000. Instead, he took the money and shot both men to death. Mann was eventually arrested and tried in Arizona state court in 1994. A jury found him guilty on two counts of first-degree murder, and the trial judge sentenced him to death, noting his long criminal history and his apparent lack of remorse for the killings. Following the affirmance of his convictions and sentence by the Arizona Supreme Court, Mann filed a petition for post-conviction relief in state court in 2000 asserting, among other claims, that he had received ineffective assistance of counsel at trial and sentencing. That petition was assigned to the same judge who had presided over Mann’s trial and imposed the capital sentence upon him a few years before. The judge denied in full Mann’s petition for post-conviction relief, and the Arizona Supreme Court thereafter denied Mann’s petition for review. Mann then filed a petition for habeas corpus under 28 U.S.C. § 2254 in federal district court. That petition was denied, and Mann appeals.
Of primary importance here is Mann’s argument that the state post-conviction court applied the wrong standard to his claim of ineffective assistance of counsel at sentencing, in violation of Supreme Court precedent in Strickland v. Washington,
Here, fairminded jurists could conclude that the state court’s review of Mann’s claim of ineffective assistance of counsel comported with Strickland. Applying AEDPA deference to Mann’s claims, we conclude that the state post-conviction court’s denial of post-conviction relief was not contrary to, or an unreasonable application of, federal law. We therefore affirm the district court and deny Mann’s petition for habeas relief.
I. Background
A. The murders
In the fall of 1989, a few weeks before Thanksgiving, Mann arranged to sell Richard Alberts a kilogram of cocaine in exchange for about $20,000. Mann never intended to provide Alberts with the drugs. Instead, he planned to hand Alberts a shoebox full of newspaper and take his money in exchange. He knew he would have to kill Alberts after this transaction took place.
On the evening of Thanksgiving Day, Alberts arrived at Mann’s house to complete the sale, accompanied by another man, Ramon Bazurto. Mann’s girlfriend, Karen Miller, was also at the house to provide Mann with backup. Miller testified that when Mann saw Alberts had brought along someone else, he became upset, but after a brief hesitation decided he would nevertheless go through with his plan to rip Alberts off. The three men and Miller went to Mann’s bedroom, where Alberts handed Mann the money and Mann gave Alberts the newspaper-filled shoebox. When Alberts lifted the top of the box, Mann shot him and then Bazurto.
Alberts died almost instantly from a shot through the heart. Bazurto took longer to die. He fell onto his back and lay on the ground, attempting to move his hand towards the pistol he was carrying in his waistband. According to Miller’s testimony, Mann stood over Bazurto’s prone body and described what was happening as Ba-zurto lost motor control and died. Miller testified that Bazurto continued to move for three to five minutes after being shot.
Mann then called a friend, Carlos Alejandro, to help him dispose of the two bodies. They dumped the bodies on the side of a gravel road. The next day, Mann and Miller cleaned the apartment and patched the walls where the bullets that had killed Alberts and Bazurto had entered. Mann gave Alberts’s car to a friend and disposed of his guns and the recovered bullets. When police later questioned Mann as to the whereabouts of Alberts and Bazurto, Mann responded that the two men had come to his house on the evening of the murders to conduct a drug deal, but had left after Mann and Alberts failed to agree on a price for the drugs.
B. Trial
Mann’s jury trial took place over five days in the . Superior Court of Pima County, Arizona. Judge John F. Kelly presided. David Sherman, a criminal defense attorney in private practice, was appointed as Mann’s counsel. Sherman pursued the theory that Mann had acted in self-defense.
The day before trial commenced, Sherman told the judge that he would not be calling any witnesses “except for Mr. Mann.” Sherman successfully persuaded the trial court that, should Mann testify, his previous conviction for burglary would be excluded from evidence and any mention of his previous conviction for felony possession of a firearm would be limited to the fact that he had been convicted of a felony.
At trial, the state presented testimony from six witnesses, including Miller and Alejandro, both of whom had been granted immunity from prosecution for their roles in the crime. Miller and Alejandro testified that the murders had been premeditated. Mann ultimately did not testify, and Sherman did not call any witnesses of his own, instead attempting to discredit the state’s witnesses through cross-examination. The jury found Mann guilty of two counts of first-degree murder on November 1, 1994.
Two weeks later, the court granted Sherman’s request that Mann undergo psychological evaluation prior to sentencing. Sherman recommended that the court appoint Dr. Todd Flynn, a psychologist with the court psychological clinic. With the consent of the attorney for the state, the judge agreed to appoint Dr. Flynn to perform an evaluation.
Dr. Flynn diagnosed Mann with alcohol abuse or dependence, polysubstance abuse or dependence, and antisocial personality disorder. He also noted that Mann had scored highly for “acting out” on the Minnesota Multiphasic Personality Inventory-2 scale, and made the following observation:
As a group, people with acting out as a primary psychological defense tend to be emotionally shallow, deficient in their capacity for empathy, poor at frustration tolerance, unwilling or unable to delay gratification, and poor at anticipating the consequences of future actions. When combined with a history of victimization of others, this group becomes the worst of offenders because there is little sense of conscience or inhibition to stop the criminal lifestyle. Those who act out intensively and in a criminal manner may also qualify for the designation of Psychopath ....
The report concluded, “It is more probable than not that Mr. Mann fits this designation.”
The state’s presentence report concluded that three aggravating factors were present in the crime: it was committed for pecuniary gain, there were two victims, and Bazurto’s murder was committed “in an especially heinous, cruel or depraved manner.” Sherman argued for ten mitigating factors: Mann’s positive relationship with his daughters, his positive influence on his mother, his unstable and abusive family background, his poor educational experience, his history of substance abuse, his remorse, his cooperation with authorities, his non-violent history, his good behavior while incarcerated, and the disparity between his sentence and Miller and Alejandro’s sentences.
Judge Kelly found that the state had demonstrated all three of the aggravating circumstances they had identified: (1) the crime was committed for pecuniary gain, (2) there were two victims, and (3) Bazur-to’s murder was committed “in an especially heinous, cruel or depraved manner.”
As for mitigating factors, he found that Mann had a positive relationship with his daughters and his mother, an abusive and unstable family background, a poor educational experience, a history of substance abuse, good conduct while incarcerated, and recent stable employment. The judge declined to find that Mann had cooperated with the authorities, that he had a nonviolent history, or that a capital sentence would be disproportionate to sentences imposed on Miller and Alejandro.
The judge concluded that Mann, “by his actions for a period of four years ... showed no indication of any remorse, particularly his actions as introduced at trial after the murders.” The court noted that in his autobiography Mann described getting into a car accident in which two people died, but observed that “he indicates no remorse in that situation.” Ultimately, the judge concluded: “[T]he defendant is not capable of remorse. The psychological evaluation is that he has an anti-social personality disorder and that he is a psychopath. Basically, that he has no conscience. The Court believes that his expression[s] of remorse are not genuine.” The judge sentenced Mann to death on both counts of murder.
Mann appealed to the Arizona Supreme Court, which affirmed. State v. Mann,
C. Post-conviction relief proceedings
Mann filed for post-conviction relief under Rule 32 of the Arizona Code of Criminal Procedure. He alleged, among other claims, that he had been denied effective representation of counsel at trial and sentencing and that newly discovered evidence probably would have changed the verdict at the trial or sentencing. Among the arguments in his post-conviction brief, Mann claimed that Sherman “did little mitigation investigation or preparation for the mitigation hearing.” The brief described Mann’s 1985 automobile accident in great detail, including his remorse at the deaths of his two passengers, the injuries to his leg and head, and the changes in his personality and circumstances that resulted.
Mann also filed two additional expert reports: one from Dr. Richard Hinton, a clinical psychologist, and one from Dr. James Comer, a clinical neuropsychologist. Dr. Hinton’s report concluded:
Despite Mr. Mann’s extremely difficult childhood and his relatively long pedigree as a violator of the law, it does appear that his functioning changed dramatically following the automobile accident. At that time he experienced a severe injury to his leg which caused him to be unable to work and which resulted in mounting debt. It also appears likely that he was tormented by a sense of guilt that he was somewhat responsible for the death of the two passengers in his car. From that time forward he began to behave much more aggressively and to use cocaine much more regularly.
Dr. Comer’s report concluded that “Mann appears to have experienced a T[ramuatic] B[rain] I[njury] leading to subtle though lasting cognitive deficits and other symptoms of post-concussional syndrome.”
The post-conviction proceedings were assigned to Judge Kelly, the same judge who had presided over Mann’s trial and sentencing. Judge Kelly held several evi-dentiary hearings, in which he heard testimony from Miller,
Dr. Comer testified that some of Mann’s test results suggested “that he may have experienced a head injury, from which he recovered rather well in most respects, but which had left [him] with some residual, subtle cognitive deficits.” Dr. Comer noted that it was the “typical course of events” for the effects of a brain injury to be more severe closer in time to the accident, and that behavioral changes stemming from a brain injury generally “take the form of increased aggression, sexual indiscretions, poor ability to monitor one’s behavior, difficulty in appreciating the effect of one’s behavior on other individuals, increased irritability, agitation at times, [and increased] egocentrieity.” He also noted that the records that he reviewed “certainly indicated that there was a significant behavioral and emotional change, perhaps some change in personality as well” that occurred after the 1985 accident. He clarified that any one of the test results “could easily have been produced by other factors as well,” but that the significant majority of the test results “fell into that cluster of tests that are known to be sensitive to subtle, longlasting effects” from brain damage.
Judge Kelly responded to Dr. Comer’s testimony by commenting that it was “not clear how such a brain injury could have a role” in Mann’s crimes, as they had been planned out in advance without “any indication ... that the murders were committed out of anger or irritability.” Dr. Comer replied that he was not stating a finding that Mann’s head injury caused him to commit the crimes but rather that “some of the behavior we see postconcussion could produce the disinhibitory aggression” that followed Mann’s accident.
A three-judge panel of this court unanimously affirmed the denial of habeas relief for ineffective assistance of counsel at trial, but, over a dissent, reversed the denial of habeas relief for ineffective assistance of counsel at sentencing. Mann v. Ryan,
II. Legal Standards
A. Antiterrorism and Effective Death Penalty Act
Because Mann filed this petition for habeas corpus after April 24, 1996, AEDPA applies to his claims. See Lindh v. Murphy,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). We review the last reasoned state court decision according to this deferential standard. Towery v. Ryan,
An adjudication is “contrary to” clearly established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
A state court’s adjudication is unreasonable only if the federal habeas court
B. Ineffective assistance of counsel
Mann’s claims are based on the alleged violation of his Sixth and Fourteenth Amendment rights to effective assistance of counsel during both the trial and penalty phases of his state court proceedings. Ineffective assistance of counsel claims are evaluated according to the familiar standard set forth in Strickland. To receive relief under this standard, “[flirst, the defendant must show that counsel’s performance was deficient.”
The proper standard for attorney performance under the first prong of the Strickland test is “that of reasonably effective assistance.” Id. “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88,
The second prong of the Strickland test requires that the defendant show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,
III. Ineffective Assistance of Counsel at Trial
Mann first argues that he received ineffective assistance of counsel during the trial phase of his proceedings. This argument is based on the alleged negligence of Mann’s counsel, Sherman, in (1) failing to recommend that Mann testify at trial, and (2) breaking an “implicit” promise to the jury that Mann would testify in his own defense. Because the Arizona Supreme Court summarily denied the petition for review of this claim, we look through that decision to the decision of the state post-conviction court. See Towery,
A. Sherman’s recommendation that Mann not testify at trial
Mann and Sherman presented conflicting accounts of their relationship to the state post-conviction court. Sherman testified that Mann told him “early on in th[e] case” that the murders had been premeditated. Despite this knowledge, Sherman advised Mann that a self-defense theory “would be the best way to go.” Sherman said he gave Mann the option to testify at trial that he had acted in self-defense, but told Mann he “would have to withdraw as his attorney” if Mann did so because Sherman knew this testimony would be false. In a letter to Mann approximately one month before trial, Sherman laid out conflicting considerations for Mann to weigh.
Mann, in contrast, testified that he told Sherman from the beginning that he had killed Alberts and Bazurto in self-defense. Mann said that he and Sherman “briefly” discussed the possibility that Mann would testify at trial, but that Sherman told Mann that “it would be bad” for him to testify because it would open the door to questions about his prior conviction for felony possession of a weapon. Mann said that he took his attorney’s advice and did not testify.
The state post-conviction court concluded that Sherman was more credible than Mann and accepted Sherman’s version of the facts as the truth.
Our review of the state habeas court’s credibility determinations is highly deferential. Marshall v. Lonberger,
Mann points to some possible inconsistencies in Sherman’s story: Sherman did not mention in his letter that he would withdraw from representation if Mann testified, and he continued to prepare for the possibility that Mann might testify up until the day before trial. Sherman had plausible explanations, however. Sherman said he never told Mann he couldn’t testify, but rather that “if he cho[s]e to do it against my recommendation, I would have to withdraw as his attorney and he could get another attorney to do that, but I wasn’t going to put him on the stand.” As for the letter, Sherman testified that he was “finessing the situation” and did not want to put the potential perjury in writing. Given these considerations, and Mann’s obvious motivation to lie, it is impossible to conclude that the state court’s findings as to Mann and Sherman’s relative credibility “lacked even ‘fair[] support’ in the record.” Id. at 432,
Once the state court had found that Sherman was a more credible witness than Mann, it was effectively bound by Supreme Court precedent to conclude that Sherman’s decision to discourage Mann from testifying did not constitute ineffective assistance of counsel. Counsel’s duty to advocate for his client is “[p]lainly ... limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” Nix v. Whiteside,
B. Testimony promised in opening statement
Mann’s claim that Sherman broke an implicit promise to the jury that Mann
But Sherman did not promise the jury that Mann would testify. His opening statement detailed the alternative version of evénts that formed the basis for his defense strategy: he told the jury that Mann had cocaine he intended to sell to Alberts, and that as Mann was handing over the drugs to Alberts, Bazurto “did something that made [Mann] think he was about to be the victim of a drug rip-off.” In reaction, Mann “fired at both people and killed them both because he felt like he was forced to do so.” Sherman then said, “Now, look at what the facts are. After that we’ll see [Mann] didn’t plan this.” He told the jury to anticipate the testimony of Miller and Alejandro, which he described as “the only evidence that the [state will] have of premeditation,” and argued that “[w]hen you compare that to the whole story, it doesn’t make any sense that if it was planned it would be done this way.”
At trial, Sherman successfully elicited testimony from Miller and Alejandro that was inconsistent with the prosecution’s theory that the murders were premeditated. For instance, he noted that Miller had testified to standing directly behind Bazur-to when he was killed, which she admitted was “awfully close to what the line of fire was going to be” for someone who allegedly knew Bazurto was about to be shot. Miller also testified that there had been no plan to dispose of the bodies. Alejandro testified that the first time he heard anything about Mann’s plan was when Mann showed up at his house the night of the crime asking for help. He described Mann as having been “[i]n desperate need,” and said that the first thing Mann said to him that night was, “I did it. I had no choice. I had to do it.” In other words, Sherman’s opening argument “merely summarized evidence that was later produced from which a jury could be left with a reasonable doubt” about whether the crimes were premeditated. McAleese,
IV. Ineffective Assistance of Counsel at Sentencing
Mann also argues that the state court erred in declining to grant habeas relief based on his claim that he had received ineffective assistance of counsel at the sentencing stage of his proceedings. His argument before the state post-conviction court focused on two alleged failings: (1) failure to present reasonably available mitigation evidence at sentencing, and (2) failure to seek adequate assistance in evaluating Mann’s mental health. The last reasoned state court decision on this issue came from the post-conviction court, so that is the decision we review. See Towery,
On appeal, Mann argues that the state post-conviction court’s analysis of prejudice was contrary to clearly established federal law. He also argues that, on the merits, Sherman’s performance caused Mann prejudice. We address these arguments in order because our evaluation of the first determines the standard of review to be applied to the second. First, we assess whether the state court’s decision was contrary to clearly established federal law as determined by the Supreme Court. Second, we assess whether Sherman’s performance caused Mann prejudice. If we conclude at the first step that the state court misapplied clearly established federal law, then our review at the second step is de novo. See Williams,
A. Applicability of AEDPA
Mann argues that we should review his Strickland claim de novo because the state post-conviction court made three different legal decisions that were contrary to or an unreasonable application of clearly established federal law. One, he argues that the state post-conviction court applied the wrong standard in assessing prejudice under Strickland. Two, he argues that the state court improperly excluded the mitigating evidence presented during post-conviction proceedings because Mann had not demonstrated a causal link between the evidence and the crime. Three, he argues that the court failed to re-weigh the evidence in aggravation against the totality of the mitigation evidence, including evidence introduced during the sentencing and during post-conviction proceedings. None of these three allegations gives us a basis to conclude that AEDPA does not apply to Mann’s claims.
i. Strickland’s prejudice standard
The common standard for a motion for a new trial based on newly discovered evidence requires a defendant to “show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland,
The claims presented by Mann in the state post-conviction proceedings at issue here included an argument that new mitigation evidence related to the 1985 accident merited a new sentencing. Those claims were identified as “Issues Three and Four.”
As to Issues Three and Four, he found: The record shows that Defendant provided this Court with evidence of the accident and its effects in the form of an autobiography he presented to show mitigation. Nonetheless, additional evidence, particularly that set forth in psychological reports, was submitted as part of this Petition. The Court finds, however, that nothing presented would have changed the verdict or the sentence imposed. The Court finds that Defendant has not proven the existence of a causal connection between the accident and its effects and the murders. The record shows, for example, that Defendant dealt drugs and used guns against others before and after the accident; that he did not misperceive a threat and overreact, but, rather, carefully planned to kill Alberts, then “made a choice, after a period of thought and said, ‘Well, I’ve got to do it,’ apparently meaning that to go through .with the plan he would also have to murder Bazurto.” Defendant committed these murders for pecuniary gain, not for reasons traceable to his 1985 accident. Accordingly, the claims are denied.
(emphasis added) (citation omitted).
Meanwhile, as to Issue Seven, Judge Kelly found:
To succeed on this claim and on the others that follow below, Defendant must show that: (1) counsel’s performance was deficient, as defined by prevailing professional norms; and (2) the deficient performance resulted in prejudice to the defense. State v. Nash,143 Ariz. 392 ,694 P.2d 222 (1985). Here, Defendant has failed to show prejudice. Some of the evidence he accuses Sherman of not presenting, e.g., testimony from family members,-was in fact presented to this Court at sentencing. Additional evidence that pertains to the 1985 accident and its effects is discussed under “Issues Three and Four” above, where this Court found that it would not have changed the sentence imposed. For that reason, Defendant was not prejudiced by counsel’s performance and the claim is denied.
Mann argues that the state post-conviction court’s conclusion that the new evidence “would not have changed the sentence imposed,” combined with the court’s ' reference to the analysis for “Issues Three and Four,” suggests that it applied the wrong standard in analyzing Mann’s ineffective assistance of counsel claim. Rather than finding that there was no reasonable probability that the new evidence would have changed the sentence imposed, Mann argues, the post-conviction court imported the standard from its analysis of the motion for a new trial into its analysis of the ineffective assistance of counsel claim and concluded only that the new evidence more
Had the state post-conviction court applied the more-likely-than-not standard to analyze Mann’s ineffective assistance of counsel claims, its opinion would have been contrary to clearly established federal law under AEDPA. The Supreme Court considered and explicitly rejected the more-likely-than-not standard in Strickland.
Reading the opinion as a whole, the more logical inference here is that the standard used by the state post-conviction court was the correct reasonable probability standard. While the court did not clearly state the standard it applied, either for the newly discovered evidence claim or for the ineffective assistance of counsel claim, it indicated that the ineffective assistance of counsel claim was controlled by State v. Nash,
Judge Kelly also made various factual findings that suggested he was deeply skeptical that evidence about the accident had any significant impact on Mann’s mitigation profile. Most importantly, he noted that Mann dealt drugs and used guns prior to the accident, premeditated both murders, and committed them for pecuniary gain. Taken in context, the judge’s discussion of Issues Three, Four, and Seven suggests that he knew the proper standard for both the new evidence claim and the ineffective assistance of counsel claim, but concluded that the new evidence made at most a minimal difference, such that the standard applied would have no effect on the outcome of either claim. This inference is particularly strong because Judge Kelly was the same judge who had handed down Mann’s initial sentence, giving him particular insight into how the additional evidence would, or would not, have changed Mann’s mitigation profile. See Schriro v. Landrigan,
At worst, the state court opinion is ambiguous. But, as we have noted in the past, “[u]nder AEDPA, we must do more than find the statement ambiguous.” Lopez v. Schriro,
ii. Causal nexus
Mann also argues that the state post-conviction court violated clearly established federal law when it improperly refused to consider evidence about Mann’s car accident because he had “not proven the existence of a causal connection between the [1985 car] accident and its effects and the murders.” This argument relies on Eddings v. Oklahoma, in which the Supreme Court held that the “Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
Our court has concluded that the law in Arizona at the time of Mann’s post-conviction proceedings, in spite of this clear command, required that defendants demonstrate “actual causation” linking their alleged mitigating circumstances with the crime for which they were being sentenced. McKinney v. Ryan,
Mann does not and cannot argue here that the state post-conviction court violated clearly established federal law by applying Arizona’s unconstitutional causal nexus test. Mann did not present a post-conviction Eddings claim before the Arizona Supreme Court, so we have no jurisdiction to grant relief on that issue. See Rose v. Lundy,
This argument fails to acknowledge that Judge Kelly’s comment about the lack of a causal connection between the accident and the murders was directly responsive to the evidence Mann presented before the state post-conviction court. Dr. Hinton’s
There is no question that this evidence, if presented to the Court in mitigation, could have resulted in a sentence other than death. As described by Karen Miller, the killing of Bazurto and Alberts was of a piece with the change that occurred in Petitioner as a result of the accident. It was a crime of power and money, and the clear result of the fundamental personality and character changes that occurred in Eric Mann as a result of the accident.
The dissent notes, at 44, that Mann argued at the post-conviction hearing that the new evidence as to the effects of the accident would have suggested a mitigating reason for some of his behavior and, “would have provided some freestanding mitigation of itself.” As we have noted in the past, however, courts generally find explanatory mitigation evidence more convincing than humanizing mitigation evidence. See Allen v. Woodford,
In addition, it is clear elsewhere in the record that Judge Kelly did not exclude evidence from his mitigation assessment based solely on the lack of a causal nexus with the crime when that evidence was not presented as causal. For instance, he found during sentencing that Mann had demonstrated several mitigating factors unrelated to the murders, including that Mann had an “unstable and abusive family background,” a poor educational background, and a history of substance abuse.
As Eddings itself makes clear, it is well within the sentencer’s power to “determine the weight to be given relevant mitigating evidence.”
iii. Re-weighing old and new evidence
Finally, Mann argues that the state court erred in failing to reweigh the old and new mitigation evidence against the existing aggravation evidence during post-conviction proceedings. Courts considering additional evidence in post-conviction proceedings must “evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding in reweighing it against the evidence in aggravation.” Williams,
There is no indication that the state court did not fulfill this duty here. The court did not explicitly state that it had reweighed the evidence, but that is not the standard. Instead, “[i]t is sufficient that a sentencing court state that it found no mitigating circumstances that outweigh the aggravating circumstances.” Ortiz v. Stewart,
The dissent’s attempt to fold Mann’s claim of Eddings error into his claim that the state post-conviction court failed to properly re-weigh the evidence does not change this conclusion. As discussed above, the state court reasonably concluded that the additional evidence about Mann’s 1985 ear accident did not cause a fundamental change in his personality or set him on the path that led to Alberts’ and Bazurto’s murders, and therefore gave the new evidence little to no weight in mitigation. Therefore, it was not contrary to, and did not involve an unreasonable application of, federal law for the court to conclude that Mann had failed to show that the mitigating circumstances he had presented before the sentencing and post-conviction courts outweighed the aggravating circumstances of his crimes.
B. Reasonableness of state court’s prej-udicefinding
Even though Mann has not demonstrated that the state post-conviction court’s opinion should be subject to de novo review, he could still secure habeas relief under AEDPA if he could demonstrate that it was “unreasonable” for the state court to conclude that Mann was not prejudiced by his counsel’s alleged failings. See Richter,
Under Strickland’s prejudice prong, the petitioner seeking habeas relief must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
But, as noted above, even if the accident had an effect on Mann’s personality, it hardly changed an altar boy into a callous criminal. The presentence report submitted by the probation department attached a long criminal history record that included 14 offenses predating Mann’s 1985 car accident. While Mann’s earliest crimes were minor, they escalated over time. In 1980, Mann was sentenced to probation for third-degree burglary. In 1982, he was arrested after pointing a gun at the victim of an attempted car theft, at which point his probation for the burglary offense was revoked and he was sentenced to two years in prison. The presentence report also noted that Mann stole to support his family starting around age 15. Mann himself acknowledges that his pre-accident record was “troubling” and that the sentencing court had already been presented with “credible and potent mitigation” that it found outweighed by the heinous nature of Mann’s crime.
Given this history, it was not unreasonable for the state post-conviction court to conclude that the accident had no significant effect on Mann’s behavior. He had set on a path of violent crime long before the accident occurred. Nor was it unreasonable for the court to conclude that additional evidence of Mann’s good character was not enough to outweigh the various aggravating factors that the sentencing court had found: (1) the crime was committed for pecuniary gain, (2) there were two victims, and (3) Bazurto’s murder was committed “in an especially heinous, cruel or depraved manner.” Indeed, the aggravating factors remained unaffected by the new mitigating evidence.
Y. Conclusion
The judgment of the district court denying habeas relief as to both Mann’s convictions and his sentence is affirmed.
AFFIRMED.
Notes
. Until 2002, Arizona’s sentencing scheme in capital prosecutions allowed the trial judge to determine "the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.” Ring v. Arizona,
. By the time of the post-conviction proceedings, Karen Miller had married and changed her name. For purposes of clarity and consistency, this opinion will continue to refer to her by her name at the time of Mann's trial.
. Mann did not receive a Certificate of Ap-pealability as to these claims and does not raise them on appeal. We discuss them here only because they are relevant to determining the standard that the state post-conviction relief court applied to the ineffective assistance'of counsel claim.
. Mann argues that Miller “admitted during the PCR proceedings!]] that neither victim suffered and that they died or became unconscious almost simultaneous with the shootings.” Had she said this, it could have undermined the sentencing court's conclusion that Bazurto's murder was especially cruel, heinous, or depraved. However, Miller actually said at the post-conviction hearing that she didn't know whether Bazurto’s movements after he was shot were voluntary or involuntary, that it was "possible” that Mann had not accurately described the last moments of Ba-zurto's life to her, and that it was "possible” that. he had been unconscious even though she believed him to have been awake and struggling. To the extent that her testimony before -the post-conviction court was different from her testimony at trial, the post-conviction court " discounted] it and continuefd] to believe the evidence she provided at trial.” As noted above, we defer to the reasonable credibility determinations made by the state post-conviction court. Lonberger,
Concurrence Opinion
concurring in part and dissenting in part:
I agree with the majority that Mann is not entitled to relief on his claims of guilt-phase ineffective assistance of counsel. I respectfully disagree that he is not entitled to relief on his claim of ineffective assistance of counsel at sentencing. Therefore, I concur in part and dissent in part.
I
Before venturing into the dense thicket of AEDPA nuances, we must recognize at the onset that, although the law may not provide a remedy, Mann was sentenced to death under an unconstitutional sentencing scheme.
First, his death sentence was imposed by a judge, not a jury, under a system that the Supreme Court later declared unconstitutional as a violation of the Sixth Amendment right to trial by jury. Ring v. Arizona,
Second, he was sentenced during a period in which Arizona unconstitutionally precluded the consideration of mitigating evidence that lacked a “causal nexus” to the crime, in irreconcilable conflict with controlling Supreme Court Eighth Amendment jurisprudence as decided in Eddings v. Oklahoma,
Yet one more constitutional error infected Mann’s sentencing: ineffective assistance of counsel. Mann’s attorney did not investigate or present available and significant mitigating evidence to the sentencing judge. The majority does not seriously contest this constitutional error, but concludes that AEDPA deference prevents us from reaching the merits of that claim ourselves. I respectfully disagree that AEDPA precludes meaningful habeas review. I would reach the merits and grant relief.
II
The state post-conviction court was required to assess Mann’s ineffective assistance of counsel claim under Strickland v. Washington, which held that a criminal defendant’s Sixth Amendment right to counsel is violated if the defendant’s trial attorney performs deficiently and thereby prejudices the defendant.
A
Strickland requires a state post-conviction court to “evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding” — and reweigh it against the aggravating evidence to determine whether counsel’s deficiency prejudiced the defendant. Williams v. Taylor,
Sentencers and reviewing courts may determine what weight to accord mitigating evidence, but “may not give [mitigating evidence] no weight by excluding such evidence from their consideration.” Eddings,
Yet, we know that throughout Mann’s trial, sentencing, direct appeal, and post-conviction proceeding, Arizona courts “articulated and applied a ‘causal nexus’ test,” contrary to Eddings, “that forbade as a matter of law giving weight to mitigating evidence, such as ... mental condition, unless the ... mental condition was causally connected to the crime.” McKinney,
Shortly after Tennard, the Arizona Supreme Court recognized and applied a new rule eliminating the causal nexus requirement in State v. Anderson,
In this case, the post-conviction court applied a causal nexus test in violation of Eddings. First, we know that the post-
Second, the record shows that the post-conviction court actually applied the causal nexus test to Mann’s mitigating evidence. Indeed, the Court said so, stating “[t]he Court finds that Defendant has not proven the existence of a causal connection between the accident and its effects and the murders.” Moreover, the post-conviction court and the State emphasized the causal nexus test throughout Mann’s post-conviction proceeding. When clinical neuropsy-chologist Dr. James F. Comer testified about the results of Mann’s neuropsycho-logical evaluation, the judge asked Dr. Comer to clarify whether Mann’s head injury could have affected the crime. Dr. Comer responded by stating that he was “making no direct, causal connection” between Mann’s organic brain damage and the murders because that was “something ... the court need[ed] to determine” — a response that suggests he understood the court’s question to be legal, not factual. The State emphasized that colloquy in its oral argument at the close of evidence, noting that the “court specifically asked Dr. Comer the critical legal issue, whether there’s any nexus between any possible injury to the brain from that accident and to the crime.” Indeed, when discussing Dr. Comer’s findings, the State’s post-conviction hearing memo cited State v. Hoskins,
The post-conviction court’s written decision then directly responded to its own questioning of Dr. Comer and the State’s invocation of the causal nexus test. The decision first addressed Mann’s state law claim for resentencing, which could only be granted if “[njewly discovered material facts ... probably would have changed the verdict or sentence.” Ariz. R. Crim. Pro. 32.1(e). Then, as previously noted, the post-conviction court concluded that Mann had “not proven the existence of a causal connection between the accident and its effects and the murders.” Rather, Mann had “committed the[ ] murders for pecuniary gain, not for reasons traceable to his 1985 accident.” The post-conviction court thus concluded that Mann could not establish that any new evidence probably would have changed his sentence, as required for relief pursuant to Arizona Rule of Criminal Procedure 32.1(e). The post-conviction court’s cursory ineffective assistance of counsel analysis then imported the reasoning from that state law resentencing analysis. The court concluded that Mann was not prejudiced by his counsel’s failure to introduce evidence of the accident and Mann’s attendant organic brain damage because “[additional evidence that pertain[ed] to the 1985 accident and its effects [was] discussed ... above, where th[e] Court found that it would not have changed the sentence imposed.” That “discuss[ion] ... above” turned almost exclusively on the lack of “a causal connection between the accident and its effects and the murders.”
Further, I cannot presume that the post-conviction court’s invocation of the phrase “causal connection” was divorced from the legal meaning given to that phrase by the Arizona Supreme Court.
In sum, the post-conviction court excluded from its prejudice analysis as a matter of law mitigating evidence that, irrespective of its relationship to the crime, could have shed light on Mann’s moral culpability, contrary to clearly established federal law. See Eddings,
B
The post-conviction court’s prejudice analysis was also “contrary to” clearly established federal law because it applied the “more-likely-than-not” standard that Strickland rejected.
Here, the post-conviction court denied Mann’s ineffective assistance of counsel claim for the reasons “discussed” in its state law resentencing analysis, “where [the] [c]ourt found that [the new mitigating evidence] would not have changed the sentence imposed.” At the time of the post-conviction court’s decision, Arizona law limited resentencing to cases where “[n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence.” Ariz. R. Crim. P. 32.1(e) (2000). “Probably” effectively meant “more likely than not.” See State v. Orantez,
The fact that the post-conviction judge cited State v. Nash,
And even if the citation to Nash meant that the post-conviction court implicitly adopted the correct prejudice standard, it is not enough to cite Strickland — a court’s analysis must reflect it too. The Supreme Court has held that even if a state court identifies the proper Strickland standard, by “failing to apply Strickland to assess the ineffective-assistance-of-counsel claim ... raised, the state court’s adjudication [is] contrary to clearly established federal law.” Lafler v. Cooper, — U.S. —,
The only potential prejudice analysis is contained in the post-conviction court’s state law resentencing discussion, which primarily notes Mann’s pecuniary motive for the crime and the lack of a causal connection. However, both of those observations are irrelevant to a proper reweighing of aggravating and mitigating factors under Strickland — the post-conviction court merely restated an established aggravating factor and otherwise failed to
As a final note, the post-conviction court was not excused from its obligation to apply Strickland because the same judge presided over both Mann’s trial and post-conviction proceeding, and that judge concluded that the newly introduced evidence would not have changed his mind. Strickland’s prejudice analysis turns on a reasonable decisionmaker, not on the “idio-syncracies of [a] particular decisionmaker.”
Additionally and significantly, in states like Arizona, where the state supreme court “conducts an independent review of the aggravating and mitigating factors, reweighing them afresh,” Correll v. Ryan,
C
In sum, the record demonstrates that the post-conviction court’s prejudice analysis was contrary to clearly established federal law in two respects. Because the state court’s decision is not entitled to AEDPA deference, I would review Mann’s Strickland claim de novo.
Ill
Reviewing the Strickland claim de novo, one can only conclude that Mann was denied his Sixth Amendment right to effective assistance of counsel and is entitled to habeas relief. As we know, to prevail on a claim for ineffective assistance of counsel, a defendant must first establish that “counsel’s performance was deficient” and, second, that the “deficient performance prejudiced the defense.” Strickland,
A
Because the post-conviction court only reached Strickland’s prejudice prong, we must review Strickland’s deficiency prong de novo. Porter v. McCollum,
Counsel’s performance is measured by “an objective standard of reasonableness,” as determined by “prevailing professional norms.” Strickland,
Generally, for the penalty phase of capital proceedings, prevailing professional norms require counsel “to conduct a thorough investigation of the defendant’s background.” Williams,
Specifically, because evidence of mental impairment may place a defendant’s character in context, thereby reducing a defendant’s moral culpability, capital defense attorneys have a “duty to investigate and present mitigating evidence of mental impairment.” Bean v. Calderon,
As measured against these prevailing professional norms, counsel’s penalty phase investigation fell below an objective standard of reasonableness. The majority does not suggest otherwise.
Mann’s counsel never investigated the circumstances or consequences of the 1985 accident, and made no effort to investigate whether Mann sustained organic brain damage. The failure to do so is unsurprising given that Mann’s counsel admitted that he “was not focused on mitigation.” Indeed, counsel never even requested that a background investigation or any long term research be performed with regard to Mann. Counsel declined to pursue such avenues of mitigation relief despite the Capital Representation Project’s death
Mann’s counsel also never attempted to obtain Mann’s medical records, whether relating to the 1985 accident or otherwise. Yet, obtaining “readily available documentary evidence such as ... medical records” is “fundamental to preparing for virtually every capital sentencing proceeding.” Robinson v. Schriro,
Finally, Mann’s counsel did not speak with Karen Miller, again, contrary to the recommendation of the Capital Representation Project. Counsel was aware, however, that Miller lived with Mann for ten years, including both before and after the 1985 accident; that she was someone who “care[d] about” Mann; and that she observed a change in Mann’s behavior during their relationship. Counsel recognized the importance of their relationship and invoked it during his sentencing argument, noting that Mann “has tried to maintain some kind of a relationship with [Miller]” and that she “even went to the jail a couple times to visit” Mann. Counsel was thus aware that Miller “could have provided important background information” about Mann, “providing leads for further investigation,” likely regarding the 1985 accident and its impact on Mann’s character. Robinson,
If there could be any doubt that counsel’s actions fell below an objective standard of reasonableness, it is obviated by counsel’s concession at trial that such an investigation was the prevailing professional norm in the state of Arizona. See Wiggins v. Smith,
In the post-conviction proceeding, counsel did not attempt to insulate his failure to investigate Mann’s medical history as a strategic decision. But, even if he had done so, cloaking a decision as “strategic” does not eliminate counsel’s “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland,
Here, counsel did conduct a narrow mitigation investigation. He spoke with members of Mann’s family to develop evidence of Mann’s “unstable and abusive family background” and “positive relationships with his daughters and mother.” Counsel also requested a “neutral” psychological evaluation, provided by a person who was neither “defense [n]or State oriented.” However, “counsel’s duty to investigate all potentially mitigating evidence related to a defendant’s mental health [and] family background ... is not discharged merely by conducting a limited investigation of [those] issues.” Lambright v. Schriro,
Indeed, the failure to investigate Mann’s medical history could not be considered “strategic” in light of the mitigating evidence available to counsel. Mann’s biographical reference to the 1985 car accident and attendant concussion put counsel on notice of potential powerful mitigating evidence of organic brain damage, especially when coupled with the Capital Representation Project’s specific recommendation to investigate whether Mann suffered from brain damage. “In assessing the reasonableness of an attorney’s investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Id. at 527,
Counsel’s failure to investigate the 1985 accident and whether Mann suffered any organic brain damage was neither reasoned nor strategic; it was objectively unreasonable. Therefore, Mann’s counsel provided constitutionally deficient representation during the penalty phase of Mann’s trial.
B
Counsel’s failure to investigate and present mitigating evidence relating to the 1985 accident prejudiced Mann. If Mann’s counsel had conducted a reasonable investigation, the sentencing judge would have learned about Mann’s organic brain damage and ability to feel remorse, mitigators that could have affected the sentencer’s
To establish prejudice from counsel’s errors during the sentencing phase of a capital trial, the petitioner must show “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695,
Here, there was substantial evidence of organic brain damage that was not presented to the sentencing judge. According to post-conviction testimony, Mann lost consciousness for a few hours after the accident. Once in the hospital, Mann’s doctors, which may have included up to five neurologists, expressed concern about Mann’s head injuries. After the accident, Mann experienced symptoms associated with organic brain damage, including as-tro-projection and severe lingering headaches.
Mann’s post-conviction neurological expert, Dr. Comer, also concluded that Mann had “cognitive deficits consistent with head injury.” Dr. Comer effectively ruled out substance abuse as the cause of Mann’s cognitive deficits because the “cluster of weak test performances that [Mann] demonstrated tended to occur almost entirely on tests that had been well-documented to be sensitive to the subtle effects of head injury.” To further support that conclusion, both Mann and Miller presented evidence that it was only after the 1985 accident that Mann began using and selling cocaine, a conclusion consistent with Mann’s presentence report. This compelling evidence suggests that Mann suffered organic brain damage in the accident, from which, according to Dr. Comer, he did not “successfully] recover! ] emotionally and behaviorally.” The newly adduced mitigating evidence thus would have permitted the sentencer to more accurately assess Mann’s “character and record” — an “indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina,
The mitigating evidence relating to the 1985 accident would have been of particular import in Mann’s case because Arizona courts “place significant weight on brain injuries as mitigating evidence.” Correll,
Not only did evidence relating to the 1985 accident potentially reduce Mann’s moral culpability, but that evidence .also undermined factual and legal findings made by the state trial court. The record developed in the post-conviction proceeding eradicated the two factual pillars upon which the sentencing court based its legal conclusion that Mann did not establish the non-statutory mitigating factor of remorse, thus per se altering the balance of aggravating and mitigating factors established at Mann’s trial.
At sentencing, the trial court concluded that Mann failed to establish the non-statutory mitigating factor of remorse. The court specifically noted Mann’s description of the 1985 accident contained in his biographical letter, and stated that in the letter Mann “indicate[d] no remorse” for the death of his two passengers. The court then concluded that Mann was “incapable of remorse.” That conclusion collapses in light of the post-conviction record.
The post-conviction record demonstrates that Mann was capable of remorse and, indeed, expressed significant remorse following the 1985 accident. The medical records following the accident describe Mann as experiencing a “grief reaction.” Mann described himself as “devastated” by the death of his passengers, especially the younger girl, whom he considered “like a sister.” Miller said that Mann entered a depression after the accident, and that the death of his passengers “destroyed him.” This evidence directly contradicts the sentencing court’s factual finding that Mann did not experience remorse for the death of his passengers following the 1985 accident.
The court’s reliance on psychological testimony was similarly flawed because the psychologist was not provided evidence indicating that Mann may have received a head injury and therefore lacked “the information necessary to make an accurate evaluation” of Mann’s neuropsychological health. Caro I,
In sum, the post-conviction evidence materially altered the sentencing profile that was presented to the sentencing judge and to the Arizona Supreme Court on direct review. The mitigating evidence introduced in the post-conviction proceeding was not “largely duplicat[ive]” of the mitigating evidence introduced at trial, or otherwise of “questionable mitigating value.” Pinholster,
IV
For these reasons, I respectfully disagree that Mann is not entitled to relief on his claim of ineffective assistance of counsel at sentencing. Accordingly, I concur in part and dissent in part.
. Mann exhausted his Strickland claim by presenting it to the state post-conviction court and Arizona Supreme Court. The Arizona Supreme Court effectively adopted the post-conviction court’s flawed Strickland analysis by summarily denying Mann’s petition for review. Ylst v. Nunnemaker,
. The majority suggests that the post-conviction judge, who also presided over Mann’s trial, did not apply the causal nexus test during Mann’s trial and thus likely did not do so during Mann's post-conviction proceeding. However, the appropriate standard of review under AEDPA turns on the legal analysis of the court that adjudicated the claim at issue, not analyses in prior and distinct proceedings. Moreover, during the sentencing phase of Mann’s trial, the prosecution repeatedly invoked the causal nexus test, arguing that unless a mitigating factor "ha[d] a direct causal tie” to the crime, the court did not "have to consider it.” Although brief, the trial court's sentencing memorandum suggests that it agreed with the prosecution and, in accord with binding Arizona precedent, applied the causal nexus test to Mann’s non-statutory mitigating evidence. Thus, consideration of the trial court record suggests that the post-conviction judge was aware of, and had previously applied in Mann’s case, Arizona's unconstitutional causal nexus test.
. The Supreme Court's recent statement that "§ 2254(d) applies when a 'claim,' not a component of one, has been adjudicated” does not require a different analysis. Harrington v. Richter,
. Counsel requested a continuance because it was not until Mann was convicted that counsel "kind of realized ... that it normally takes quite a few months to prepare a case for a sentencing.” This concession provides further evidence of counsel’s deficiency. "The failure to start the mitigation investigation until after the guilt phase flies directly in the face of the 1989 Guidelines, which directs an attorney to start preparing for sentencing as soon as he starts working on the case.” Jones v. Ryan,
Concurrence Opinion
joined by BERZON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority and the dissent that petitioner did not meet his burden of establishing a meritorious guilt-phase claim. As for petitioner’s sentencing-phase claim, I fully join the dissent’s Part IIA analysis and conclude that Mann is entitled to de novo review on his claim of ineffective assistance of counsel. The dissent meticulously traces the post-conviction court’s treatment of Mann’s mitigating evidence and conclusively establishes that the court did indeed apply the rule from State v. Hoskins,