*1 Cir.1987) (9th INS, 1396, 1400 821 F.2d in this case— conclusion The IJ’s similar to that the provide (reversing to access the IJ’s determination refusal Singh’s in a failure of credibility file resulted “did not establish his petitioner the Canadian most with the analo- consistent proof answering ques- to evasiveness in due his —is issue. In that exists on this INS, authority gous Wang v. tions”); 352 F.3d contrast, majority’s conclusion (9th Cir.2003) (upholding the IJ’s 1256-57 an credi- required make adverse to IJ determination credibility on “obvi- adverse in this circumstance is bility determination evasiveness”). option The of conclud- ous single case. to a supported citation not denying case that ing appropriate an cases, majority Rather, cited might that well be access to information corrobo- produce failure to opinion address justifies applica- denial of the dispositive INS, See, Sidhu v. e.g., rating evidence. respect for the administra- promotes tion (9th Cir.2000) 1085, 1089-90 220 F.3d tribunal, injects finality fosters tive inference was an adverse (holding that reasons, certainty. For these measure of failed to the Petitioner when permissible credibility require I not adverse would evidence). Howev- corroborating produce the facts case. under of this determination er, cases are not Sidhu comparable uphold I IJ’s determination would 1) Sidhu reasons: dispositive for two allow to Singh’s refusal to access blatant merely hold that an adverse cases similar file immigration warranted the Canadian permissible credibility determination carry that he failed to determination infor- easily corroborating when available proof. burden of Those cases do produced. mation is not that the is limited to purport to hold IJ credibility determina- an adverse making 2) and, options as the has no other
tion and noted, whether the we do not know
IJ corroborating or dis- would be highlights reason The latter
qualifying. majority philosophical weakness LOPEZ, Petitioner-Appellant, George asy- majority would allow disposition. blatantly per- to refuse applicants lum v. perform immigration authorities mit SCHRIRO,* Depart Dora B. complete investigation applicant’s into Director; Megan ment of Corrections asylum. emphasize I eligibility for Respondents-Appel Warden, Savage, seeking immigration were officials lees. Singh anything. compel produce Rather, merely requested government No. 06-99000. government Singh authorize Appeals, United States Court itself. We this vital information gather Ninth Circuit. deliberately who not reward those should processes we the administrative thwart March 2007. and Submitted Argued eligibility have established assess June 2007. Filed reflect, adverse asylum. our cases As vary- meet with credibility determinations Compare Turcios on review. results
[*] Dora cessor, B. Schriro is substituted Terry L. Stewart, as Arizona for her Depart- prede- ment of Corrections Fed. R.App. P. 43(c)(2). Director, pursuant *3 HAWKINS, MICHAEL DALY Circuit Judge:
Appellant George Lopez (“Lopez”) was convicted in Arizona state court of child felony one-year- abuse and murder of his old son and sentenced to death. In this post-Antiterrorism and Effective Death (“AEDPA”) Penalty Act of 1996 habeas proceeding, presents one certified issue: *4 Lopez whether the state trial court denied rights under the Eighth Amendment by failing mitigation to consider presented at trial. He also seeks to ex- pand the of appealability certificate (“COA”) issues, four include additional including the Arizona Court’s re- view of his death sentence and three inef- fective assistance of counsel claims. We part, affirm in in part, reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY The relevant pertaining facts to the son, Anthony, death of Lopez’s are set forth in the opin- Arizona Court’s ion on direct review: Lopez met a woman in 1987 while he Cary Sandman, Waterfall, Economidis, coaching was a coeducational softball Caldwell, P.C., Villamana, Hanshaw & began team. He soon having an affair n withher and Tucson, AZ, for the petitioner-appellant. pregnant she became with his child in December 1987. Five Gorman, Robert J. Attor- State born, months before the child was ney Office, Tucson, AZ, General’s for the left his wife and moved in with the respondents-appellees.
mother her three-year-old son. The baby, Anthony, named was in Au- born gust 1988. year later,
One days nine August 1989, Anthony’s mother apart- left the ment at 10:00 to go a.m. shopping. She HAWKINS, Before: SIDNEY R. took her older child with her left THOMAS, CLIFTON, and RICHARD R. Anthony Lopez’ care. When re- she Judges. Circuit noon, Lopez turned around told her an Opinion HAWKINS; by Judge Partial accident happened. explained had He Concurrence and Partial by Judge Dissent that while he disposing was aof soiled THOMAS. room, diaper Anthony another had point, so Officer Mar- upset came pulled night- bed and
gotten off the Anthony’s moth- ended the interview. dula on himself. stand over had a bruise on his that he er saw evening, Detec- Shortly after 5:00 that his chin. another under forehead Salgado approached tives Miller and Lo- Anthony hos- take to the wanted to She him hospital and asked pez at the refused, Anthony saying pital, but room, adjacent them to a accompany right. all be would room, provided by the emergency then for a while and Anthony She held police offi- hospital paramedics and to be He soon wanted laid him down. Lopez appeared do work. paper cers to she noticed that again and held explained to Lo- calm. Detective Miller him alcohol and bathed hot. She they tape pez that wanted record again told again. him She held him their interview and then asked how take the child to the they should Anthony injured. Lopez stated that Lopez again but refused. hospital, home, Anthony’s mother were he and laun- had to do some Anthony’s mother and when heard a crash bedroom laundry to the dry, Lopez carried the so they investigate, Anthony *5 went to found returned, she he laundry room. When tipped-over lying face down under put to with him and went Anthony left However, in the inter- nightstand. later laundry washing machines. view, Lopez changed story. his He ad- apartment, she returned to When not at home. mitted that the mother was cardiopul- Lopez performing found she Anthony he left on He stated that had (CPR) Anthony. monary resuscitation on diaper. of a disposed while he bed Anthony the emer- They took then returned, Anthony saw with he he When University at Cen- room Medical gency of the in middle drawer one foot (UMC). personnel Emergency room ter reaching piggybank. for a nightstand attempted resuscitate unsuccessfully Anthony, startling him. He at yelled declared dead at 3:36 Anthony; he was Anthony jerked tipped back and then to the police were summoned p.m. on himself. He nightstand over spoke with Mardula hospital and Officer up. face nightstand, under the landed emergency exam- physician, room he did not Salgado Lopez told Detective Anthony’s body injuries ined the the truth had to him and said believe speak if with Lopez he would then asked any wrongdo- Lopez come out. denied in agreed. Lopez he had tears her and said, Salgado ing, Detective eyes, appeared calm and rational. his but with us you’re playing games “George, his Mi- Lopez read Officer Mardula finally now, Lopez admitted George.” then him what randa rights and asked Anthony on the buttocks. that he hit Anthony. Lopez relat- happened had his Lopez Salgado then read Detective previously that he had same facts ed the indicated that Miranda rights. Lopez Anthony’s mother. He stated related and would con- rights he his understood baby and deter- examined the that he He never questions. tinue answer “okay,” closely but mined was attorney nor did he refuse requested an when him. He stated that later watched ques- any of the detectives’ to answer with the helping the mother he was tions, to understand. appeared which he Anthony was noticed that laundry, he the interview concluded The detectives breathing. performed He CPR 7:00 approximately room at and left the and the mother baby and then he hospital. p.m. He be- Anthony to the took Lopez being injuries
While was interviewed aminer who told him that Miller Salgado, Detectives Detective Anthony suffered were not consistent Millstone, a member homicide Lopez’ A telephonic stories. search detail, hospital. arrived Detective Lopez’ apart- warrant was obtained for Lopez point- Millstone interviewed Lopez police ment. went with the offi- edly him if he asked had ever struck apartment cers to the and demonstrated anger. Anthony strik- denied Anthony injured. how was After the ing the child. Detective Millstone demonstration, Lopez was arrested. thought tape that the recorder was af- day, autopsy The next performed candor, Lopez’ so he fecting turned it off on Anthony. found numer- The doctor asked what concerns he had Anthony’s face, chest, ous bruises on answering questions. Lopez about told back and buttocks. had Some bruises Anthony’s the detective he was afraid hours, many occurred within 24 but might tape. mother hear the The detec- Anthony’s were older. skull was frac- tive told that he not going places, tured two of which one had play tape for her nor relate the been with such part caused force that details of the interview to her. the fractured skull had been driven into Detective Millstone then turned on the Anthony the brain. had an also exten- tape Lopez began recorder and to tell hemorrhage sive sepa- the membrane Anthony his version of how received rating brain the skull. injuries. He “I I got angry, got stated: The internal examination revealed that angry at everything, everything that has Anthony’s 10th and 11th frac- ribs were boiling been I’ve very angry over. been *6 injuries tured near his past couple days spine. these of These and moth- [the everybody knows that and corresponded er] it.” knew the bruises on Antho- Lopez day, stated that earlier he ny’s back. These fractures had been given Anthony had a bath and him laid within 24 of caused hours death. The down to him put peed, lotion on and “he 7th, doctor also found Anthony’s 8th so I smacked him.” Lopez Then stated: and 10th ribs had been broken in the “And I smacked him hard and he start- past and were healing Anthony when crying got angry, ed and I I got so Anthony’s died. pancreas was torn in diaper and it away went and threw and two, his bowel and the membrane hold- time, that’s when I saw him.” At this lacerated, place it in were and his Lopez yet recounted another version of spleen gland and adrenal had bled. The Anthony’s injuries. the cause of This injuries peritoni- abdominal had caused time, Anthony after climbed on the injuries tis. All of these had been nightstand yelled him, Lopez at An- caused within 24 of hours death. The thony grabbed lamp as he fell be- Anthony doctor determined that had nightstand. Lopez neath the jumped head, died of blunt-force trauma to the nightstand toward the to prevent it from chest and abdomen. falling Anthony, on but instead he fell on Lopez, State v. 174 Ariz. 847 P.2d top nightstand. radio, Then the (1992). 1078, 1081-83 which on had been the nightstand, fell hit Anthony was indicted on one count of face. first- Detective Millstone degree concluded the at 7:22 interview murder and one count of child p.m. abuse, jury and a convicted him on both spoke Detective Millstone then counts. At an aggravation/mitigation with the treating physician and hearing the medical ex- prior conducted to sentencing, Lo- family and indicated it had consid- friends and cumstances put on numerous pez witnesses, testified that presented who “all evidence the defen- members as ered person liked non-violent who Lopez was a by way mitigation.” dant that he had never acted people and help court The concluded: children or inappropriately toward their victim, The a child of months and community members Various his own. days age, mercy was at the of the concerning Lopez’s service in testified or ability protect with no defendant community military, and the organizations ap- suffering defend himself. His was employment history. positive his and about foreseeable, parent or but defendant’s prison chaplain A testified was selfish concern to shield himself from inmate cooperative and well-behaved a consequences of his own actions study classes regularly attended Bible who deny any hope him caused child inmates, carry and could helped other pain life of his or the surcease given if a helping others out his mission through medical The treatment. Court prison official testi- life sentence. Another cruelty depravity finds cooperative and had fied that innocent, acts defendant’s towards the disciplinary reports. baby outweigh in his care far helpless testimony presented prosecution The might evidence which call for lenien- witness, Hobeich, Dr. expert from an cy. abuse. expertise with child pediatrician imposed penalty. then death An- pain about the Dr. Hobeich testified injuries, thony experienced likely majority Ari- appeal, On direct compared “surgery without which affirmed the zona convic- symp- He also described anaesthesia.” Lopez, tion and 847 P.2d sentence. injuries, Anthony’s toms of child un- majority 1092. The indicated was “hot touch” and including being to the dertaking independent review of the “lethargic” lacking power or ener- record to determine whether the death making cry, for a full more of “cat gy appropriate, and concluded sentence pain to communicate before cry” instead finding supported that the evidence *7 eventually consciousness. Dr. Hob- losing factors, and that the aggravating the two Anthony probably eich testified properly trial court could find hour, pain for at least an conscious and ev- proffered mitigation refuted the record possibility at a and that there was least justices dis- Id. at 1090-92. Two idence. injuries if he had could have survived his of the imposition death sented from received treatment for them sooner. sentence, failure faulting the trial court for court, defense closing arguments to requir- comply with an Arizona statute relied on the evidence counsel findings regarding mitigating ing specific aggravation/mitigation presented (citing Ariz. circumstances. Id. at 1092-93 argu- hearing, but also made substantial 13-703(D)). § Rev.Stat. demonstrate ment that the record did not relief, sought then state collateral Lopez kill his ever intended to son. among things, other number raising, proved found the state had The trial court regarding claims ineffective assistance the defen- aggravating two factors: Following appellate trial and counsel. especially in an committed the offense dant de- hearing, superior court evidentiary manner, heinous, depraved cruel and entirety. Lo- Lopez’s petition in nied its an adult and that the defendant was petition filed a for review pez then age of fifteen. The victim under Court, raising again statutory Supreme cir- court found “(1) a number of ineffective assistance of coun- of his claim cation resulted in a deci- claims, including allegations sel that his to, contrary sion that was or involved an counsel had “abandoned” him at sen- of, application clearly unreasonable estab- tencing stage. Supreme The Arizona law, by lished Federal as determined postcard peti- issued denial States; Supreme Court of the United or petition tion. Lopez’s for writ of certiorari (2)resulted in a decision that on was based the United States Court was an unreasonable determination of the facts also denied. light presented
Lopez then initiated this habeas action
proceeding.”
State
court
28 U.S.C.
in federal district court. The district
2254(d).
court
§
found several
be
claims to
unexhausted
In assessing
whether
state
dismissed those claims.
subse-
application
court’s
of law or determination
quently returned to the
superior
state
“unreasonable,”
of fact is
the court cannot
court, which
some
on proce-
denied
claims
simply consider whether
it would have
grounds
dural
others
their merits.
reached a different outcome on the same
Petitions to the Arizona Supreme Court
Collins,
333,
record.
v.
Rice
546 U.S.
United States
Court were
969,
(2006)
S.Ct.
unhappy record, For the the Court has read the mitigating evidence. bance as presentence report, the letters and other by documents submitted the defendant Here, however, did sentencing the court in any period the time since the verdict was presenting prevent Lopez not largely presentence it affirma- since the mitigation, in nor did evidence entered — filed, any was tively prepared indicate that there evidence was as well as this Indeed, the sen- having it would not consider. Court’s heard the trial and the stated that tencing expressly aggravation/mitigation hearing May presented all evidence 10th, considered “ha[d] the 1990. mitigation.” by way the defendant added). (emphasis Having referenced the statement, and acknowledges this presentence report, the Court then went usually that a court is deemed also admits clarify, on to consistent with its earlier all to have considered ruling: Clark v.
where the court so states. See
count], the
murder
Court is
[the
As
(9th
Cir.1992);
Ricketts, 958 F.2d
only
presented
considering
those factors
308, 314, 111
Dugger, 498
Parker v.
U.S.
mitigation hearing.
at
aggravation/
the
(1991) (“We
731,
must more than find the statement witnesses at the ambiguous fact, would have to conclude appears Lopez In it that at one point —we Supreme objec record, that the Arizona Court was similarly in viewed the as one of tively concluding unreasonable the sen post-conviction petitions, his state as- did, fact, tencing court review all the sentencing, imposed serted: “At this court proffered mitigating evidence. See Lock appears the death it penalty; this court yer, Rely 538 at 123 1166. U.S. S.Ct. impose reached its decision to death in ing sentencing express the court’s part phase at the testimony guilt of presen- statements that it had read the added). (emphasis the trial.” reports, ag tence the trial and heard the Lopez court contends that the trial must gravation/mitigation hearing, consid have failed to trial consider the record all presented by Lopez, ered the it of because did find the lack intent to Supreme Arizona concluded that course, kill as a mitigating factor. Of the clearly us record before indicates “[t]he trial court did not specifically discuss all judge that trial considered the miti of mitigating Lopez pre- evidence that presented gating by Lopez.” factors Lo sented, so a failure to this discuss factor pez, 847 P.2d at an 1091. This necessarily does not indicate was not unreasonable determination facts addition, In considered. on the date the Parker, light the record it. See before sentence, pronounced court coun- (assum 314-15, 498 U.S. at S.Ct. argument sel made an before the court judge trial mitigating considered all primarily that was based on the lack passing evidence before sentence because intent kill.3 required he said he did and law state him to).2 light the foregoing, agree we with the district court that the Arizona Su- Moreover, sentencing judge clearly preme objectively Court was not unreason- findings made that were based on trial in determining sentencing able that evidence, thus negating the argument court had all prof- considered court considered evidence from evidence, fered including the ev- aggravation/ mitigation proceeding. presented idence at trial.4 example, For Lopez court found that “willfully intentionally” abused the Meaningful Appellate II. Review child, baby that the was entrusted to Lo- care, pez’s After the district court sua sponte and that denied the child I, protect himself, medical treatment issued COA al- Issue though the actual expand circumstances of the asked this court to A the COA. crime and by aftermath were not panel discussed motions request, denied this but in 2. This court argues “willfully reviews state and intention ally” language Court's decision because it is the last rea- also modifies "caused his Barker, soned decision on this issue. interpretation plau death.” Because either sible, at F.3d 1091-92. The determination ambiguous, of what the statement is at best the trial an strongly found is issue of way historical does not cut one or the other. Parker, fact. at S.Ct. 731. conclusion, agree 4.Because we we this sentencing 3. found court had need not address the district court’s alternate “willfully intentionally physically holding abused that even if trial court had erred the child entrusted to his care and caused his and failed to consider all the evi- Lopez argues death.” presented sentencing, any statement dence simply underscores did not find such error was cured the Arizona kill,” abuse, just "intent intent to independent but the Court's review of the record.
1039
surrounding them
its conclusions
violated
re-raise these issues
dicated
could
brief,
process
he has done.
made it
for the
impossible
which
due
opening
in
briefing as a
additional
in-
Supreme
perform
construe this
Court
its
We
expand
COA. See
However,
further motion
Lo-
dependent duty
review.
1(e).
COA,
To receive
Circuit Rule
not
pez
point
“clearly
does
estab-
22—
that “reasonable
demonstrate
Lopez must
Supreme
precedent setting
lished”
Court
court’s as-
jurists
find
district
would
sentencing
court must
forth the record
claims de-
of the constitutional
sessment
permit
appel-
make in
sufficient
order
McDaniel,
v.
wrong.”
batable or
Slack
2254(d)(1).
§
late
See
review.
28 U.S.C.
484,
1595,
473,
146
120 S.Ct.
529 U.S.
The
thus
district
denied
(2000).
L.Ed.2d 542
claim,
noting
clearly
there was
Supreme
established
Court law or consti-
the Arizona
argues that
Su
requirement
particular
tutional
“that a
provide meaningful
preme Court failed
sentencing
by
produced
record be
the trial
This
of his sentence.
independent review
agree,
expressly
court.” We
have
not,
Lopez argues,
somehow
issue
important
held that
that the
“[w]hile
the certified issue dis
encompassed by
reviewing
appeal
record on
disclose to
contrary,
To
the dis
cussed above.
court the considerations which motivated
expressly limited its COA
trict court
...
process
the death sentence
due
does
“the sentenc
alleged errors committed
Rather, Lopez
exhaustively
raises an en
that the
require
sentencer
court[ ].”
tirely independent constitutional claim5
analysis
mitigating
document its
each
the Arizona
Court’s
regarding
reviewing
as a
federal court
long
factor as
process, alleging that
review
state
can discern from the record
trial court
mistakenly determined
mitigating
all
court did indeed consider
mitigation,” when the trial court
found “no
by the
evidence offered
defendant.” Jef
weighed
fact
factors
in
(9th
Lewis,
411,
v.
38 F.3d
418
Cir.
fers
aggravators. This claim is not
against the
1994)
banc)
(en
Florida,
v.
(citing Gardner
unexhausted,
only
actually
it is
raised
361,
1197,
349,
51
430
97 S.Ct.
U.S.
appeal.6
this
We there
the first time on
(1977) (plurality opinion)); see
L.Ed.2d 393
deny
fore
a COA on this issue.
Stewart,
1030,
also
v.
F.3d
Williams
Cir.2006) (“[T]he
(9th
trial court is
attempts
sweep
also
every
to ‘itemize and discuss
required
he did raise below in
claim within one
...
mitigation’
piece of evidence offered
trial court
district court:
the state
reviewing
as it
clear to
long
makes]
[so
constitutionally inadequate findings.
made
sentencing court considered
court that the
Lopez argued below that the
court’s
that was
factors it considered and
all relevant
failure to list the
Parker,
321,
vens, JJ.));
S.Ct.
498 U.S. at
Eighth
and Fourteenth Amendments
5.
731.
government
imposing
prohibit
arbitrary
penalty
or irrational
death
error in the Arizona
6. The
fashion,
Supreme Court has held that
and the
Lopez alleged in his feder-
Court's review
"meaningful appellate
necessary to
review” is
petition was the Court's failure to
al habeas
penalty
imposed
the death
is not
ensure that
proportionality review of his death
conduct
Harris,
Pulley
a manner.
v.
in such
addition,
state and
sentence.
(1984)
104 S.Ct.
79 L.Ed.2d
consistently
filings, he
asserted —con-
federal
153, 198,
(citing Gregg Georgia, 428 U.S.
trary
the trial court
to his assertion now—that
204-06,
(1976)
offered.”); Clark,
opportunity
Because claim. At the the district court dis evidentiary procedural hearing,. Lopez presented missed claim on a evi- ground, apply we proce Slack both the dence about his trial counsel’s failure to ground dural underlying investigate constitu present mitigation for the claim tional to determine if are they debat capital sentencing, expert as well as testi- among jurists able of reason. Valerio mony about an allegedly competent de- (9th Cir.2002). Crawford, 306 F.3d attorney’s fense of investigation duties With respect prong, the substantive presentation of An mitigating evidence. however, we take a “quick look” to expert competent testified that defense determine whether petition facially al duty counsel a had to investigate leges the denial of a right. constitutional background and social history, (internal Id. at 775 quotation marks omit so, result of counsel’s failure do ted). sentencing judge did not discover that Lo- pez grew inup dysfunctional household
In order to fulfill exhaustion re
parents
with alcoholic
began
and also
quirements,
petitioner
present
must
drinking
early age.
expert
at an
also
the state
equiva
courts the “substantial
testified that trial defense counsel failed to
lent” of
claim
presented
federal
Connor,
270, provide
examining psychologist
court. Picard v.
(1971).
family,
S.Ct.
1041 district court rejected claim conclude the erred this on We court The state merits, concluding that evidence Lo- by determining Lopez’s the ineffective as- sufficiently alcohol abuse was pez’s for failure in- sistance of counsel claim to leniency. Lopez to for call substantial vestigate present mitigating and evidence to the denial the appealed then at Lopez unexhausted. did least is- Supreme Court. his statement general allegations the of his coun- make sues, by prejudiced he was Lopez indicated to penalty phase preparation sel’s lack of his [of] “abandonment his trial counsel’s im- (including the Arizona sentencing.” He client at the trial and/or inexperienced to an sub- proper delegation governing fed- identified Strickland as to prepare ordinate and failure mental petition His standard. eral constitutional court experts), health the state record as on the claim fol- for review elaborated a dysfunctional contains some evidence of lows: “quick A look” childhood and alcoholism.7 appear- for all counsel] Mr. Bruner [trial of his federal claim also the merits mitigation prepa- turned over the ances sufficiently alleged has reveals Marshall, junior his coun- to ration Ms. deprivation right. of a constitutional sel, done no serious previously who had Valerio, F.3d at 775. therefore 306 We death including murder trials and/or grant phase penalty COA penalty gave Mr. Bruner di- trials. claim for failure to ineffective assistance [evaluating psychi- rection to Dr. Morris present mitigating evi- investigate and evaluation, than other to atrist] for dence and remand to the district court to know about Bruner wanted Mr. proceedings.8 further dynamics, personality “overall asking for things of this nature. Wasn’t Regarding Defense IV. Procedural Bar case, help to but anything specific to Rebut Testi- Counsel’s Failure learning more about interested mony by Dr. Hobeich Lopez.” makeup Mr. psychological petition, claims that In his federal was not importantly, Dr. Morris Most for also ineffective trial counsel was opinion to or render an asked evaluate testimony state’s failing rebut Mr. given as to the statements Hobeich, witness, Dr. who aggravation Mr. Bruner be- law enforcement. Lo- penalty testimony pain death would not about the presented lieved imposed prepared be in this case and pez’s likely suffered before death. son accordingly. this claim to court first found The district unexhausted, then, procedurally be Lo- The Arizona Court denied independent adequate barred on an pez’s petition. penalty presented recognize counsel that could have been 7. We habeas proceeding, pre- phase mitigation was not court that but to the federal district conceded allegedly defi- sub-parts due defense counsel’s of this claim were ex- sented some presented to by post-conviction performance was not counsel. Howev- cient hausted —that remand, er, independently review the district court can the state courts. On wheth- whether the will need to determine state court record determine court therefore evidentiary hear- actually Lopez, has been exhausted. See Aiken issue er who received Cir.1988) court, (9th supplement Spalding, 841 F.2d entitled to in state curiam). (per an additional evidentia- the record or receive hearing court. See U.S.C. ry in federal (set- 2254(e)(2); § § foil. R.7 U.S.C. Lopez apparently 8. We note that wishes expanding the record ting rule forth the supplement record in federal court with review). prejudice on federal habeas additional —information 32.2(b) 32.1(h), pro- ground. previous state law As with the under Rule and Rule claim, analyze grant we whether to a COA applying hibits the state Rule by applying 32.2(a)(3) 32.1(h) 32.2(b) the Slack standard to the dis- Rule claims. procedural ruling trict court’s *13 provides: Valerio,
underlying
claim.
constitutional
32.2(a) [preclusion
Rule
from
shall
relief]
district court
correctly apply state
Injuries
to know and
to Evidence of Prior
sumed
Arizona,
law.
Walton
See
During
phase
guilt
111 L.Ed.2d
110 S.Ct.
trial,
examiner,
Henry,
Dr.
the medical
(1990),
grounds
overruled
other
Anthony
testified that
suffered from sever
*14
584,
Arizona,
122 S.Ct.
Ring v.
536 U.S.
injuries,
rib fractures
healing
including
al
(2002);
2428,
Beaty v.
556
153 L.Ed.2d
about
face
torso. Lo
and bruises
and
Cir.2002).
(9th
975,
Stewart, 303 F.3d
986
argues that
have
pez
his counsel should
Moreover,
to the
Lopez specifically argued
under Ari
moved to exclude this evidence
that the trial
404(b),
zona Rule of Evidence
as evidence
precluded,
finding
had
the claim
erred
crimes, wrongs,
other
or acts not admis
of
ruling.
and
not reverse the
the Court did
person,
to
of a
prove
sible
the character
because the
grant
We
COA
grant
this
a
on this
and asks
court to
COA
is
determination
procedural
district court’s
argues the
not
issue. He
evidence was
jurists and
reasonable
among
debatable
exceptions,
of
admissible under
alleged
deprivation
of
facially
has
prove
as to
absence of mistake or
such
right,
but we nonetheless
constitutional
accident,
proven
because the state had
This
ruling.
affirm the district court’s
Lo
by
convincing
clear and
evidence that
court,
court,
gen
sitting as habeas
when
injuries.
State v.
pez caused
other
See
erally respects
court determinations
state
229,
Nordstrom,
717,
200 Ariz.
P.3d
736
25
Lambert, 357
of
law.
Powell v.
state
See
(2001). Lopez contends that had this evi
(9th Cir.2004);
871,
Es
874
see also
F.3d
excluded, there is a reasonable
dence been
62, 67-68,
v.McGuire,
telle
502 U.S.
jury
have con
probability
would
(1991) (a
475,
feder
The first of Strickland considers accidental, they fered required were Lopez’s counsel fell below an ob whether force, great they likely re- jective fail deal standard reasonableness blows, object prior inju quired which, repetitive prose- the evidence of 404(b) ries as Rule evidence. 466 U.S. at argued, required thought. cution effort and 687-88, 104 2052. if S.Ct. Even we as The prosecution argued severity that the court unreasonably sume that the state injuries of Anthony’s simply permit did not determined was not counsel a finding of recklessness —that had object to at failing deficient least intentionally willfully either inflicted evidence, satisfy prong the second child, injuries these on the or that it was Strickland, Lopez must also demon accident, some freak but that there *15 that, probability strate a “reasonable but pointed in prosecution between. The also errors, unprofessional for counsel’s the re out the in Lopez’s inconsistencies state- proceeding sult have of would been police, ments to his reluctance to take the 694, 104 Id. different.” at S.Ct. 2052. child hospital, to the and that ex- Henry’s testimony clearly Dr. focused planation what happened was inconsis- injuries major on the three that ultimately tent with the medical evidence. in injuries Anthony’s resulted to death — Lopez Although argues jury that head, his chest and abdomen. Occasional could found have recklessness but for the healing references older bruises or rib allegedly improper testimony about describing fractures were made when bruises, prior agree we with the district body at condition the time of the objec- that the state court was not autopsy. Dr. Henry also testified that the tively determining unreasonable in that injuries might abdominal have occurred probability there was reasonable earlier, day more than a but that it was guilt phase different outcome on based possible they also had been inflicted record. We therefore affirm the district injuries. around the same time as the head court’s of Lopez’s petition denial on this truly damaging But portion of Dr. claim. Henry’s testimony descriptions was PART, IN AFFIRMED REVERSED injuries other minor or bruises was his —it PART, IN AND REMANDED. Anthony’s testimony consistent that three injuries serious were consistent with THOMAS, Judge, Circuit concurring in injuries, accidental highly unlikely were part dissenting and in part: by nightstand have been caused a falling by as described Lopez, were not in- I in concur the majority’s holdings in blow, by flicted a single by separate but majority Parts opinion. II-V That head, very forceful blows to the chest is, I agree that the district court erred in and abdomen. that concluding Lopez’s ineffective assis- tance of counsel claims for failure to inves-
Perhaps importantly, prosecu- more tigate present tion any Henry’s did not use of Dr. testi- mony unexhausted, prior injuries about were argue Lopez’s agree and I that state of mind. The reference to the is not entitled to remand or relief his for the child’s death that explanation was the Arizona claims review, control, appellate meaningful enraged, him Defendant became lost denied failing lawyer that his deficient quite seriously.” and beat the child State challenge testimony, or Dr. Hobeich’s 131, 1078, 1092 P.2d Lopez, v. 174 Ariz. object lawyer failing his was deficient (1992) (Feldman, C.J., specially concur injuries. prior to evidence of ring). also There was evidence introduced Lopez attempted administer However, because I conclude Anthony stopped breathing CPR when an unrea- successfully demonstrated has visibly upset by Anthony’s Eddings v. Okla- application of sonable homa, behavior 102 S.Ct. 71 death. This is inconsistent 455 U.S. (1982), both the trial L.Ed.2d 1 based on an intentional homicide.
judge’s
the Arizona
Court’s
Although
specific
in-
the formation of
rea
a miti-
failure
consider his mens
a prerequisite
tent
to kill is not
to the
factor,
I
dissent
gating
respectfully
imposition
a death
penalty,
Tison
majority’s opinion.
Part I of the
Arizona,
107 S.Ct.
(1987),
specific
L.Ed.2d 127
the lack of a
I
intent
to kill is relevant
to whether the
I
concern raised
Jus-
share the
Chief
appropriate
for an indi-
death sentence
concurrence,
special
tice Feldman
Notably,'
child
vidual defendant.
most
findings
namely
lack of
trial court
felony
do not
abuse
murderers
receive
finding
such
on mens rea.
lack of
death,
approaching
even
sentence even
problem
creates a distinct constitutional
undoubtedly
though all
murders are
such
*16
evi-
Eddings
there is no
under
because
penalty eligible.
death
actually con-
dence that the Arizona courts
short,
case
an
one.
this
is
unusual
factor.
mitigating
sidered mens rea as a
the
that
Lopez received
harshest sentence
an
in
death
This
is
outlier
our
case
impose
even
empowered
the state is
record
penalty jurisprudence because the
for his
though
never intended
victim
undisputed
to con-
parties
is
all
seem
—and
exempt
This
him from
fact does not
die.
kill his
cede—that
never intended to
penalty
the death
means. Howev-
trial,
prosecution
the
Throughout
son.
er,
question
call into
the state
does
murder
emphasized
felony
that child abuse
of mitigation.
courts’ assessment
Dur-
does not include
intent element.
sentencing hearing,
Lopez’s
after
ing
II
specific
lack of
Lopez’s
counsel stressed
Eddings,
contemplat-
a
Under
sentencer
factor,
prosecu-
mitigating
intent as a
a constitutional
ing
penalty
the death
has
only argument
tion’s
in rebuttal was
consider,
fac-
“as a
obligation to
analysis:
from
following
that
knew
tor,
any aspect of defendant’s character
are
experience that children
vulnerable
any of the circumstances
or record and
An-
injury,
injure
intended
that
proffers as
that the defendant
the offense
[Lopez]
thony,
that “we can
infer
a sentence less than death.”
a basis for
damage
injuries] caused
intended the
[the
(quoting
869
455 U.S. at
S.Ct.
very familiarity
chil-
of his
with
because
Ohio,
586, 604,
S.Ct.
Lockett v.
added). Then,
ar-
while
(emphasis
dren.”
(1978)).
Applying
During Lopez’s sentencing hearing, his
final
was inexplicable
decision
without ref-
spent
argu-
trial counsel
considerable time
to that
Specifically,
erence
evidence.
lack
Lopez’s
specific
intent
Supreme
pointed
Court
out that the trial
against
militated
the death sentence.
Eddings
judge
jury’s
There is
no doubt that
had overridden the
therefore
recom-
required
judge
the trial
and the Arizona
life
only
mended
sentence
one
Court to consider
mens
two murders
Al-
involved
case.
rea when
whether
deciding
impose
committed
though Parker had
a dual homi-
penalty.
to affirm the death
The
whether
cide, he received the death sentence for
only
us,
therefore,
question before
one murder and a life sentence for the
did,
fact,
whether or not
state
courts
aggravating
other. Because the
circum-
Lopez’s argument.
consider
homicides,
applied
stances
to both
the Su-
preme Court
only
reasoned that the
expla-
In reviewing the state court
for a
record
violation,
nation for the
potential
sentencing
differential
was
Eddings
this court
must,
notes,
majority
trial
correctly
pre-
judge
that the
had considered non-
judge
sume that
trial
statutory
and the state
mitigating circumstances and
actually
all of
considered
had determined that those circumstances
the mitigating arguments
pre-
that were
justified leniency
respect
to only one
arises,
This presumption
sented.
first and
Parker,
of the murders.
Ill
”
(quoting
1. The here opinion, concludes: “Of man’s the failure to an make intent specifically the did trial court discuss finding, the findings unlike failure to make mitigating Lopez present- of the evidence that non-statutory mitigators, legal related to is a ed, so a failure to factor discuss this does not error, failure, not mere That churlishness. necessarily indicate it was not considered.” therefore, significance has far more than the Maj. Op. 1038. As be clear should from majority opinion assigns to it. this discussion and from Chief Justice Feld- is, phrasing, finding cause of its the as A believed, am- Chief Justice Feldman too Lo- only reference to judge’s The trial 13-703(D). biguous satisfy § The that her pez’s intent was statement draw clear judge’s statement does not a intentionally physically “willfully and intended conclusion as whether care and child entrusted his abused the for his son to die. makes death.” This statement caused his Second, not, § the statement does 13- as clearly finding; a it as Tison perfect sense 703(D) requires, any articulation of include engage Lopez intended to that concludes § finding’s the effect on the overall 13-703 life, endangered Anthony’s in conduct that is, assuming the balance. That even that dangerous the clearly it that and concludes judge’s sufficiently trial statement clarified Anthony’s death. Under conduct caused Lopez did, fact, that intend kill his Tison, Eighth Amend- is all that the son, judge the also trial should have stat- ment demands. resulting explicitly on record —the ed— concluded, As Justice Feldman Chief proffer conclusion that failed falls however, judge’s trial statement the mitigating circumstance. In oth- provide 13-703(D) First, finding. § far short of a words, judge if the trial had considered er it makes grammar the of the statement as a Lopez’s argument factor— to determine impossible difficult if not just challenge and not as Tison —she only to finding attaches whether the intent more. would have said is, That abuse or also to homicide. sum, real transcript the trial raises a only meant judge might trial have that the took ar- possibility judge abused Lopez willfully intentionally and challenge, failing gument only abuse as Tison Anthony and that the intentional unintentionally) argument to consider the same its sec- actually (though perhaps Indeed, statutory mitigator. role Anthony’s On the other ond as a caused death. hand, support except may transcript provides meant she have — judge intentionally by speculation specif- the trial willfully physically and —that ically mens rea as a Anthony willfully inten- considered abused and and Be- tionally Anthony’s death.2 factor. caused sentencing transcript gives sentencing tionally” Interestingly, transcript
2. entry, independent lasting signif- which phrase the minute both of include slightly finding, punctuate finding icance, intent might read to attach to such that be missing important differently; an comma is following phrase. ab- both halves sentencing entry. In the from the minute comma in the written order sence quoted hearing transcript, judge is the trial "willfully significant and intention- then since "[Tjhe following commas: part ally” of the immedi- becomes seamless doubt that the de- beyond finds a reasonable ately following phrase, "physically abused child, fendant, Anthony, will- the father of the phrase to his care." That child entrusted fully intentionally, physically abused separated finding by murder then his child entrusted to his care caused "and,” "willfully conjoining that the such however, entry, death.” In the minute might carry intentionally” language FINDS, judge wrote: “THE COURT the "and” to attach to the homicide. over MURDER, be- to Count FIRST DEGREE Reading entry, which is the find- the minute defendant, yond that the a reasonable doubt might have been herself Anthony, willfully and in- father the child highly possi- punctuating, it seems involved in tentionally physically en- abused the child finding attached ble that the intent caused death.” to his care and trusted abuse, not to murder. "willfully following and inten- The comma *20 B without involving a malicious intent on the part of the intoxicated driver. On direct the Arizona appeal, Supreme majority Court’s opinion implicitly con- For purposes, our it is highly therefore firmed this view of the trial record and relevant that the Supreme Arizona Court ultimately repeated the error. The Su- relied solely on the last two factors when preme opinion strongly implied Court’s upholding finding of heinousness and majority specific found no depravity intent in Lopez’s case. The court’s kill, but the opinion proceeded to ex- conclusion that none of the first three fac clude that finding from its consideration of tors were present in this case strongly mitigating factors. implies that the court found little to no of specific intent to kill. Id. In fact, the evidence that the Arizona Su preme
Although
support
Court cited to
Supreme
finding
its
Court
senselessness
specific
made no
was the
finding,3
very
intent
evidence that
major-
Chief
ity
Justice Feldman
opinion
when
strongly
arguing
did
cited
indicate its belief
probably
did
Lopez did
not intend to kill
not intend to kill Anthony.
his son.
In the words
the Supreme
The court’s
implication to that effect came
majority opinion:
Court’s
“The
analysis
murder of
its
of a statutory aggravating
Anthony was senseless. Lopez
factor that
admitted
based
was
on the finding that
that after
given
he had
Anthony a bath
Lopez was in a
depraved
“heinous and
putting
him,
lotion on
the infant
state of mind when he beat Anthony.”
”
‘peed,
I
so
smacked him.’
Lopez, 174
Lopez,
rea 13-703 balance. The role play dual that mens rea must Particularly given Justice O’Connor’s death penalty cases does not undermine speculation, conclusion; admonition against fact, I would strengthens this it it. conclude that an has demonstrated Eighth The fact Amendment con- Eddings violation. minimum culpability requirement tains a importance demonstrates the critical of the
TV
defendant’s mens rea in a death penalty
whether,
Although
decision.
question
The final
under
intent’s dual
role
understand,able
AEDPA,
makes it
that a sentencing
the state courts’
consid-
failure to
might
judge
er
fail to
mitigating
intent
switch hats after mak-
factor constitutes
unreasonable,”4
ing
an
an Enmund
dual
“objectively
finding, the
role does
rather
erroneous,”
than
not make the same
simply an “incorrect
failure reasonable.
or
Even after
application
Eddings.
establishing eligibility
Lockyer
See
v.
Andrade,
63,
death
1166,
penalty, Eddings clearly requires
538 U.S.
123 S.Ct.
(2003)
sentencing
judge
155
(citing
L.Ed.2d 144
continue evaluat-
Williams
crime,
ing
Taylor,
410, 412,
including
rea,
the whole
529 U.S.
mens
S.Ct.
(2000)).
determine
penalty
In
whether the
Eddings without qualification, that case, process applicable due requires sentencer consid- state law and er all at arguments presented factors that a sentencing defendant proffers. 869 make the state courts’ all S.Ct. failures the more (“The sentencer, First, and the [appellate unreasonable. court] to the extent that the review, may determine weight requirement to be might Lockett have been am- given relevant mitigating But biguous, evidence. requirement same was codi- 4. Because neither trial the Ari- nor that intent is not a factor under zona specific Eddings, made men- I certainty cannot conclude with standard, Eddings tion of the they I my will not did so. I ana- will therefore confine anal- lyze standard, question "contrary ysis under AEDPA’s stricter which allows 2254(d)(1). to” § clause. See U.S.C. Al- reversal if the state courts’ decisions though appears applied that the state application” courts an "involved unreasonable of the entirely legal incorrect standard assum- correct federal rule. Id. As statutes. criminal in Arizona’s fled Gomez; BURNSIDE; Francisco Robert noted, § 13- A.R.S. Feldman Justice Chief Individually, Arnett, on behalf of Ray trial 703(G) requires specifically similarly circum- others “any of and all consider themselves judges to judge’s Lingenfelter; offense.” Ron situated; stances Charles *23 therefore, rea, mens Williams, neglect Individu- Crues; R. Charles misapplication only a was and all ally, themselves on behalf also a defiance but precedent Court situated, similarly Plaintiffs- others unreasonable- statute, enhancing the state Appellants, Eddings violation. ness of clearly proffered Second, Lopez —in- CORPORATION, PACIFIC KIEWIT miti- as a rea deed, mens emphasized —his Does, Corporation; Delaware Lopez focused Although factor. gating Defendants- through 100 inclusive. during the good his character primarily Appellees. coun- hearing, his mitigation aggravation/ exclusively on intent No. 04-57134. almost sel focused hearing. sentencing throughout of Appeals, States United trial to the fact, statement in his last Ninth Circuit. imposed, was the sentence before 16, 2007. Argued Feb. attorney said: important single most the one I think 20, 2007. June Submitted case, here, is that there’s in this thing 20, 2007. Filed June all, George that showing, at been ... I baby to die[.] that ever intended everything points say that
would intent, if were-his
contrary. That you facts before be different
there would circumstances, I think
and, these under enough by punished to be going
he’s has the Court sentence
getting the impose. argument Lopez’s intent
Given most single one thing “the
the last —and of- attorney his thing” important —that judge’s and mitigation, fered failure Supreme Court’s
the Arizona objectively unreasonable.
consider it conclude
I would therefore AEDPA on relief under
entitled to claim, grant I and would Eddings
certified respect to corpus habeas writ of Ari- claim, case to the remanding his resentencing.
zona courts