Robinson v. Schriro

perhaps were never even contexts and

made, unreliability given the of the wit- court’s decision to

nesses. The Hawaii materially less reliable evi-

exclude such

dence did not amount to an unreasonable clearly federal

application established

law.

IV application

The Hawaii Court’s

of Chambers was not unreasonable. We

reverse the district court’s decision to

grant § petition. Christian’s 2254 habeas

REVERSED; PETITION DENIED. ROBINSON,

Fred Lawrence

Petitioner-Appellant, SCHRIRO, Director, B.

Dora

Respondent-Appellee.

No. 05-99007.

United States Appeals, Court of

Ninth Circuit.

Argued Dec. 2007.

Submitted Feb. 2010.

Filed Feb.

General, Jeffrey (argued), A. Zick As- General, Attorney Capital Litiga- sistant Section, Phoenix, AZ, respon- for the tion dent-appellee. FLETCHER,

Before: B. S. MARSHA BERZON, B. and JOHNNIE RAWLINSON, Judges. Circuit by Judge BETTY B. Opinion FLETCHER; by Judge Dissent RAWLINSON. FLETCHER, Judge:

BETTY B. Circuit ap- Petitioner Fred Lawrence Robinson peals the district court’s denial of his Peti- Corpus. tion for of Habeas Writ imposed by faces a death sentence state of Arizona for the murder of Sterleen sought Hill. Robinson relief from his sen- grounds tence and conviction on ten in his petition to the Following district court. petition, denial of the the district court granted a appealability certificate of as to issues, four subsequently we certified five appeal. additional issues for We jurisdiction pre-AEDPA ap- have over this § peal pursuant to 28 1291 and U.S.C. part part reverse and remand district court’s determination. We hold arbitrarily the Arizona courts found in an Robinson committed the murder cruel, heinous, especially man- Eighth ner in violation of the Amendment Robinson received ineffective as- sentencing sistance of counsel at in viola- tion of the Amendment. Sixth We reverse the district court’s denial of those claims Phoenix, AZ, McGillicuddy, Patrick E. and remand to the district court for issu- for the petitioner-appellant. corpus ance of a writ of habeas striking Goddard, Terry General, cruel, Attorney application Kent hei- Cattani, Counsel, nous, Capital Litigation depraved aggravating Chief -factor to Section, Nielsen, Attorney ordering J.D. Assistant Robinson and sentencing new Ralph affirm the district court’s ers forced Sterleen and to lie face- proceeding. We down on the floor of their bedroom and remaining claims in a denial of Robinson’s bound their hands and feet with electrical disposition filed concurrent- memorandum cords and neckties. The intruders re- ly opinion. with this

peatedly money asked where the was and I. Factual and Procedural through searched the bedroom closet and

Background dresser. When Sterleen asked that her up, feet be covered the Hills were both A. Crime1 shotgun. Ralph shot the back with a 8,1987, Robin- p.m. At around 6 on June injuries, survived with severe but Sterleen California, Banning, son drove from girlA died. who lived across the street friends, Yuma, Arizona with two Theodore gunshots heard what sounded like Washington (‘Washington”) Jimmy outside, footsteps gravel then heard on the (“Mathers”). Lee Mathers Earlier “hurry muffled voices say up,” a car door afternoon, son, Andre, Robinson told his slam, driving away. and a car going that the three men were to Yuma to Shortly shootings, Deputy after the Ho- (“Susan”), if Hill see Susan teles, who was responding to LeSean’s wife, common law was there. As Andre call, emergency saw Robinson driving near on, looked the three men loaded two hand- passed Hills’ house. When Robinson Robinson’s car. guns gun shot into Hoteles, Robinson smiled and accelerated Hill p.m., At around 11:30 Sterleen passed. apprehended as he Robinson was (“Sterleen”), stepmother, Susan’s heard shortly car thereafter on a road near house in Yuma. sounds outside the Hills’ Deputy the Hills’ home. Hoteles found investigate, her son to She told LeSean in pants pock- several bullets Robinson’s approximately saw no At but he one. apprehended ets. Mathers was the next 11:45, someone knocked on the door. Hill, day after Susan who had heard about it, a man opened When LeSean identified way shooting the and was on her to Yuma himself as James and told LeSean that he in stopping Banning, after saw Mathers Hill money Ralph (“Ralph”), had some walking along the road in the direction of and LeSean’s father. LeSe- Susan When Banning. Washington, who had called his opened accept money, an the door to the girlfriend at 2:00 a.m. on to June 9th tell man, the whom LeSean believed to be a Yuma, in her that he was stranded was man, attempted grab black to him. LeSe- apprehended Banning days la- several escaped the man’s grasp, fled the ter. house, neighbor’s and ran to a house to call Subsequent shootings, police to the the the sheriff. pieces found several the house, people

As fled two house, LeSean surrounding Hill including fields the the home. of these was later entered One shotgun, un- spent Robinson’s several identified'by Ralph shells, as a black man with a a spent shotgun cylinder, revolver bullets, red bandana who was not Robinson. bag containing several and a coat Ralph say they heard the intruders appeared belong Washington. to agents they and that want- police were narcotics The also found evidence Robin- car, shells, shotgun drugs money. including ed the and the The intrud- son’s box Robinson, noted, appeal. Except as we base our recitation of tence on direct See State v. opin- (1990). on the the facts Arizona 165 Ariz. 796 P.2d 853 upholding ion Robinson’s conviction and sen- (on wood, probably- which hairs California. Two men a red entered bandana found), other, were Mathers one belonging to house after the threatened Su- it, Hills’ address on piece paper 11-year-old with san’s sister and niece with been Rob- which written probably handguns, had up and tied their hands with inson. stockings. Approximately two la- minutes house, by ter Robinson entered which home, police of the Hills’ front already time niece had been untied. they footprints found which believed be- Susan, him to Robinson had the sister take Robinson, although longed they did not hiding was in the who bedroom closet. expert prints. have a evaluate forensic stockings Robinson off then cut the evidence, however, There no that Rob- hands, sister’s to return told her fin- inson had been inside home. No room, living spoke to Susan for about found gerprints his were inside the conversation, During half an hour. house, shotgun, any or on other on the Robinson tried to make Susan believe that items to have been believed used he missed and wanted her to her come Moreover, neither shooting. LeSean nor him, back but he also told Susan that he Ralph having Robinson Hill identified as had come the intention of killing with her intruders, though been one of even and her sister and that the thing that Ralph knew Robinson was shown a stopped him was that Susan’s niece was photo lineup containing photo. day,

there. The next left with Susan Rob- B. The Trial inson for Banning.

1. Guilt Phase The in January second occasion was Philadelphia after together. The men were tried Susan went three prosecution’s theory stay family with telling trial was that without recruited where she Washington going. Robinson had When Robinson eventually her, him to go kidnap to with Yuma to he went to Mathers located Phila- prosecution’s Mathers, Susan Hill. The delphia evidence es- with lured Susan to him brought guns ruse, her, that Robinson had through tablished grabbed and took her Yuma, on his had been in trip present to Banning. back to house, front and of the Hills’ had driven All three were found guilty defendants away shooting. But prosecu- after the the murder, first-degree attempted of first-de- tion argued presented neither nor murder, gree aggravated two counts of that the Robinson entered residence or assault, first-degree burglary, and armed participated shooting. in the actual In robbery. fact, Ralph specifically testified that the person he saw was not Robinson. Addi- Sentencing Phase tionally, prosecution presented the no evi- dence argument that had in- Robinson prosecution The changed theory its Washington structed Mathers to kill case sentencing. theory the The new Hills, the much less tell them to how do so. that Sterleen died as result of a drug deal gone Accordingly,

As bad. further evidence of Robinson’s mo- tive, prosecution statutory presented argued aggra- two prosecution evidence of (1) vating two other occasions on which circumstances: defendants attempted expectation committed offense in get Susan return to him. time, receipt something pecuniary first in June Susan was (2) value, staying Holly- with her sister North the defendants committed cruel, nesses, in an especially including Major the offense hei- Ralph Ogden, nous, Additionally, manner. deputy chief for the Yuma County Sheriffs specifically prosecution argued Ogden office. testified about statements possibility the conviction rested made himto Robinson’s co-defendant upon felony-murder mitigating was not a arrest, Washington after the but the Ari- in this case circumstance because there Supreme zona later deemed this was no specific doubt the defendants’ testimony inadmissible under the Confron- kill. intent to tation Clause. memorandum, sentencing Robin- According Ogden’s second-hand ac- attorney, son’s Robert Roberson made sev- count, Washington Robinson told when First, arguments. eral argued Roberson they they arrived Yuma that going were that the opinions Court’s En- dealer, to “knock off a dope take his coke Florida, mund v. 458 U.S. 102 S.Ct. and take the cash.” He also instructed (1982), 73 L.Ed.2d 1140 and Tison v. them Washington that after and Mathers Arizona, 481 U.S. 107 S.Ct. gone house, had up to the Washington (1987), against L.Ed.2d counseled sen- door, would knock on the tencing Robinson to death that when because Robin- it, somebody opened son was not at the scene of the the two men would killing prosecution and the could not show down,” enter “put people meaning beyond a reasonable doubt that Robinson “get them in chairs or whatever.” At that intended to kill or acted with a reckless point, Robinson would enter because he Second, indifference to human life. Ro- knew where the cocaine and the money argued prosecution berson that the could were located. According Ogden, Wash- prove statutory aggravating cir- ington told him that there was no specific beyond cumstances a reasonable doubt. plan to kill anybody, but that Mathers was Third, argued he statutory two miti- carry shotgun and Robinson told his (1) gating applied: circumstances “if accomplices, things get rough, shoot Robinson was a participant minor 'em.” offense, reasonably that it was not Brock, foreseeable that Sergeant Roy Robinson’s conduct would also with the Yuma grave cause or create a office, risk of death to County Sheriffs testified at the sen- person. Finally, briefly another he argued tencing phase about statements that Rob- that Robinson could not be sentenced to inson had made to him after the murder. death because he was convicted under the These statements pur- indicated that the felony murder rule. Roberson did not pose trip to Yuma “rip was to off’ present any non-statutory mitigating fac- drug some according dealers. But to Rob- tors in sentencing memorandum. inson, Washington and Mathers drove to Yuma a different car single

The court held a and went to the aggravation/miti- house, gation hearing wrong they for the three where proceeded defendants. prosecution presented The several wit- commit the crime.2 Shirer, county possible 2. The also called Dr. Bruce a less that she was knocked uncon- pathologist performed autopsy who on shortly being Ralph scious before shot. Hill Hill Sterleen and had testified at trial. Shirer aggravation/mitigation testified at the hear- testified that there was no evidence of head ing, testimony only but his was directed to- trauma that would indicate that Sterleen had sentencing non-capital ward for the offenses unconscious; been knocked on cross-exami- for which the defendants were convicted. acknowledged nation he that it was neverthe- or to conform wrongfulness of his conduct the state’s cross-examined Roberson law requirements of any call of his own. his conduct witnesses, not but did (2) not under Robinson was again impaired; Roberson not argument, closing In his (3) duress; par- Robinson was not a minor factors and aggravating focused on the (4) crime; reasonably in the it was county ticipant that the had to find urged the court a that the offense would create beyond factors foreseeable aggravating proved not (46 (5) death; age Robinson’s grave to miti- risk of respect doubt. With a reasonable murders) was not a at the time of the sentencing relied on his gation, Roberson (6) factor; “no other miti- mitigating memorandum, argu- making brief presented by gating circumstances were have a histo- “[didn’t] ment that Robinson Because the defendant for consideration.” “a good and was ry harming people” of statutory at one the trial court found least Rober- Altogether, apparently.”3 father mitigat- and no aggravating circumstance just of argument consisted closing son’s circumstances, it bound under ing transcript. double-spaced of pages over ten then-existing apply Arizona law to sentenced Robinson The court penalty. See Ariz.Rev.Stat. 13- death three sentencing judge found death.4 703(E) (1988) (current version Ariz.Rev. justifying statutory aggravating factors 13-751). § Stat. (1) procured the sentence: by payment commission of the offense Appeals and Federal C. State receipt something pecu of of promise or Corpus Habeas Review (2) defendants; niary by the other value Appeal 1. Direct the offense for the Robinson committed All their con- receipt something appealed of mone three defendants purpose of (3) value; victions and sentences. The Arizona Su- tary Robinson committed cruel, conviction, heinous, preme in an Court vacated Mathers’s the offense Mathers, respect manner. With to mit State v. 165 Ariz. 796 P.2d (1990), convictions of upheld circumstances the court found that but igating Washington, v. Robin- capacity appreciate the Robinson State They newspaper following extent Rober- had routes. I don’t think 3. The is full argument mitigation: closing ogre on son’s we can show Fred is some kind of who redeeming has no value. I total —and mitigating I can cite a whole lot of factors raise, think from the fact he was able to Fred I can cite a as as is concerned. far testimony, I Fred, from what could see from bearing. couple may have a little good presumably pretty kids and the other at least as far as the evidence we have court, just 2. He is history children as well as those able received in doesn’t have They love harming people. may history, to care for them. He is able to. He have a as evidence, mitigation by going him. I think after Susan that's little shown being shenanigans him. involved in some anybody way, he never hurt as far but 4. Under Arizona law at the time of Robinson’s testimony. good as we know the He is a jury, sentencing, judge, deter- trial apparently. He has—I don't remem- father aggravating ap- 9, 12, mined whether circumstances testimony kids ber what the is— plied. Although Supreme Court invalidat- something by several different women. He Arizona, sentencing Ring in ed this scheme custody apparently has of almost all of 584, 122 S.Ct. 153 L.Ed.2d 536 U.S. testify had was them. Even Susan Fred (2002), apply retroactively Ring good They 556 does not father. The kids loved him. of, fed, clothed, to cases on collateral review. Schriro Sum- were taken care sent off to merlin, 348, 358, 124 S.Ct. go The kids hav- 542 U.S. to school. testified about school, (2004). ing go getting 442 homework done. 159 L.Ed.2d (1990). son, court, Ariz. 796 P.2d making the same arguments that he Court, Supreme the Arizona Before Robin- appeal made on direct adding and a claim argued evidentiary rulings son that various for ineffective assistance of counsel. The in the trial court were error and that his superior same judge court presided who “(1) sentence should be vacated because over Robinson’s presided trial also over killing pecuni- was not committed for post-conviction Robinson’s proceedings. (2) ary gain, killing was neither de- The court evidentiary conducted an hear- heinous, cruel, praved nor it nor ing on the ineffective assistance of counsel hearing a further required regard- claim. The court testimony heard from ing presence of Tison and Enmund Gonzales, Juan officer; parole corrections at Although considerations.” Id. 858. it Roberson, counsel; Robert Robinson’s trial sentence, upheld Robinson’s the court held and Dr. Roy, Tod a psychologist who ex- only two of the three aggravating amined Robinson in preparation for the by sentencing circumstances found evidentiary hearing. by court supported were the evidence. Id. The court 861-63. held that the testi-

mony Major Ogden as to the statements a. Gonzales by Washington made to him was inadmis- Gonzales’s testimony focused on Robin- sible because it violated Sixth right good Amendment son’s behavior in prison. confront witness Gonzales result, against him. Id. at 861-62. As a testified that frequent Robinson had con- insufficiently the court set aside as sup- tact with family, members of his both ported sentencing finding court’s that mail by telephone. Gonzales also tes- expec- Robinson committed the murder in tified that Robinson only had two minor something tation of pecuniary value. disciplinary problems years in four Id. at 862. As for mitigating circum- Five-One, was classified as Level the low- stances, stated, the court “Robinson of- security est possible level for a death row mitigating fered no circumstances and we inmate, “which means ... they do what agree trial with the court that none ex- they are told get and never in trouble.” result, ist.” Id. at 863. As a the court Gonzales testified that Robinson was an mitigating held that “no circumstances ex- insulin-dependent diabetic and that he got ist vacating so as to warrant ... Robin- inmates, along well with other went son’s ... death Id. at 864. ].” sentence! church regularly, adjusted and had well to The court also concluded that “imposition in prison. life Gonzales believed that Rob- penalty of the death case is inson would do if placed well he were proportional imposed sentences general prison cases,” population. similar and that the district court did not commit fundamental error. Id. at

865. b. Roberson

2. State Post-Conviction Roberson testified about his educational Proceedings

Relief professional background and about his preparation guilt penalty phas- for the brought Robinson then a petition for post-conviction relief in Arizona state es of the trial. At the time of the eviden- above, explained wrongly As Robinson's counsel did zona believed that argue very briefly statutory mitigating in fact for two Robinson had offered no circum- mitigating circumstances and two nonstatuto- stances accentuates the feebleness and ry mitigating brevity circumstances. That the Ari- of counsel’s effort. at the time not think practicing been for but said that he did

tiary hearing, he had years, necessary his time more it was twenty splitting based on what Robinson about criminal civil Finally, and equally acknowledged or less between had him. he told work, although he was not thought, any and that he call on Rob- did not witnesses sure, at least he tried one death that had inson’s behalf. prior to Robinson’s. He ex-

penalty case Roy c. being assigned that after to Robin- plained case, taking he new civil stopped son’s Dr. as to his Roy testified the results of that would have more time matters so he psychological evaluation of Robinson. apply not for funds for Robinson. He did Roy four- preparing report, his conducted investigator, noting that private for a teen and hours face-to-face interviews were during days doing we all “back those testing Robinson with and interviewed investigation.”6 much our own pretty Robinson’s father. Likewise, hire medical he did not or men- Roy experiences described “number of experts, stating that he never tal health development that I think [Robinson’s] deficiencies, any that observed mental people[, contributed to how he viewed es- any never “gave [him] Robinson indication pecially in close These in- relationships.” problem was mental that that there some abuse, repeated cluded childhood sexual like and might explore,” that he he repudiation by siblings Robinson’s “any that got inkling” never there was father, physical his and and emotional or “any problem psycho- kind of mental abuse father and stepmother. his explanation might ... led logical have Roy’s report, According to Robinson was in this case.” to Fred’s involvement born spent years his formative Turning specifically penalty poor, community rural in Tex- segregated acknowledged any phase, Roberson as. his close He described childhood as could type mitigating pre- be parents knit he separated until his when just not sentencing, sented the five parents’ His nine or ten. divorce was circumstances, statutory and that the non- particularly difficult for because Robinson statutory potential included re- factors for his rejected younger father children habilitation, remorse, family ties. He open separat- court and the were children full acknowledged also that the extent of ed. and the went siblings Robinson older Robinson, investigation talking his father, to live younger with his and the explained did not he that he feel that siblings stayed with his mother. he could evidence of remorse or family divorce, ties Shortly because Robinson insisted he after the fa- was innocent two of his had ther His had stepmother sons remarried. new against He acknowledged they testified him. five children of her own all lived school, medical, that he did not in a subpoena very small house. Robinson felt that mental, employment records he and biological siblings for Robin- were treated son, any but did provide explanation step-siblings; example, worse than his for why for he did not do so. He the step-siblings acknowl- ate meals first and Robin- edged hindsight siblings he have son leftovers. should and his ate the a psychologist psychiatrist, reported consulted with a being beaten agreed investigators.” 6. The court "it was rare for outside rather grant request the court either to hear or approximately every switch or a belt other tlement. That would leave individual reported by minor infractions day confused, his with—who was somewhat stepmother. Things improved when the terms of what expect. It would also house, family larger although moved to create a of dependency sense on these particular, conflict. In there was still people, they because are the ones that high was in school he when Robinson power, power have the and that some- car; money to save for a not twen- worked times is utilized in inappropriate ways. it, tyfour purchased hours after he his conviction, At the time of his him father told that he and Robinson’s unemployed had been receiving dis- stepmother had decided Robinson ability approximately benefits for seven give would have to his car to an older years. He became disabled as a result stepbrother who in their estimation needed motorcycle accident which left him with a going it more he to college. because pronounced limp. Robinson also claimed Robinson continues to resent his father for that he injury suffered a head as a result this, doing although says forgave he he accident, according Roy, but Rob- him. inson’s medical records after his accident inci- experienced Robinson also several report any “did not disturbances First, step- dents of sexual abuse. his suggest organic would brain damage.” boyfriend mother’s sodomized him at very large Robinson has a family. him knifepoint and threatened with death addition to siblings, reported seventeen he Second, anyone. if he told when he was having fifteen children of his own with five old, years about nine he witnessed his different women. Several of these rela- raped by a being sister white man. Final- tionships ended or problems had because ly, young boy as a he had an aunt who the women cheating were on him. repeatedly performed oral sex on him and Robinson claims never to have used forced him to do the same to her. Roy Dr. drugs. conviction, At the time of his he evidentiary remarked at the hearing that had problems, numerous health including very Robinson “was tearful and reluctant diabetes, high-blood pressure, a broken to talk about rape]. my [the And it was hip, and poor vision. He had never been I impression person that was the first evaluated or treated a mental health whom he Roy had disclosed that.” de- provider care until post-conviction his re- scribed the significance type of this lief evaluation. incident to a child: significant It’s Roy diagnosed Adjust- Robinson with because— (Axis rape I) of that nature —it brings very ment Disorder with Anxious Mood quickly power- to one’s awareness how Personality and Borderline Disorder with (Axis power Dependent II), less one is over the of someone Features a character else, for one. And I believe his life was disorder that pattern leads to a of unstable if anyone. threatened he told relationships One’s of the psychological because achievement, things one’s desire to do defense Roy mechanisms its sufferers. can arbitrarily they be robbed when report are concluded that Robinson’s us, taken from and for reasons that character disorder from resulted his care- aren’t questionable reasonable and enti- takers’ him disregard for and his efforts.7 diagnosis challenged by Roy’s report This the state's Disorder on her review of and a McCullars, expert, Dr. Eva who based her brief interview with Robinson. contrary diagnosis Personality of Anti-Social ” (3) Hill; and ‘family,’ including Susan Robin- his Roy testified that hearing,

At the rehabilitated,” no evidence that Robinson was there was be potential “had the son The court player crime[.]” concerns about minor were “a although there disability. age and was not ineffec- light of his also found Roberson likelihood a “lack of a failing request psychological that there was also stated tive He hostility towards support accepted a court as true the ... data to evaluation. The had low that Robinson “an antisocial He found that Robinson had people.” finding 81,8which is scoring I.Q. an intelligence, poorly and was ad- personality disorder adults, meaning percentile of at the tenth but found that justed living society,” by be exceeded intelligence “would his have “less- nothing was which would there population adult ninety percent ability right differentiate from ened his Roy that he country.” Dr. also stated this conform his actions with the wrong or to predis- that Robinson had a did not believe time the murder was commit- law” at the violence, towards position propensity noted that there was ted. The court also recidivism, no risk of and that there was suggested that would have to Ro- nothing that he would recommend although he said would be berson that a mental examination him, stay away from because Susan concluded helpful to Robinson. The court strictly to be related to crime “seems Roy’s Dr. examination that the results of relationship in that Susan dynamics [with sentence im- not have “altered the would psychology.” in his own Hill] rejected all Finally, the court posed.” mitigating circum- Robinson’s claims of ultimately court denied Robinson’s stances. entirety. regard to petition in its With challenge application Supreme subse- The Arizona Court cruel, heinous, petition denied Robinson’s for re- quently the court stated aggravator, conduct opinion.9 view without except “[n]othing presented has been here Corpus 3. Federal Habeas sentencing proceedings reiteration later findings and of this court which were pe- habeas preliminary Robinson filed upheld appeal,” on which did

reviewed 14, 1996, in he re- tition on March which a colorable claim.” “present not grounds sought relief on ten quested was appointment ap- re- of counsel. Counsel similarly The court was unconvinced May and on amended pointed claim of ineffective as- garding Robinson’s Robinson’s amended petition The court found that was filed. sistance of counsel. (1) nine for relief: sentencing petition made claims Roberson was not ineffective at (1) counsel based on much ineffective assistance of pretty apparent “[i]t because (2) interest; conflict of a due family going attorney’s his that the defendant’s on the trial court’s mitigating process testi- violation based to be the source of much (2) requested lesser included give was “a refusal to mony”; (3) instruction; “procurement father” was balanced offense good caring circum- ty- pecuniary gain” aggravating “aggressive evidence of Robinson’s (4) unconstitutionally vague; rannically concerning attitude stance was possessive I.Q. mentally petition and the Arizona retard- denied 8. An of 75 is considered ed. petition for review. Robin- Court denied petition not at issue in this son's second Petition for Post 9. Robinson filed a Second appeal. Superior Arizona Conviction Relief in February trial court on 1998. The state prosecution’s pre-AEDPA inconsistent motive theo- Stat. governs law our ries violated his Fourteenth Amendment consideration of the merits. Correll v. (9th Cir.2008) Eighth Ryan, rights; violation F.3d 941-42 rights (citing 320, Murphy, Fourteenth Amendment because the Lindh v. 521 U.S. 327, 2059, Arizona Court failed to conduct a 117 S.Ct. 138 L.Ed.2d 481 cert, (1997)), analysis re-weigh aggra- harmless error or denied sub nom. Schriro v. — (6) Correll, circumstances; —, vating mitigating 903, U.S. 129 S.Ct. 173 (2009); application “especially heinous, Wood, L.Ed.2d 108 v. 114 Jeffries (9th Cir.1997) 1484, (en banc). cruel depraved” aggravating or circum- F.3d 1494 pre-AEDPA law, stance to facts of this case violated the Under we owe no defer- (7) Amendments; Eighth and Fourteenth ence to the state court’s resolution of ques- Eighth a violation of his and Fourteenth tions of law or questions mixed of law and rights Amendment in- fact. Taylor, because there was See Williams v. 529 U.S. killed, 362, 400, 1495, sufficient evidence that he attempt- 120 S.Ct. 146 L.Ed.2d 389 (8) (2000). kill, kill; ed to or intended to ineffec- trial Whether Robinson’s counsel tive assistance of at sentencing; question counsel was ineffective is a mixed of law and Arizona’s execution statute violated and fact reviewed de novo. Summerlin v. Schriro, (9th Cir.2005) post 623, the ex facto clause and the Four- 427 F.3d 628 (en banc) Rios, Eighth (citing teenth and Amendments. 299 F.3d at 799 n. 4). review We the district court’s findings 8, 1999, August On the district court of fact for clear error. Lambright v. 1, 2, 3, dismissing issued order Claims Schriro, (9th Cir.2007) 1103, 490 F.3d 1114 4, procedurally and 6-A as barred and cert, curiam), denied, (per 552 U.S. withdrawn, Claim 9 as ordering brief- (2008). 128 S.Ct. 169 L.Ed.2d 726 ing on the merits of the remaining issues. Dismissals based on procedural default are 17, 2005, On March the district court de- Nevada, reviewed de Vang novo. 329 nied concluding relief that Claim 5 was (9th 1069,1072 Cir.2003). F.3d procedurally 6-B, barred and that Claims 6-C, 7 lack and 8 merit. The court also III. Discussion concluded Robinson was not entitled evidentiary opinion, to an this we consider hearing district court whether the Arizona arbitrarily on state courts and capri- ineffective assistance of counsel. The ciously applied the granted aggravating district court a certificate of ap- circum- cruel, 6-A, 6-B, 6-C, especially stance of pealability on Claims heinous or and 8. de- praved conduct to subsequently granted We a certificate of Robinson and whether appealability 2, 3, 4, Robinson received ineffective on Claims and 5. assistance of

counsel at sentencing. Because we decide II. Standard of Review favor, both issues Robinson’s we reverse the district court. We review the district court’s de novo, nial petition of Robinson’s habeas de Especially Cruel, A. Claim 6: findings the district court’s of fact for Heinous, Depraved Rocha, clear error. See Rios v. 299 F.3d Aggravating Factor (9th Cir.2002). 796, 799 n. 4 Because Rob inson’s federal petition habeas was filed In his federal petition, habeas argued cruel, heinous, before the effective date of the Antiterror Penalty factor, ism and Effective Death Act of or aggravating Ariz.Rev. 13-703(F)(6) (“AEDPA”), 104-132, (1988), § Pub.L. No. 110 Stat. was unconsti- Bar 1. Procedural The district to him. applied tutional as parts: three claim into court divided doctrine is procedural The bar (A) Petitioner evidence Insufficient independent and ade subcategory of the the vic- reasonably foresaw intended Boyd v. ground doctrine. See quate state arbitrary in an suffering resulted tim’s (9th Cir. Thompson, F.3d of Petitioner’s finding in violation cruelty 1998). is to purpose of the doctrine and Fourteenth Eighth rights under by giving it the state’s interests protect Amendments; correct its own errors. opportunity (B) of Petitioner’s Insufficient Thompson, 501 U.S. See Coleman in an resulted in the crime involvement 2546, 750, 115 L.Ed.2d 640 111 S.Ct. in vi- finding arbitrary heinous/depraved (1991). doctrine, a federal Under under the rights olation of Petitioner’s a state ordinarily will not review court Amendments; and Fourteenth Eighth court would find ruling court if the state factor, to an (C) (F)(6) pursuant as claim barred that the was aggravating case, adequate procedural suf- state independent failed to applied to Petitioners discre- rule.10 Id. ficiently channel the sentencer’s and Four- Eighth of the tion in violation recognize types proce two We Amendments. teenth An implied. ex express dural bars: rejected claim 6-A as court The district peti occurs when the press procedural bar Following briefing defaulted. procedurally has his claim to the state presented tioner claims, the remaining on the merits relied on courts and the state courts have that sufficient evi- court concluded district deny rule to or dismiss procedural a state findings supported the state courts’ dence bar, on implied procedural the claim. An and the the murder was senseless hand, petitioner the other occurs when result, that the helpless, and as victim to fairly present failed to his claims has factor prong aggravating depravity highest state court and would now be But applied to this case. properly from procedural a state rule barred if to note that even court went on Stewart, See, Beaty v. 303 doing e.g., so. unconstitutional, the depravity finding was (9th Cir.2002). 975, F.3d 987 the state error was harmless because concluded that sup- The district court cruelty finding sufficiently courts’ was pro subject implied 6-A was to an apply aggra- to Claim ported by substantially it cedural bar because was The court also vating factor Robinson. cruelty issue raised on hold different from the 6-C on the merits. We denied Claim appeal, direct and Arizona Rule Crimi 6-A and 6-B were ade- that both Claims 32.2(a)(3) prohibit nal Procedure would and entitle Robinson to quately exhausted court to returning cru- Robinson from to state especially we hold that the relief. As disagree with the el, heinous, factor exhaust the claim. We depraved aggravating 6-A district court’s conclusion that Claim unconstitutionally applied to Robinson was 6-B, direct we do was not exhausted 6-A and pursuant Claims conviction to the Arizona appeal of his not reach Claim 6-C. 495, 2639, (1986), court, however, 91 L.Ed.2d 397 will review the 106 S.Ct. 10. The federal petitioner procedural cause government can show either waived the claim if or if the Coleman, 750, Johnson, at prejudice, default, 501 U.S. see v. 290 F.3d see Franklin miscarriage S.Ct. or a fundamental 1223, 1230, (9th Cir.2002). Carrier, justice, Murray 477 U.S. see conclude, result, cruel, especially heinous, Court and as a or depraved ag- implied procedural applies. that no bar gravating factor applied was arbitrarily to Jeffers, in violation of the Eighth and claim, In order to exhaust his Robinson Amendments, Fourteenth because there required both the factual was no principled way to distinguish Jef- legal basis for the claim to the state fers’s conduct from that in other cases Thompson, court. Weaver v. 197 F.3d where the Arizona courts had found that (9th Cir.1999); Gray see also v. Neth- the behavior at issue especially was not erlands, 152, 162-63, 518 U.S. 116 S.Ct. depraved.12 heinous or Id. at 483-85. (1996). so, 135 L.Ed.2d 457 To do addition, Robinson argued that the murder required specif- reference was not cruel it because did not provisions ic of the federal constitution or involve “the senseless or sadistic infliction cite to federal case law provide and to great pain” pointed out that he was statement of the facts that him entitle not in the house and participate did not 162-63, Gray, relief. 518 U.S. 116 S.Ct. shooting.13 actual 2074; Lyons Crawford, 232 F.3d (9th 668, Cir.2000), amended, 670 247 F.3d The district court erred concluding (9th Cir.2001). 904 that, in his direct appeal of his conviction In Opening the Brief he filed on Court, direct to the Arizona Supreme Robinson appeal of his conviction to the fairly Arizona did not present a claim based on lack Court, Supreme Robinson argued that “the of intent foreseeability. or Robinson ar- imposition of the death penalty gued was in that finding “the that his acts consti- violation ... of cruel, the Constitution of the especially tuted heinous and de- especially United States” because the cru- praved activity unconstitutional,” is citing el, heinous, depraved aggravating or factor to in support. pages later, Two he Jeffers applied arbitrary was manner. In again imposition asserted that “the of the support position, of his Robinson cited death penalty in this case was arbitrary Jef- Ricketts, (9th and, 832 F.2d 476 Cir. capricious therefore, unconstitu- fers 1987), rev’d sub nom. Jeffers, Lewis v. tional.” part As of same discussion in 3092, brief, 497 U.S. 110 S.Ct. 111 fairly L.Ed.2d his he also presented the factu- (1990).11 Jeffers, 606 claim, we held that the al basis for his stressing that “[he] Supreme 11. The fact that the argued Court later held application especially that of the cru- aggravating that el, heinous, the circumstance was not depraved or factor was unconsti- applied in violation of Jeffers’ constitutional (1) tutional because there was no evidence rights, Jeffers, 497 U.S. 110 S.Ct. suffered, that Sterleen Hill there was change 111 L.Ed.2d analy- does not the no evidence participated Robinson in the sis. The citation to relevant to this Jeffers assert, specious murders. It is to as the dis- put discussion because it the state court on does, sent that agrees Robinson now that Mrs. arguing notice that Robinson was that his Hill sufficiently support suffered cruelly to sentence violated the federal constitution. Further, finding. arguments Robinson's two Moreover, at the appeal time Robinson’s cruel, against application especially decided, opinion the Ninth Circuit in Jeffers heinous, depraved independent or factor are yet had not been overruled. of each other. Even if Robinson had aban- argument doned the first about Mrs. Hill’s Supreme previous- 12. The Arizona Court had suffering why we fail to ly see the dissent held that did Jeffers not commit the murder —as especially suggest abandoning seems to Jeffers, argument in an cruel manner. — F.2d at 483. would mean that he never made second argument participation. about his briefing appeal in the direct of his conviction to the Arizona He the same part presented no claim. thus claim in the house had even not that, of partic- his lack given he does shooting.” Earlier his in the actual now— murder, finding especial ipation brief, against application arguing while cruelty, depravity heinousness and violated cruel, heinous, fac- or especially rights. his tor, “noted that did not already [he] he had killing, did not intend in the

participate It matter does not die,” “was not involved di- anyone case, State v. intervening now cites an shooting.” argu- rectly These with Carlson, (2002), P.3d 1180 Ariz. the federal claim. clearly exhausted ments specific holding cruelty for the cruel, heinous, or required present prong “especially Robinson was may applied not be depraved” in the same of de- factor to a amount arguments defendant intent reasonable support tail courts of his absent to the two claim; Carlson postdates foreseeability. was re- both federal constitutional he and his quired appeal state court Robinson’s direct amended federal so he could not petition, factual basis his federal habeas legal and importantly, cited clearly claim. Robinson have it. More Robin constitutional argument was by citing issue son’s state-court raised the constitutional cruel, heinous, depraved” “especially held that applica- a federal case that factor as a cruel, heinous, or whole could not be tion constitution peti- ally applied factor to him because there was no depraved aggravating Eighth and or reasonable tioner Fourteenth intent foresee violated therefore, ability. His argument, the U.S. Constitution. He encom Amendments of Supreme the Arizona partic- passed also noted his lack of rule that the specifically Carlson.14 in in ipation shooting specifically adopted in of his Court support the argument discussing Supreme 14. distorts the Robin- relevant Court dissent two deci- sions, briefing appeal son in his on direct of expanded made Robinson on the facts dem- Supreme his conviction to the Arizona Court. onstrating foreseeability. lack of intent and cruel, "especially the hei- There he articulated Contrary suggestion, to the dissent's the fair nous, depraved” single a factor as factor or reading briefing of the court state that (as is). of course under Arizona law it cruel, argued "especially Robinson that the impose separa- rigid to a The dissent strains heinous, depraved” as a and factor whole was arguments tion in on the Robinson's Arizona unconstitutionally applied light of Robin- briefing, every insisting that killings. participation son's lack in the of argued partic- time lack of arguments That Robinson's current elabo- intent, ipation he intended to it relate rate on those made in state court does not depravity prongs the heinousness presentation make his state-court insufficient cruelty prong. the factor but not to the purposes concluding In for of exhaustion. interpretation This is untenable. The two otherwise, ignores governing the dissent law together, prongs in a are discussed section standard substitutes an exhaustion that is "Factor brief headed 6 of A.R.S. Robinson's wholly unsupported law. in the case It fails Though argu- 12-703F.” Robinson makes one long to understand that as as the "ultimate suffering regarding the extent of the ment — the question disposition” has remained the cruelty victims—that is directed the court, here, as it has same state and federal prong only, ends this he section of the brief legal theory or "variations in the factual alle- about lack of "not[e]” with final Robinson's urged gations support” entirely are le- in its intent, para- participation concluding or that Connor, 270, gitimate. 404 U.S. Picard v. statement, graph with the "Neither the con- 277, 509, (1971) 438 involved, 92 S.Ct. 30 L.Ed.2d Appel- duct of the others much less omitted); Robinson’s, (quotation and citation ac- marks prove beyond lant factor 1029, Schriro, added.) Lopez 491 F.3d 1040 (Emphasis cord v. doubt.” reasonable Artuz, brief, (9th Cir.2007); McKinney 326 v. F.3d next section of the course of petitioner procedurally a case where the we are not from This is not barred re- invoking viewing clear that he was Vasquez failed to make Robinson’s claim. Cf. see, 254, v. Har- e.g., federal Anderson right, Hillery, 474 U.S. 106 S.Ct. less, 4, 6, (1986) 103 S.Ct. (addressing U.S. 88 L.Ed.2d 598 merits curiam), (per or where L.Ed.2d 3 of claim after determining that additional to a “general appeal consti- petitioner’s change facts did not substance of claim vague put guarantee” tutional was too Court). addressed California Supreme on notice of the federal the state court Merits Claims 6-A 6-B claim, Shumway Payne, 223 F.3d cf. (9th Cir.2000) (holding that mere that Robinson asserts insuffi process” “due and citation to

reference to supported cient evidence the Arizona Su that a state ease referenced feder- law preme application of the especially Court’s for a other proposition al constitution than cruel, heinous, or depraved aggravating the case cited to for which applied defendant, factor. To be to a an put state court was insufficient to the state aggravating factor must proved beyond be claim). court on notice federal Rob- Summerlin, a reasonable doubt. 427 F.3d violation of narrow alleged inson at 642. corpus Federal habeas relief does specific guarantee right constitutional —the law, not lie for mere errors of state but arbitrary application to be free from the of only for federal constitutional violations. factor, aggravating leading an to the arbi- Jeffers, 497 U.S. at 110 S.Ct. 3092. penalty trary imposition death —and Therefore, grant relief on habeas case, Jeffers, cited a court federal held insufficient evidence claim we must con right way violated because of the sentencing clude that finding court’s cruel, heinous, in which or the murder was committed an espe depraved applied peti- factor was heinous, cruel, cially manner alleged tioner in that case. He also beyond a reasonable doubt was not only factual for the claim: the manner of basis erroneous, arbitrary capri but “was so his lack specifically murder and independent cious as to an constitute due participation in the This combi- shooting. Eighth process or Amendment violation.” present nation was sufficient to the bases determination, making Id. In such a claim to state his federal court. applicable standard of review is that of the Accordingly, we hold that Robinson ex- 781, “rational factfinder.” 110 Id. at S.Ct. in state hausted the claim court. 3092; see v. also Martinez-Villareal Lew is, (9th Cir.1996). 1301, this claim 80 1307 Because Robinson exhausted F.3d This court, in the federal means state finding state court review is court’s of an “[a] only Supreme if the Arizona aggravating particular barred circumstance in procedural including a finding by relied on a violation of a state de novo an case— appellate in rejecting particular rule the claim. See Harris v. court that a offense is Reed, 255, 261-62,109 1038, ... ‘especially depraved’ 489 U.S. S.Ct. heinous or —is (1989). case, capricious arbitrary 103 L.Ed.2d In this or if and if 308 no court, supreme appeal, state on re- reasonable sentencer could have so con direct 783,110 jected on the State cluded.” 497 Jeffers, the claim merits. v. U.S. at S.Ct. Robinson, Furthermore, Accordingly, especially P.2d at 858. as the hei- 796 Parke, 359, Cir.2003); son, (9th (2d 1999). Boyko v. 259 F.3d 197 364-65 Cir. F.3d Cir.2001); (7th Thomp- v. 788-89 Weaver performed, for, personally alone let factor is framed nous, cruel, depraved or shows, and the The evidence individually deter- murder. must disjunctive, we argued, only that Robinson finding prosecution sentencing court’s mine that the with fire- depravi- Washington Mathers and drove and heinousness cruelty both present and was applica- find that the to the Hills’ home arbitrary to arms ty were a constitu- the murder constituted the residence when the factor outside tion of Gretzler, 135 any admissible evi- See State Nor was tional violation. occurred. (1983). 1,10 ordered presented 659 P.2d that Robinson Ariz. dence of the Hills. Ma- tying up or murder aggrava cruelty prong supporting such jor Ogden’s statements physical “relates ting factor were deemed inadmissable conclusion during of the victim suffering mental Although Supreme the Arizona Court. Carlson, Ariz. murder.” State year that a earlier there was evidence (2002). contrast, By 48 P.3d sister’s had entered Susan’s Robinson focus on the depravity “heinousness and of Susan after two of house search Id. Robin the defendant.” mental state of associates had first entered the Robinson’s application of both challenges to son’s guns up with and tied Susan’s sister house depravity cruelty and the heinousness niece, anyone Robinson did not harm run At fundamentally parallel. prongs was no evidence on occasion and there bottom, asserts that the state Robinson had instructed his associates Robinson of this prongs of both application courts’ Hence, sister and niece. up to tie Susan’s no arbitrary because there is factor was here at most indicates the total evidence that Robinson admissible evidence that Robinson formulated and initiated at, intended, reasonably or fore present in- Washington to have Mathers and plan agree. Applying the murders. We saw home to locate Susan or vade the Hills’ cruel, heinous, any to bind and murder drugs, plan manner of based on the factor to Robinson the Hills. intended, present murder he neither for, anticipated with reasonable cer nor findings The Arizona Court’s law application of Arizona so tainty, is appeal reflect the lack of evidence on Eighth constitute an arbitrary as to presence ordering at or Amendment violation. Washington it found “was murder. While at least in the Hills’ home” when of the record reveals no

Our review occurred, only that the murder it found argument placing admissible evidence “loaded firearms into his vehicle time the Hills’ home at the Robinson inside and “master- preparation trip” in for the tending prove of the murder or evidence Robinson, 796 P.2d at trip.” minded the ordered the murder of the that Robinson court, however, did not make 864.15 The argued, nor prosecution Hills. The never any finding that ordered specific any presented, that Robinson binding killing Despite of the Hills. and was the entered the Hills’ home that, felony accom- as to murder and although jury the found Rob- structed both 15. We note murder, guilty degree attempted plice liability of first and found both Mathers and inson murder, degree burglary de- in the first first Washington guilty the same offenses. Ei- robbery, aggravated gree, assault caus- armed theory felony accomplice murder or ther a physical injury, aggravated ing serious impute guilt jury to to Robinson allowed the using deadly weapon, verdict assault Washing- through Mathers and the actions of require jury that Robinson did not to find ton. jury in- The entered the Hills’ home. findings points, required lack of on these critical to address whether Robinson in on specific the court relied manner any way anticipated intended or the man- Sterleen’s murder was carried out to which ner of Sterleen’s murder.17 The court did especially cruel and heinous or uphold not foreseeability.18 even address This aggravating factor. This was an apply constitutionally failure to neces- arbitrary application of state law. sary narrowing principle of state law in applying aggravating factor is clearly liability

“There is no vicarious arbitrary, and so a violation of Eighth cruelty capital plan cases absent a Amendment. reasonably intended or certain to cause suffering. plan must be such that Had the Supreme Arizona Court ad- suffering inherently before death must be foreseeability, dressed it could not have occur, reasonably just certain to rationally death, found Sterleen’s let alone Carlson, an untoward event.” 48 P.3d at manner, its foreseeable with reasonable To apply foreseeability as a “[m]ere certainty under state law. The Arizona capital benchmark for death in cases Supreme Court’s decision in State v. Carl- permit aggravators would not to serve son, similarly which involved a murder purpose their constitutional of narrowing by committed accomplices outside of the first-degree the class of murderers who presence defendant, wholly pre- can be sentenced to death.” Id. 1192.16 any cludes rational factfinder from imput- holding that Sterleen’s murder was ing the manner of Sterleen’s murder to beyond proved a reasonable doubt to be Robinson. Unlike the evidence before us cruel, the Arizona Supreme here, the evidence in Carlson made clear relied on the evidence that Sterleen that the defendant ordered the killing of was bound and shooting witnessed the the victim accomplices two whom she murder, prior her husband to her causing drove and let in to the apartment. victim’s Robinson, her mental suffering. 796 P.2d Carlson, 48 P.3d at 1185. Once at 863. As there was no evidence and the apartment, one of finding accomplices court made no Robinson was stabbed murder, present at the time of the victim multiple eyes times with his support cruelty finding the court was closed. Id. The court nonetheless held Supreme 468, 474-75, 16. While the ly. Arizona Court decision 187 Ariz. 926 P.2d 491-92 clarifying degree in Carlson (1996). of foreseeabil- Here there was no evidence that even ity necessary impute cruelty to a defendant intimates that kind of intent or direction. was not announced until after Robinson’s sen- final, tence became as a substantive rule it find, 18.The Arizona Court did applies retroactively petition. to Robinson’s dismissing Robinson's claim Edmund/Tison Towery, See State v. 204 Ariz. 64 P.3d us, appeal not on before that Robinson acted (2003). with "reckless indifference to human life.” Robinson, finding 796 P.2d at 864. This does agree 17. We with the dissent that Robinson's inquiry not address the we are concerned give pass culpa- absence "does not him a on with here: whether Robinson acted with a bility,” post at require but it does certainty specifi- reasonable that Sterleen Hill there be evidence that he intended or antici- cally would be murdered in an cru- pated not the murder but the manner of el manner. The fact that Robinson acted with "cruelty” prong may the murder before the be Thus, Dickens, generally a reckless indifference applied. to human life by in State v. cited dissent, defendant, absent, does though not tell us whether his actions the the had a told certainty gunman by causing the reasonable walkie-talkie that he should of Sterleen Hill's witnesses, knowing leave no full murder to occur and well his ac- occur in the manner it complice would murder the witnesses brutal- did. 1106 time of to determine a found” be- near the the offense properly not “cruelty was

that the plan purposes how state of mind” for of “did defendant’s the defendant cause could not committed and depravity. be State finding murder would heinousness it bungle Dan 844, would 19, have known P.3d Murdaugh, 209 Ariz. 97 v. repeatedly while he eyes closing (2004).19 have typ- The Arizona courts 856 As in Carl- Lynne.” Id. at 1193. stabbed ically relied on five factors “to establish a evidence that son, no admissible there is “(1) depraved of mind”: heinous and state the murder or present was at Robinson (2) relishing gra- the commission of killing, murder’s the manner of the planned for violence, (3) tuitous mutilation vic- Indeed, no evidence there is execution. (5) tim, killing, senselessness be com- that the murder planned Robinson Carlson, of 48 helplessness the victim.” Carlson, Furthermore, all. as mitted at Gretzler, (citing at 1193-94 659 P.2d P.3d that Robin- to conclude there is no basis 11-12); Detrich, also, v. e.g., see State plan reasonably was son’s home-invasion (1997). 57, 1328, Ariz. 932 P.2d 1339 188 death, let alone death to cause ceHain could not suffering. Robinson following Supreme up The Arizona Court any certainty that his with have foreseen finding of sentencing held court’s de home inva- “bungle” would accomplices as to Robinson on the basis that pravity in the manner sion and murder Sterleen killing was senseless and that Sterleen Supreme Arizona Court they did. The helpless prior rendered to her death. mur- finding to that effect. The no made Robinson, 796 The P.2d at 863. court Carlson, here, near- der like simply gangland-style ac stated “the type of of unforeseen example textbook forcing to elderly persons lay tion of two may that Arizona courts not consti- event floor, tying on them up, face down [sic] finding of tutionally rely support on senselessly shooting then them amounts to hold that the Arizona Su- cruelty. We note depraved initially conduct.” Id. We arbitrarily. preme Court here acted helplessness that “senselessness and will ordinarily prove not be hei sufficient lack also hold that Robinson’s We Ross, depravity.” State v. nousness 180 participation in the murder personal (1994). 598, 1354, Ariz. 886 P.2d 1363 sentencing application court’s renders Supreme solely Arizona Court’s reliance factor arbi the heinous probative least on the two Gretzler trary. cruelty, finding of hei Unlike not, however, conclusively does factors on the de depravity depends nousness or Rather, finding arbitrary. their render fendant’s state of mind. See Martinez (9th Lewis, 1301, our conclusion of arbitrariness derives Villareal v. 80 F.3d 1308 failure, Newell, 389, again, court’s Cir.1996); from the total v. 212 Ariz. State 833, the lack of (2006); Moody, v. address 132 P.3d 849 State 424, 1119, (2004); killing for or ordered Ariz. 94 P.3d 1167 208 Carlson, explanation The court no 48 P.3d at 1191. “The court looks Sterleen. offers no and actions at or for how events that Robinson had role a defendant’s words Bocharski, 403, has alternate- 189 P.3d 420 The Arizona Ariz. (2008), specifi- depravity "defendant” ly heinousness and as focus- rather than the defined see, However, “killer,” cally. ing used these terms ex- on the state mind of the it has Djerf, identify clusively e.g., Ariz. 959 P.2d as alternate means Arizona "murderer,” see, defendant, (1998), e.g., rather to denote that heinous- State than depravity Lopez, can be found on basis 174 Ariz. 847 P.2d ness see, (1992); e.g., accomplice. “perpetrator,” State v. the state of mind of an

1107 526, 335, (1981). in can illuminate his state of mind at the 129 Ariz. 633 P.2d 352-353 they occurred. considered, time In the cases in it which has but ultimately rejected finding a of heinous- Unsurprisingly, we have located no deci- or depravity ness to a as defendant who Supreme prior of the Arizona sion Court victim, not personally did kill the the Ari- following decision in its this case zona Court has analy- focused its finding of a depraved which heinous or exclusively sis on aspects of the killing state of mind was based on the manner of within the knowledge defendant’s and con- killing that a defendant did not partici- Carlson, (fo- trol. See 48 P.3d at 1193-94 pate in or direct. The Arizona Supreme cusing on medical condition of victim cho- has generally unwilling been to im- defendant); by Miles, sen v. State 186 pute depravity heinousness and to a defen- 10, (1996) (focus- 1028, Ariz. 918 P.2d 1030 dant based on the of an accomplice. actions Richmond, ing on 573, purpose having defendant’s de- See State v. 180 Ariz. 886 (1994) 1329, fendant P.2d 1335 killed and defendant’s (refusing partic- find possessed ipation rendering helpless). defendant heinous or victim driving state of mind based on the of a We have located two cases aside body vehicle over the of the victim because from Robinson in which the Arizona Su- “the evidence has never been clear regard- preme Court has found heinousness and ing who drove the vehicle over the vic- depravity to a as defendant who was not tim”), abrogated grounds by on other State present at the killing. time of the Mata, 319, 1035,1039 185 Ariz. 916 P.2d analysis court’s in those cases is instruc- (1996); 520, Bracy, State v. 145 Ariz. 703 tive as to the arbitrariness of the court’s 464, n. (finding P.2d conclusions here. In State v. Speer, 221 depravity heinousness and could not be 449, 787, (2009), Ariz. 212 P.3d 791-92 “by one of shown the killer’s statements defendant, while imprisoned, had an ac- immediately killings” before the because complice murder the victim because the proven was never which of “[i]t the three victim potential was a against witness statement, murderers made this and we defendant. applied The court the especial- cannot impute vileness on all three men heinous, ly depraved, or cruel aggravating them”). because of the statement of one of factor purely on the basis of the witness implicitly recognized We also have that the elimination motive. Id. at 802. In State v. person’s manner of a murder not per- Milke, 118, 779, 177 Ariz. 865 P.2d 781-82 formed or intended defendant is an (1993), the defendant delivered her four finding “invalid deprav- consideration[ ]” year old son to two accomplices who mur- Stewart, ity. 1404, Correll v. 137 F.3d him dered at her request. The court (9th Cir.1998). majority In the possessed found the defendant a heinous few cases in which the Arizona Supreme and depraved state of mind on the basis of Court has been willing impute heinous- 1) three factors: the senselessness of the depravity ness or to a defendant who did killed; victim, desire to have her son personally kill a it has made defendant’s 2) helplessness of her son at specific findings regarding the time the defendant’s killers-, presence at she delivered him to his ultimate and intention to assist 3) Anderson, parental and her killing. relationship See State v. 210 Ariz. with the 369, (2005); 111 P.3d 395-96 victim. Id. at 785-86. Each of these State v. as- Cook, 170 Ariz. pects directly 821 P.2d 751-52 murder related Correll, (1991); identity State v. 148 Ariz. defendant’s personal and her (1986); Tison, P.2d 730-33 State choices and actions. In both cases the 1108 murder, Performance that a 1. Deficient so ordered

defendant into defendant’s inquiry fact-based presume Strickland Under we concerning mind could murder state competent. v. that counsel was Duncan in either point And at case did occur. no (9th Omoski, 1222, F.3d 528 1234 Cir. rely discuss the actual the court on or even — cert, 2008), denied, Duncan Ayers, v. in which the defendants’ accom- manner 1614, -, L.Ed.2d U.S. 129 S.Ct. 173 victims, fo- their instead plices murdered (2009). pre- 1001 can “rebut own actions. cusing on the defendants’ showing that sumption by per- [counsel’s] because the presumably This focus was objectively un- formance was unreasonable irrelevance of realized the events court prevailing professional der norms and was occurring pres- of the defendants’ outside strategy.” not the of sound Id. product their understanding or control ence Strickland, 688-89, (citing 466 U.S. 104 at court’s failure here to states of mind. The 2052). S.Ct. At the time Robinson was lack of recognize either the defendant’s sentenced, professional norms prevailing any contemporaneous state mind about imposed duty adequately on counsel he order or participate a murder did not investigate, develop, present mitigat- in, of the or the irrelevance manner of the ing capital sentencing proceed- determining murder Robinson’s state of Summerlin, 630; ings. 427 at See F.3d mind, arbitrary holding makes in viola- its 868, Woodford, 268 877 Ainsworth F.3d Eighth of the Amendment. tion (9th Cir.2001) (“[Investigation] cru- was as today cial in it 1980 as is order to assure B. Claim 8: Ineffective Assistance sentencing individualized and the defen- of Counsel capital dant’s to a fair and right reliable A defendant’s Sixth Amendment penalty ABA proceeding.”); Standards (2d right 1980) (“It to counsel in a criminal trial includes Criminal 4-4.1 Justice ed. right “the the effective assistance of duty lawyer to prompt of the conduct a Richardson, counsel.” McMann 397 investigation of the circumstances 759, 1441, 771 n. 90 U.S. S.Ct. 25 all explore leading case and to avenues (1970). right L.Ed.2d 763 at attaches penalty facts [phase].”); relevant see guilt sentencing phases. Strickland, both the 690-91, Sil also 466 104 U.S. at (9th Woodford, va v. 279 F.3d 836 S.Ct. 2052.

Cir.2002). To prevail on his claim of inef at sentencing, preparing penalty fective assistance of counsel for the trial, per phase capital Robinson must demonstrate “the of a defense counsel duty thorough formance his counsel fell below an ob has a to “conduct investi jective gation background” standard of reasonableness at sen of the defendant’s tencing mitigating and ... is a all that ‘there reasonable order to discover relevant Correll, that, (quot 539 probability unpro but for counsel’s evidence. F.3d at 942 errors, 362, 396, Taylor, fessional 529 proceed ing the result Williams v. U.S. ” (2000)); Correll, ing would 146 have been different.’ S.Ct. L.Ed.2d 389 Williams, 539 F.3d at also (quoting Strickland v. see U.S. 668, 694, (O’Connor, J.,

Washington, concurring) 466 U.S. 104 S.Ct. S.Ct. 1495 (1984)). (counsel duty “diligent 80 L.Ed.2d 674 hold has make We investigation troubling that Robinson his burden into his client’s has met to dem personal background unique onstrate received circum he ineffective assis stances”). investigation tance of forms of counsel. Certain preparing virtually are fundamental to for Smith’s counsel testified that he had spo- every capital sentencing proceeding. At generally ken with Smith and with Smith’s least, very counsel should obtain readi- mother but said that he had received no ly documentary available evidence such as information that help would a mitiga- with school, records, employment, and medical tion defense. Id. We found that “the rec- Woodford, see Ainsworth v. 268 F.3d ord ... indicates that counsel asked noth- (9th Cir.2001) (concluding that counsel ing than generalized more a few questions was ineffective because he failed to obtain and conducted none of the probing real records), relevant and obtain information information legal praxis assumes and about the defendant’s character and back- even demands.” Id. We noted that coun- ground, v. Boyde California, see 494 U.S. pointed sel could have to Smith’s socio- 370, 382, 110 S.Ct. 108 L.Ed.2d 316 pathic personality, drug history, his “fine (1990) (“[Ejvidence about the defendant’s family set of relationships,” and his love background and character is relevant be- and support for his children. Id. Because belief, long cause of the held this soci- justification we found no for counsel’s fail- ety, that defendants who commit criminal develop evidence, ure to this mitigation we acts that are attributable to a disadvan- held that counsel’s performance was inef- taged background, or to emotional and fective. Id. problems, may mental be culpable less Here, Smith, as in Robinson’s trial coun- than defendants who have no such ex- engaged sel in virtually no investigation (internal cuse.” quotation and citation presented very argument little at the omitted)). investigation The should also sentencing phase of the trial. Robinson’s inquiries background “include into social trial strategy counsel’s at the sentencing family evidence of abuse.” Summer- phase was to focus on the state’s failure to lin, 427 (citing Boyde F.3d at 630 prove aggravating circumstances. His

Brown, (9th 404 F.3d Cir. sentencing memorandum only addressed 2005)). “duty Counsel also has a to inves- statutory two mitigating circumstances— tigate present mitigating evidence of murder, Robinson’s minor role in the mental impairment, which includes exami- the fact that the killing was not foresee- nation of mental health records.” Lam- able—and no nonstatutory mitigating cir- bright, 490 F.3d at 1117 (quoting Summer- cumstances. At the sentencing hearing, lin, 630) (internal 427 F.3d at edits and counsel did single not call a witness or omitted). quotation Although marks coun- any Although introduce evidence. Rober- typically begin investigation by sel will argument son said at that he could “cite a defendant, interviewing the investiga- whole lot of mitigating factors as far as tion cannot end there unless the “defen- concerned,” Fred is he briefly dis- dant has given counsel reason to believe nonstatutory cussed two circumstances: pursuing certain investigations would history Robinson did not have a Strickland, be fruitless or even harmful.” harming people and that he was 691,104 “appar- at 466 U.S. S.Ct. 2052. ently” good father. entirety of Ro- Stewart, (9th Smith 140 F.3d 1263 argument berson’s oral penalty Cir.1998), counsel “did not perform any phase consisted of ten pages of double- investigation real into mitigating circum- spaced transcript. stances, though even that evidence was surface,” rather near the gave no tac- Roberson conducted no investigation of tical reasons for his failure to do so. Id. at family history; Robinson’s he did not post-conviction 1269. At hearing, speak any with member of Robinson’s fam- medical, school, concerning potential for reha- request ily; he did not records; and did not re- he employment spoken If pris- bilitation. counsel had with By his health evaluation. quest mental they have him guards, on would informed admission, prep- limited his Roberson own prisoner. that Robinson a model Rob- was and ask- interviewing Robinson aration to good has while inson’s behavior continued any witnesses him there were ing whether row; he gets along he has been on death It not clear is presented. that should be inmates, his well with fellow he is visited many they met how times from record members, family by goes often to church it is clear that coun- long,20 or for how but as regularly, is classified Level Five- any probing questions sel did not ask One, security possible the lowest level for discovery to likely would have led row A psychological a death inmate. eval- Smith, 140 F.3d mitigating See evidence. uation of Robinson would have confirmed Additionally, although counsel at 1269. did not or aggressive that he have a hostile potential said he Robinson about asked generally personality, help- but rather was witnesses, that he say trial he did not easy going, ful and and thus demonstrated con- informed about what would Robinson potential a for and a low risk rehabilitation evidence to enable Rob- mitigating stitute dangerousness. of future Counsel did not effectively investiga- to in the inson assist any explanation not provide tactical for tion. presenting poten- evidence Robinson’s to failure attempted justify his Roberson There tial for rehabilitation. was no rea- family members to interview Robinson’s evidence, son not to such as this by explaining thought that he it would be introducing was not situation where family futile of Robinson’s because some character have opened evidence would against during members him had testified prosecution nega- door for to introduce guilt phrase of the trial. This decision character tive evidence. Counsel’s deci- reasonably competent not attor- was one ney forgo any investigation would made. had fif- sion to into Robin- have Robinson children, two of had testi- only rehabilitation, teen whom potential son’s for even counsel, against him. According fied hand, though such evidence close father, good making it was a below strategic prevailing and fell likely would that at least some of them professional norms at that time. behalf. willing testify have been on his Had Roberson conducted an effective wife, ex-wife, parents, He also had a he penalty-phase investigation, would have who not could have siblings seventeen aspects learned of of Robinson’s character behalf, but also testified on Robinson’s background provided that would have have provided important background could childhood, mitigation at sentencing, information classic evidence about Robinson’s providing investigation. leads for further including: impoverished back- can for We find no reason counsel be- ground; his unstable and often abusive that interviewing family lieve these mem- upbringing; multiple episodes of child- his bers would be fruitless. abuse; low intelligence; hood sexual his disorder; his personality non-violent explore readily

Counsel also failed to nature; mitigating potential available sources of and his rehabilita- evidentiary personal hearing. 20. and the shredded before Roberson's time sheets time been sheets he filed with the court had Instead, sentenced, limited At the investiga- tion.21 counsel’s time Robinson was nothing penalty required Arizona’s death statute yielded tion almost of use. Ac- judge impose penalty if death one or cordingly, we conclude Roberson’s more aggravating circumstances were performance was deficient.

proved beyond a reasonable doubt and if mitigation by preponder- established Prejudice ance of the not sufficiently evidence was in a Prejudice capital sentenc substantial justify leniency. Ariz.Rev. ing proceeding measured “re 13-703(E) (current § Stat. version in weigh[ing] aggravation 13-751). the evidence Thus, at § Ariz.Rev.Stat. at that against totality mitigating the available time, “failure a present mitigation de- 534, Wiggins, evidence.” 539 U.S. at 123 fense all but imposition assured the of a can S.Ct. 2527. Robinson establish that he death sentence under Arizona law.” Sum- merlin, Summerlin, that 427 prejudiced by showing was “there is a F.3d at 640. that, the sentencing court that probability aggra- reasonable but for coun found two errors, vating applied circumstances unprofessional sel’s the result of defen- dant: prior the defendant had a felony proceeding the have been different.” would conviction and the Strickland, 694, committed murder in an at 466 104 U.S. S.Ct. 2052. cruel, heinous, or depraved man-

A is “less than probability reasonable ner. Id. at 641. Because defendant’s preponderance more-likely-than-not stan counsel presented evidence, mitigating no Summerlin, dard.” 427 F.3d at 643. the court was bound under Arizona law to Rather, it a probability “is sufficient to impose the death sentence. Id. at 640. in undermine confidence the outcome.” We concluded “that the failure of trial Strickland, 694,104 at 466 S.Ct. 2052. U.S. investigate, develop, counsel to pres- and If probability there is a reasonable that mitigating ent at penalty evidence sentencing judge would not have im phase hearing has undermined our confi- posed death if aware of mitigat he was dence imposed by sentence of death circumstances, ing petitioner has been because, judge” the trial “[h]ad ade- prejudiced and is entitled to relief. Sum quate mitigation strategy presented, been merlin, 427 643 (citing Wiggins, F.3d at there is a probability’ ‘reasonable that an 2527). 537, 539 at U.S. 123 S.Ct. is “[I]t objective sentencing factfinder ‘would have necessary petitioner not for habeas ” struck different balance.’ Id. at 643 newly presented demonstrate that the mit (quoting 537, Wiggins, U.S. at 539 123 igation necessarily evidence would over 2527). S.Ct. come aggravating circumstances.” Correll, 539 at 951-52 (citing F.3d The state argues, and the district court Williams, 1495). held, 529 120 U.S. at S.Ct. that not prejudiced Robinson was 18; Bobby, argues Wong, 21. The dissent Roberson's failure 130 S.Ct. at 130 S.Ct. at Rather, to discover closely this evidence does not constitute is this case similar to McCollum,-U.S.-, performance light deficient Porter v. 130 S.Ct. 447,-L.Ed.2d-(2009), Bobby Court's recent decisions Van where the Court - Hook, -, performance U.S. 130 S.Ct. found deficient where defense (2009), Belmontes, school, medical, Wong subpoena L.Ed.2d 255 and counsel failed to -U.S.-, 383,-L.Ed.2d- military any 130 S.Ct. service records interview cases, (2009). family, But in each those defense members of the defendant’s and as a significant childhood, presented counsel amount of result abusive did learn of his evidence, service, abuse, mitigating including military evidence of the and substance im- paired kind Roberson failed to here. mental at See health. Id. 452-53. sentence, than death life rather that a to establish failed because state, appropriate is the mitigating hands of the between causal connection court particular district defendant. punishment the crime. and (1) any capi- no evidence unacceptable there is simply This found: his conduct conform ability given sentencing proceeding, tal be- the difference know capital in a the law or “treating each defendant significantly wrong were and right respect due the degree tween case with that (2) not es- “did that Robinson individual,” impaired; deter- uniqueness of the [his between connection tablish causal deserving of or not he mining whether is abuse, childhood, sexual impoverished unique taking after execution and his offense-related treatment] unfair circumstances, disabilities, traits life no con- conduct;” that there account, constitutionally required. into edu- his “substandard nection between (quoting at 1115 Lambright, 490 F.3d diabetes, intelligence, cation, average low Ohio, 438 U.S. Lockett v. the crime. disability” and physical (1978)). More- 57 L.Ed.2d S.Ct. if even that court concluded The district over, present counsel’s failure “whether at sen- presented had been this evidence personality to antisocial related evidence accorded little have been it “would tencing, drug prej- use was long-term and disorder outweigh weight” and could mitigating pre- those turn on ‘whether udicial did not Thus, it was factors. aggravating the two knowing right from defendant] [the cluded prof- the reasonably probable” “not Smith, 140 (quoting wrong....’” Id. from undermined would have evidence fered 1271). Thus, court the district F.3d of the sentenc- the outcome confidence failure relied on Robinson’s erred when it hearing. ing be- a causal connection to demonstrate holding contrary court’s The district crime as its the evidence and the tween prec- to Ninth Circuit minimal the evidence assigning basis expressly has Supreme Court edent. mitigating weight. a defendant requirement rejected the it was not argues that The state also between explanatory nexus an establish sentencing judge reasonably likely that the and the mitigating evidence proffered the if decision a different would have rendered Texas, 543 U.S. crime. See Smith present- had evidence been mitigating the 160 L.Ed.2d 125 S.Ct. already de- Arizona court ed because the child- of a troubled (holding that evidence proceed- post-conviction in the termined is rele- mental abilities hood and limited was not additional evidence ings that the ex-We mitigation purposes). vant for First, leniency. the sufficient warrant rejecting a reasoning behind plained the court, court, errone- the district state like as follows: requirement nexus that Robin- imposed requirement ously circumstances relating to life If evidence the between connection prove son causal the crime relationship no with causal It, crime. evidence and the mitigation eliminated, significant as- were to be therefore, rejected or under- improperly disadvantaged of a defendant’s pects Com- mitigating evidence. weighted valid prob- mental background, emotional and court state problem, the pounding well as his lems, history, as and adverse against proffered weighed traits, not be would positive character circumstances: statutory aggravating two of these considered, though some even heinous, con- cruel, depraved especially factors, negative, positive both the commission procuring duct to determine a sentencer might cause something by pecu- of of fective assistance of counsel in the promise penalty offense above, niary phase. We have howev- value. held We conclude Robinson is enti- er, arbitrarily tled applied court to relief in the form of a new penalty the state phase of trial. We aggravating circumstance reverse district heinous, cruel, conduct to court’s denial a writ corpus of habeas as penalty phase confidence in the court’s Robinson. Our and remand with imposition grant death has been sentence instructions to the writ of habeas because, sentencing corpus undermined had unless state court undertakes mitigating judge properly resentencing proceedings evaluated within a reason- evidentiary hearing evidence offered able time to by be determined district weighed against single aggrava- it court. ting procuring circumstance offense REVERSED REMANDED for is- by promise something pecuniary suance of a conditional writ of habeas cor- value, probability there is a reasonable pus. imposed that the would have a sen- court tence death. conclude that other than We RAWLINSON, Circuit Judge, prej- he was Robinson has established that dissenting: udiced assistance. counsel’s ineffective respectfully I dissent. The record sum, Roberson’s failure conduct a this case supports the district court’s de- investigation thorough potential mitigat- termination that Fred Robinson’s claim ing adequate evidence and to challenging application cruelty of the mitigation strategy fell reasonable below “cruel, prong depraved” of the and heinous for at- professional standards of conduct aggravating factors under Arizona’s death at a torneys representing capi- defendants penalty procedurally statute is barred. prejudiced tal sentencing. Robinson was Although question presented by closer by ineffective counsel’s assistance because application of the heinous/depraved prongs it reasonably likely that the outcome statutory factors, of the aggravating the of would have different sentencing been Arizona state courts did not arbitrarily act the mitigat- had the state court considered capriciously in applying the hei- ing proper light against in the the evidence nous/depraved prongs statutory ag- of the single surviving aggravating circumstance. gravating considering factors when the We hold therefore the district court underlying facts the the elderly murder of finding erred in that Robinson did not Schriro, Styers victim. See 547 F.3d of receive ineffective assistance counsel. (9th Cir.2008) (“A 1026, 1033 state court’s finding aggravating of an circumstance in Conclusion IV. a particular a de including novo case— by court it finding appellate partic-

The district erred when held court that a challenging ap- especially claim the ular or Robinson’s offense is heinous de- cruel, heinous, plication arbitrary or if praved capricious of the or —is depraved circum- if no aggravating conduct reasonable sentencer could have concluded.”) alterations, (citation, procedurally stance was barred. On the so omitted). merits, quotation we hold that the state court arbi- internal marks Final- trarily espe- ly, the the capriciously applied recently by as reiterated United heinous, Court, cruel, by cially Supreme any conduct States failure de- mitiga- aggravating circumstance to Robinson. fense counsel to additional tion not prejudice We also hold that Robinson received inef- evidence did Robinson. actually pain matter, that the victim suffered I note that preliminary As a necessary to the to the extent make heinous/depraved prongs of distress even if the finding. Mr. Hill that he factors were arbi- testified statutory aggravating actually not of what occurred determining the sentence aware trarily applied out, he not procedural de- because was knocked shot. imposed, be words, cruelty the Hill’s last as heard Mr. involving claim Mrs. fault of his Hill, a desire that her statutory aggravating factors concerned feet be prong of the up, plea mercy imposition to sustain covered for or an sufficient would be Gretzler, expression See State v. of fear she was about to penalty. the death (1983). no P.2d There- be killed. There is concrete evidence 135 Ariz. proce- theory fore, question support the State’s Mr. I first examine was, if he involving applica- claim Hill was shot first but even dural of the default prong statutory immediately Hill was shot almost cruelty Mrs. tion of long aggravating waiting factors. thereafter without time be shot. procedural application To avoid challenging application bar his claim (citations original) in the (Emphasis omit- statutory cruelty aggrava- prong ted). Supreme The Arizona Court ad- factors, required to Robinson was ting cruelty factor in the context dressed legal “present[ basis ] presented by factual Robinson. See State Rob- courts ...” Moor- the state claim[ ] inson, 165 Ariz. 796 P.2d 862-63 (9th Schriro, 426 F.3d mann v. (1990). Cir.2005) added). (emphasis However, in his habeas peti- amended Court, Before Arizona tion, completely Robinson his argu- shifted argued generally that “imposi- There, regarding cruelty prong. ment penalty tion was in violation of death Robinson asserted: of the Constitution of the statute and case, arguably In Robinson’s States.” have not deemed a United We existed from which to conclude that Mrs. conclusory argument such as this sufficient suffered, thereby at putting Hill issue presentation proce- of a claim to avoid ‘cruelty’ the applicability the of factor to Insyxiengmay v. Morgan, dural bar. See Significantly, ... the defendants neither Cir.2005) (9th (“In 403 F.3d nor Judge Bradshaw the Arizona Su- circuit, petitioner the make must the fed- preme finding made any Court that explicit by of claim eral basis the either either or Robinson “intended” “reason- specifying particular provisions of fed- the ably foresaw” that Mrs. Hill suf- would statutes, by citing eral Constitution or of fer as result Robinson’s actions. law.”). Indeed, to case federal Robinson’s presented The evidence at trial or sen- argument specific regarding cruelty the was in tencing that Robinson was not statutory the prong aggravating factors time the the house at the murder. stated: evidence was introduced trial No Cruelty the pain involves infliction of excluding hearsay sentencing, the state- and distress on the The victims. State Washington were ments from later by must show evidence that the victims disallowed, any had that Robinson actually physical suffered or mental knowledge that a murder would even pain Cruelty prior to the death. is not ... place take if shown the evidence is inconclusive. (Citations omitted).1 to produced

The State no evidence show (1990), majority characterizes the variant 111 L.Ed.2d 606 is singularly fact, In unpersuasive. Robinson’s petition in the habeas as citation argument federal emphasis to his underscores theory than Robin- a more detailed the one Jeffers state on the lack of pain court asserted the presented Arizona son Immediately the victim. after the citation Majority Opinion, p. See Court. to Jeffers, argued Robinson that: “An es- However, presented in fed- theory the pecially cruel murder involves the sense- markedly was differ- petition eral habeas less or sadistic of great pain. infliction presented than theory ent before the and, That not is this case there- In Arizona state courts. the Arizona state fore, supported the sentence be must courts, argued cruelty Robinson that the (Citation heinous ...” Omit- statutory aggravating of the factors prong ted). Absolutely no mention was made of inapplicable there no evi- because was Robinson’s lack of pain intent cause actually sig- that the dence victim suffered discussing cruelty when prong of the pain In nificant or distress. his federal statutory aggravating factors. More im- petition, argued that the habeas portantly, Robinson’s reference to the fact cruelty prong statutory aggravating of the that he was not inside the residence was inapplicable factors was because there was conjunction made in his with discussion of no evidence that Robinson intended or rea- prong statutory heinous aggra- sonably the victim suf- foresaw that would factors, vating part as his challenge court, argu- fer. the state Robinson’s application cruelty prong of the (or lack pain ment focused on the victim’s statutory aggravating factors. Fairly thereof). court, In the federal Robinson’s read, Robinson’s brief to the Arizona Su- argument focused on his intent to cause preme simply did not raise the issue (or intent). pain victim lack It is i.e., argues, he now whether the evidence say pre- more accurate to that Robinson adequately established that Robinson had theory sented different court federal pain victim, intent inflict upon say presented than to he a more reasonably foresaw that the victim would theory detailed in federal court. toMore reason, pain. suffer For I would hold point, theory argued different challenge to the cruelty presented federal court never prong statutory aggravating factors state courts procedurally now is foreclosed. Moormann, barred. See F.3d at Because the of support- existence facts (requiring presentation of the factual and ing cruelty application prong of the legal bases of petitioner’s the claim to the statutory aggravating factors would be courts). state adequate sustain death the sentence Ricketts, Robinson’s citation to v. I imposed, analysis would my end of Rob- Jeffers (9th Cir.1987), 832 F.2d 476 rev’d sub nom. sentencing challenge inson’s with that Jeffers, 764, v. However, Lewis 497 U.S. S.Ct. my 110 conclusion. because col- Acceptance ("The argument of Robinson’s could pro- ments before the state court State importance minimize the in no of exhaustion the duced evidence that to show the victim petitioner actually pain habeas context. A habeas could suffered or distress to the extent courts, and, present argument necessary finding.”) one to the (emphasis state to make this argument rejected, ("In that petitioner original), petition once is the the and in his habeas case, strategically argument arguably could to a new shift evidence Robinson's existed petition. or his her federal habeas This is from which conclude that Mrs. Hill suf- ..."). contradictory argu- reflected Robinson's fered 1116 Carlson, 1193, at P.3d the Arizona also conclud- 48 majority have in the

leagues “[tjhe the that heinous finding Supreme that Court held court’s that state ed the heinous/depraved [statutory ag- portion was killed victim I arbitrary, comment focuses on the defen- gravating factors] will manner was the the state mind at time of briefly point. on dant’s that However, inquiry the concentrates crime. that Robinson’s absence initially I note mental state as evi- on the defendant’s not of the residence does the interior from (citations actions ...” through[his] denced the culpability for him on give pass omitted). elderly victim. See State murder of the Dickens, 926 491-92 Ariz. P.2d 187 in- on his from Robinson relies absence Nichols, (1996) (in banc); also State v. see the to defeat application side residence (Ct.App. P.3d 219 Ariz. prongs of the statu- heinous/depraved the 2008). (“[Ejvidence that a defendant However, factors. the tory aggravating not, as a a crime scene is at Supreme Arizona did not view Rob- Court in- law, directly contrary to or matter of inson’s as determinative when dis- absence verdict.”) (citation guilty consistent with cussing heinous/depraved prongs. the See omitted). Robinson, at 862. To the con- 796 P.2d keep “[f]ed- mind that We should also Supreme noted trary, the Arizona appli- aof state court’s eral habeas review provided weap- that “Robinson murder limited to cation of factors is aggravating triggerman] transported on and [the the state court’s find- determining whether parents. home of his wife’s common-law arbitrary or as to ing capricious was so is no that triggerman] [the There process or independent constitute an due they or where lived but knew [victims] Moor- Eighth Amendment violation.” guidance Although for the of Robinson.” Cir.2005) (9th mann, at 1053 426 F.3d mur- Robinson did not commit the actual (citation quotation marks internal reflects, der, the record and the Arizona omitted). whether, viewing examine “We found, definitely Supreme Court he light in the favorable to the evidence most in motion. at 864 set murder See id. fact prosecution, any rational trier of (noting “Robinson masterminded the could have found essential elements could trip”). Although disagree one with Id. beyond the crime a reasonable doubt.” finding, it much difficult to is more (citation quotation marks and internal In- argue finding arbitrary. is omitted). through viewed When deed, challenges extent through of a prism rather than the lens interpreta- the Arizona Court’s factfinder, claim fails. post-hoc meaning statutory aggra- tion of the factors, challenge

Although vating unavailing. Arizona case State (“As Carlson, may Ariz. 48 P.3d 1180 See id. difficult as it be (in banc) depravity, gangland-style on the action makes this closer case define merits, forcing elderly persons lay I the the facts face remain of view that of two floor, tying up, of on the then support application the down them heinous/de- statutory aggrava- senselessly shooting the them amounts de- praved prongs of conduct.”) (citation omitted); factors, see ting praved considers especially when one also, 1380, Langford Day, the that 110 1389 same court decided Carlson F.3d (9th Cir.1996) (“We accept a rejected challenge applica- state court’s Robinson’s law, heinous/depraved interpretation alleged of the of state prongs tion in the of state law are statutory application factors. errors aggravating

1117 cognizable corpus upbringing; in federal often abusive his multiple epi- not habeas (citations omitted). ”) abuse; ... sodes of childhood sexual his low intelligence; disorder; his personality his year that a Robin- evidence earlier nature; potential non-violent and his for two Susan’s son and cohorts had entered Majority p. rehabilitation.” See Opinion, Susan, home in search of Robin- sister’s However, Supreme 1110-11. the Court’s wife, easily common-law is not so son’s rulings in Hook and Wong clarify Van the The two cohorts entered discounted. failings these asserted cannot support guns with up house and tied Susan’s sister claim under Strickland. Fortuitously, niece. no one was Although and Susan’s case, not try this we do have to to deter- harmed, the record it was reflects that mine whether the asserted deficiencies niece presence the of Susan’s would have made a sen- difference the occurring. a murder from prevented case, In imposed. tence this we know the Finally, Supreme the United States answer the same im- judge because who just has decided two this Court cases posed the presided sentence death over that, view, my a deter- month foreclose the postconviction proceedings. review mination that Robinson was prejudiced hearing After all mitigation the evidence any present failure of defense counsel to after-the-fact, that Williams mustered the mitigation during additional evidence the sentencing judge declined to entertain the sentencing phase proceedings. In prospect changing im- previously —Hook, -, Bobby Van U.S. posed sentence. 13, 15, (2009), a pre- 175 L.Ed.2d 255 S.Ct. case, 14, Supreme AEDPA see id. At postconviction proceed- review Court considered whether Van Hook’s “at- ings sentencing judge, before the Williams torneys during penalty were ineffective Gonzales, presented testimony from Juan they adequately because in- phase did not a Corrections Officer at the Florence Cor- vestigate mitigating Institution. rectional Officer Gonzales ...” id. at 16. Applying See Strickland v. favorably regarding testified Washington, 466 U.S. 104 S.Ct. family his contact with and his lack dis- (1984), L.Ed.2d 674 Supreme ciplinary problems. Officer tes- Gonzales prejudice that Van Hook ruled suffered no displayed any tified that Robinson had not “the [mitigation] because minor additional tendencies, “very easy violent to work details the trial court did hear would with,” got along well with the other have made any difference.” Van [not] inmates, had been classified at the n — n Hook, U.S.-, S.Ct. security lowest level since his incarcera- 255. L.Ed.2d tion. Officer Gonzales informed the court — that “quite Robinson attended church of- Belmontes, Similarly, in Wong v. — Gonzales, According ten.” to Officer if U.S.-, 130 S.Ct. L.Ed.2d- gen- to be placed Robinson were into the (2009), Court found lack of eral “he would population, do well.” prejudice petitioner where the accused failing “dig deeper” counsel addi- Roy, a psychologist, Dr. Tod testified mitigating id. at tional evidence. See that, to conducting in addition a clinical case, Robinson, the fol- majority lists interview with he administered mitigation Personality “classic lowing evidence” Minnesota Multi-Phasic counsel, test, majority’s view Inventory intelligence testing, defense have im- diagnostic should discovered: Rorschach test and the Themat- “Robinson’s poverished background; Roy and ic test. Dr. re- Apperception his unstable also sonality by Roy. Nothing Dr. records Disorder school and

viewed Robinson’s suggestion a that by supports conducted Dr. the record evaluation psychiatric unaware of activ- this defendant was Eva McCullars. Hill on the of evening ities at the home addition, Roy Dr. interviewed Robin- rejects, and court now and the crime Roy that opined Dr. Robin- son’s father. at sentencing hearings, would have re- rehabilitated”; to be potential son “had jected suggestion a of Per- Borderline ties; that had family he he that had close sonality This court accepts Disorder. as noting while good imprisoned, behavior has an true that Mr. Robinson antisocial lowest risk status that he “carrie[d] personality poorly disorder and ad- anyone on applied that can to death be justed living society, to but there is row”; danger- was not that Robinson now, nothing makeup in his nor in the likely ous or to re-offend. opinion experts any- was there reflecting Dr. results Roy disclosed test offenses, thing at the time of the which intelligence level Robinson’s low ability right lessened his to differentiate achievement, and testified at educational wrong from or to conform actions length disadvantaged about Robinson’s law ... with the childhood, describing as Robinson “born into an of a ru- impoverished environment was that The court aware Robinson was relayed ral nature ...” He that Robinson a prisoner, model but remained uncon- community segregated lived a and was vinced that his model behavior translated a “pulled by once off sidewalk his aunt to into for potential a rehabilitation or lack of pass.” allow woman white danger society. The future court held any[of that “to the extent the claimed miti-

By far the most traumatic event de- be, may or have gating pres- factors] been Roy by being scribed Dr. was Robinson’s certainly ent[they] not sufficient by boyfriend sodomized his mother’s when are/were imposed.” to affect The Dr. sentence Roy he a child. also informed the explicitly although court expe- court the heartbreak Robinson discussed about shown, lack publicly rienced father of education was no lack of when Robinson’s Rather, repudiated intelligence post- Robinson’s mother and was shown. most siblings during pro- Robinson’s divorce conviction court reviewed “ex- Robinson as ceedings. Finally, Roy perienced, Dr. testified that street and ... smart wise sexually aunt him plan carefully forcibly abused for enough act time, period subjected and that he being.” his own well court reiter- beatings. ated its view of these matters “[n]one are, have been to mitigate sufficient evidence, After all hearing post- imposed.” sentence [Robinson’s] judge, conviction review who was also the sentencing judge, evi- determined post-conviction fully The state court con- presented have dence would not affected mitigation presented sidered the evidence imposed. the sentence subsequent emphatic Robinson. Its post-conviction

Specifically, the court ruling mitigation that the evidence would ruled: imposed have affected the sentence prejudice of no under compels

Mr. has conclusion been examined and Hook and For Wong. found have no rationale Van mental [sic] chal- per mental disease Dr. reason because Robinson’s McCullars lenge statutory suggestion cruelty prong an Axis II of Borderline Per- barred, Provo, UT, procedurally Young University, aggravating factors is W. Cullen Battle, Clendenin, A respectfully I dissent. Fabian & Profession- UT,

al Corporation, City, Salt Lake for Amici Curiae. HENRY,

Before Judge, Chief TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, TYMKOVICH, GORSUCH, and HOLMES, Judges. Circuit The SOCIETY WILDERNESS Wilderness Alli Southern Utah

ance, Plaintiffs-Appellees, ORDER This matter is before the court Ap- on pellants’ Petition Panel For Rehearing UTAH; COUNTY, Daniel KANE Hu W. Request Rehearing For En Banc. We let, Habbeshaw, Mark W. and Duke response also have a from appellees. Cox, capacities in their official as petition and response were circulated County Commissioners, Kane Defen to all judges the court on who are in dants-Appellants, regular active A poll called, service. majority and a voted to GRANT rehearing Counties; Utah Association of National Therefore, en banc. the request for en Preservation; Trust for Historic Pat rehearing banc granted. Shea, Dombeck, rick A. Michael P. Baca, former James Directors of 8, 2010, On or before March appel- Management,

the Bureau Land brief, lants shall supplemental file a limited Amici Curiae. pages font, to 20 in a length point addressing any they matter deem perti- No. 08-4090. review, nent to particular en banc but in Appeals, United States Court addressing following: Tenth Circuit. 1) Whether the Plaintiffs have constitu- i.e., tional standing, whether 5, 2010. Feb. “legally protected Plaintiffs have a Adams, Zukoski, McCrystie Edward B. prudential interest” and standing; Denver, CO, James Angelí, Earthjustice, 2) Supremacy pro- Whether the Clause McIntosh, UT, Heidi Lake City, Salt Rob- vides the with a private Plaintiffs Wiygul, Associates, ert B. & Waltzer action; right of MS, Ocean for Springs, Plaintiffs-Appel- 3) Whether a local government may ex- lees. rights ercise R.S. 2477 over federal Davis, Shirey, A. John L. Kendra Shawn lands in a manner conflicts with Welch, LLP, T. Holme & Owen Roberts regime the federal management with- Lee, LLP, Howrey Michael S. Salt Lake filing Quiet out Title Act suit with UT, City, Defendants-Appellants. respect rights; to those V, 4) Hays, Alexander Elizabeth government may S. Mer- Whether a local as- ritt, Smith, rights Michael D. National sert defensively Trust For R.S. 2477 Preservation, DC, Washington, join Historic without seeking to landowner Lee, Lee, action; Michael S. R. in the Brigham Thomas

Case Details

Case Name: Robinson v. Schriro

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 22, 2010

Citation: 595 F.3d 1086

Docket Number: 05-99007

Court Abbreviation: 9th Cir.