Stanley v. Schriro

go No need to further to defend the strengthen at issue. I

Nevada statutes by noting Footnote 20 of argument states, opinion. It there is

Judge Berzon’s question

no that California or Arizona constitutionally advertising

could ban the legal Nevada brothels and that the similarly

United States could ban the ad- prostitution of child

vertisement foreign jurisdiction.

lawful in a I agree. why activity

But can such lawful one

jurisdiction kept being be from advertised answer, jurisdiction? another im-

plicit Judge opinion, Berzon’s is that

California, Arizona, or the United States

may constitutionally suppress speech that sexual

offers intercourse for sale. STANLEY,

Milo McCormick

Petitioner-Appellant, SCHRIRO, Respondent-

Dora B.

Appellee.

No. 06-99009.

United Appeals, States Court of

Ninth Circuit.

Argued Sept. Submitted 2008.

Filed March FLETCHER,

Before: B. ANDREW J. KLEINFELD, and JOHNNIE B. RAWLINSON, Judges. Circuit Opinion by Judge RAWLINSON; by Judge Concurrence BETTY B. FLETCHER; Partial Concurrence and by Partial Dissent Judge KLEINFELD. RAWLINSON, Judge: Circuit Petitioner Stanley (Stanley) Milo by jury convicted first-degree murder of his wife five-year-old and daughter. Stanley The court pris- sentenced to life in on for the murder of his wife and to death for the murder of daughter. Stanley’s conviction and sentence by were affirmed Supreme the Arizona Court on ap- direct peal and petitions his state post-convic- tion relief were subsequently denied. He petition filed a for writ of habeas corpus the district court and now appeals the district petition. court’s denial of that Stanley grounds asserts three for relief. First, Stanley contends that his Miranda1 rights were ignored violated when officers attempted invocation of rights those and continued him interrogating until Second, secured a confession. posits that trial counsel rendered ineffec- tive assistance during guilt phase of Levy (briefed), Seattle, H. WA, Gilbert by failing trial present readily available (briefed and Paula K. argued) Harms and evidence support an insanity defense Sylvia (briefed), and Lett Assistant Feder- lack of premeditation defense. Defenders, Phoenix, AZ, al Public for the Third, Stanley argues that trial counsel petitioner-appellant. rendered ineffective during assistance penalty phase of trial failing to investi- (briefed Kent Cattani argued), Chief gate present readily mitigat- available Counsel, (briefed), and J.D. Nielsen Assis- ing evidence. It is the ground last General, Phoenix, tant Attorney AZ, for gives pause, us we as take note of Justice the respondent-appellee. O’Connor’s remarks 2001 that prompted

the New York Times to editorialize that “legal representation afforded in- most digent capital defendants in cases” is woe- fully Editorial, Justice O’Con- inadequate. Arizona, 1. See Miranda 16 L.Ed.2d 694 Executions, Times, July asking questions to report, N.Y. reconstruct the

nor on on family’s night disap- activities of the 2001, A16. questions He also to de- pearance. asked that defense we are convinced Because they might gone. termine where prejudice did not performance counsel’s However, early there indications were trial, guilt phase hour-long that Saravo interview sus- the district court’s denial

we AFFIRM pected involvement. petition as to the first two Stanley’s habeas However, Stanley’s alle- grounds. into Approximately fifteen minutes questions and a color- gations raise serious interview, Saravo to ask began of coun- regarding adequacy claim able related to questions discovery the officers’ trial, the penalty phase sel the of in Approximately of blood his car. wife’s por- and REMAND we REVERSE interview, into twenty minutes the Saravo to tion the decision allow the district questions turned to toward Stan- directed evidentiary hearing. court to conduct ley’s gun use of his in connection with the good in con- simply cannot conscience We Approximately twenty-five car. minutes to tinue to men their deaths without send interview, into the increased Saravo the preju- that their cases were not ensuring suspi- but still his pressure, did not reveal by inadequate legal representation diced (“Can you any cions. tell me reason why proceedings. any phase of be there would blood on the outside of (“Can vehicle?”); your you tell me any

I. why there reason would be blood on the (“I your vehicle?”); inside of want to tell BACKGROUND you right now that on there is blood Interrogation Stanley’s A. and Confes- vehicle.”).

sion interview, thirty About into the minutes the eve- Stanley police contacted the on advising his Stanley after Miranda 1986, his wife ning report of June to rights, sought Saravo to search permission five-year-old daughter missing. See and Stanley’s apartment, Stanley to which con- Stanley, 167 Ariz. 809 P.2d State v. reading Before sented. Miranda afternoon, next warnings, Stanley, Saravo assured ‘You father, Stanley the consent of both and his under not you’re weren’t arrest and under the pair’s repair officers searched auto explained at this time arrest ...” He had shop, where wife’s sisters “just rights being were read discovering bloodstains and a reported going you to ask for a consent we’re to spent casing wife’s car. See id. shell point.” reading at this After Stan- search searched the 946-47. While officers stated, “you’re ley rights, again his Saravo Stanley agreed was to shop, asked under arrest at time ...” this (an investigator) Officer Saravo accompany county building at the to be his office Stanley granted to the search consent regarding disappearance interviewed thirty-six minutes into approximately daughter. at 947. wife and See id. get interview and was allowed to leave a Stanley specifically was informed that he returned, Stanley When Saravo drink. be- arrest a not under and was not sus- gan point out the holes he saw the pect. Finally, story Stanley ap- had related. forty-five minutes into the in- initially approached proximately the inter- Saravo terview, Stanley with follow-up missing persons to a Saravo confronted view as you really However, think suspicion: colleague “Do some- in dissent. charge our (sic) body actually surprised you legal wife at look at the merits of the issues raised rather than shop, your gun put degree took her in to focus on the to which repulsed by inevitably we are that car and her out and killed took her grisly Indeed, details of the case. our brought car Stanley back?” After precedent leaves no that the affirmative, doubt heinous answered Saravo re- underlying nature of the offense should plied, hap- “I don’t think that could have determining not be the factor. See Stan continued, “I pened,” and then think if that (9th Woodford, kewitz v. 365 F.3d if that in fact is what happened, happened, Cir.2004) (holding that “counsel’s failure to that person you.” almost had to have been present mitigating preju evidence can be then When Saravo asked who the dicial even when the defendant’s actions perpetrator would have “had to have egregious”); are Douglas see also been,” answered, At that “[m]e.” (9th Woodford, 316 F.3d Cir. said, point Stanley “I think I better talk to 2003) (“The gruesome nature of the killing I lawyer. say any don’t want to more.” necessarily did not mean penalty the death After confirming did not wish unavoidable.”) (citations omitted). was questions, to answer Saravo indicated that concluding he was the interview and B. Admission of the Confession stopped recording. He did not tell In denying Stanley’s contention that his Stanley that he was free to leave. wrongfully confession was admitted into After an period unknown time evidence, trial court “[t]he determined elapsed, tape Saravo turned the recorder there was neither a Miranda nor an Ed- back on. He purported recognize Stan- Arizona, wards 451 [v. U.S. (“You ley’s invocation of rights (1981)] 68 L.Ed.2d 378 violation be- requested talk attorney, you to an don’t cause custody was not in at the me.”), have to talk to then confronted time of Saravo’s questioning.” Stanley, Stanley with additional evidence and re- P.2d 948. On appeal, direct (“It questioning. appears sumed now that Supreme Arizona agreed, Court stating

very strongly your wife has met some that, one in custody “[w]hether is is deter- (“There’s understand?”); foul play, noth- objectively: mined Under the circum- ing that you more would like to do to stances, would a person reasonable feel child?”). your locate wife and At least ten deprived of his freedom of action? Fac- passed minutes with Stanley sobbing and (1) tors custody indicative of include: Saravo coming going from the room objective whether the indicia of arrest are before the tape ran out. Subsequently, (2) present; the site of the interrogation; Stanley apparently confessed to the kill- (3) length and form investiga- ing. tion; (4) and, whether the investigation Our colleague in dissent assiduously ca- (citations had focused on the accused.” Id.

talogs every heinous detail of grue- this omitted). factors, Applying these some crime. See Dissenting Opinion, pp. court concluded that Stanley was not in 629-30. There is no doubt that the facts and, custody therefore, warnings Miranda of this case repulsive. are But that is true were not required. basis, See id. On that every case where penalty the death rejected the court Stanley’s argument that, imposed. If the Edwards, resolution of this case under questioning should have rested on the relative heinousness of the ceased when attempted he to invoke his offense, we quarrel would have no with our rights. Miranda See id. at 948-49. Insanity testified that would have Reaction Dissociative

C. likely suffered from a dissociative most confession, Stanley was Following his killings, making at the time of the reaction seen day The next he was arrested. unlikely premedita- it he acted with Hammitt, jail Among psychiatrist. Dr. tion. Hammitt Stanley told Dr. things, other experi- “he killing at the time of the II. watching that he was enced the sensation [Dr. even there.” “He told

like he wasn’t STANDARDS OF REVIEW that he flew off wall Hammitt] them.” de novo the district shot “We review petition court’s denial of for writ that Dr. Ham- represents The dissent Ornoski, corpus.” Earp v. habeas ... not mitt “concluded (9th 1158, 1166 Cir.2005), F.3d as amended p. Dissenting Opinion, even remorseful.” (citation omitted). fac The district court’s considerably This characterization findings tual are reviewed for clear error. report. Dr. Hammitt’s As the overstates See id. We review district court’s notes, Stanley great “cried a deal” dissent petitioner that a is not enti determination Hammitt, Dr. meeting evidentiary hearing for abuse of tled to inconsis- is somewhat which observation Landrigan, discretion. See Schriro In complete lack of remorse. tent with a 1933, 1939, 167 L.Ed.2d U.S. fact, Stanley as Dr. Hammitt described “an- emotionally distraught,” and “quite unable to relate sobbing

guished, [and] Under the Antiterrorism and Effec- addition, In Dr. Hammitt (AED- appropriately.” Penalty Death Act of 1996 tive Stanley lacked re- report that did not PA), can an grant ... a federal court were that precise Her statements morse. corpus for a writ of habeas application to me “[n]othing [Stanley] said indicated pursuant held to a person on behalf of per se” and that any degree of remorse if the judgment state-court state-court any volunteered comments Stanley “never in a adjudication resulted decision cry ...” That a far from remorse about to, contrary or involved an unrea- lacked statement definitive of, application clearly estab- sonable remorse. law, by the Federal as determined lished of the States. Supreme Court United trial, sought counsel

Prior to defense regarding Dr. Hammitt’s the notes exclude Alvarado, 652, 655, Yarborough v. 541 U.S. (the Hammitt inter- interview of (2004) 2140, 124 158 L.Ed.2d 938 S.Ct. view) doctor-patient privi- on the basis of (citation marks quotation and internal the motion. De- lege. granted The court omitted). de- “[C]learly established law as information provide counsel did not fense refers to by Supreme termined [the Court] to the the Hammitt interview regarding dicta, opposed as to the of holdings, experts who evalu- defense mental health ...” Id. at decisions Supreme Court’s] [the Stanley. ated (citation 660-61, 2140 and inter- 124 S.Ct. omitted). quotation “[Courts] nal marks information after

Upon learning of this legal principle or governing that the look for the trial, experts declared the defense Supreme Court by set forth changed principles their information would have its the state court renders Stanley’s state at the time regarding mental opinions (cita- 661, at 124 S.Ct. decision.” Id. killings. of the Had been at the time omitted). interview, quotation internal marks both tion and with the Hammitt provided ” may grant custody.’ court relief under the Stansbury California, clause if the application” 318, “unreasonable U.S. 114 S.Ct. 128 L.Ed.2d correctly gov- state court identifies (1994) (citations omitted).2 The “ulti- erning legal principle Supreme from [the inquiry” underlying mate question unreasonably ap- but Court’s] decisions custody simply “is whether there was a plies particular it to the facts of the case. formal arrest or restraint on freedom of inquiry The focus of is on whether [this] degree movement of the associated awith application clearly the state court’s (citation formal arrest.” Id. and alteration objectively un- established federal law is omitted). To question, answer this reasonable, Supreme [the Court] reviewing totality court looks to the ... that an has stressed unreasonable circumstances, at id. application is different from incorrect might per- how a “affect[ ] reasonable one. position son in that perceive would his or Cone, 685, 694, Bell v. her freedom to leave.” Id. at (2002) (citations 1843, 152 L.Ed.2d 914 S.Ct. 1526. omitted). review, On direct Supreme the Arizona

III. which, eight Court identified facts togeth- er, Stanley’s rendered interview non-custo- DISCUSSION First, investigation dial.3 that led offi- A. Admission of Confession question Stanley cers to was initiated Stanley’s report that his wife and To be entitled to relief on an based alleged rights, missing. Stanley, violation his Miranda were See 809 P.2d Second, must show that the state court’s 948. place interview took in custody determination he was not county building rather police than the attempted when he right invoke his Third, Stanley station. See id. voluntari- silence and to have an right attorney pres ly agreed to the interview. See id.

ent during questioning contrary either was Fourth, he was told that he was not under to, or application involved an unreasonable arrest and suspect. was not a See id. of, law, clearly established federal or was Fifth, he was not hunting disarmed of his based on an unreasonable determination of Sixth, knife. See id. the investigation 2254(d). § the facts. See 28 U.S.C. Stan was focused “on a missing per- search for ley and, has showing failed to make this ..., Seventh, sons not on a homicide.” Id. therefore, is not entitled to relief on this Stanley office, the interview left the claim. unaccompanied, get to something to drink Eighth, use the restroom. See id. clearly

Under established federal law, display there was no of weapons by police, warnings required “only Miranda are physical where there and no use of threatening has been such a restriction on force or a person’s freedom as to him ‘in language. render See id. Although Stansbury

2. was decided after the 3. On habeas review we examine last rea- Supreme Arizona Court's 1991 decision in soned decision from the state courts. See Stanley, principles State v. it discusses Garcia, 1036, (9th Mejia v. 534 F.3d clearly were established federal law based on Cir.2008). Supreme prior Court decisions announced 322-25, Stansbury, 1991. See 511 U.S. at S.Ct. 1526. custody despite being contends that the state court not informed that increasingly suspect failed to address the accusato he was and confronted with fa- questioning linking of the to which he bricated evidence him to ry nature crime). subjected. argument This lacks mer Because the state court delineated weighed expressed suspicions may comparable it. An officer’s factors to those considered, custody. Supreme to the issue of Court has be relevant See cf. 325, Stansbury, Yarborough, 541 U.S. at U.S. S.Ct.

However, we conclude that the Arizona Su- preme reasonably applied Court federal a clear statement from an officer [e]ven in determining law that was not person interrogation that the under is a custody when he confessed. not, itself, prime suspect dispositive issue, custody for some suspects go until police are free come and B. Ineffective Assistance of Counsel: sum, an In decide make arrest.... Phase Guilt ... concerning po- officer’s beliefs To establish violation of his Sixth culpability tential being the individual right Amendment to effective assistance of questioned, may be one among many counsel, (1) Stanley must show that coun upon bear assessment factors performance sel’s fell “objective below an in custody, whether individual was (2) standard of reasonableness” and he was if only but the officer’s views or beliefs prejudiced by performance. this deficient were somehow manifested to the individ- Washington, Strickland v. interrogation ual under and would have 687-88, 80 L.Ed.2d 674 person affected how a reasonable in that (1984). If we conclude that petitioner position perceive would his or her free- satisfy fails to one of the Strickland dom to leave. prongs, we need not address the other. added). (emphasis

Id. See id. at 104 S.Ct. 2052. Because it Although troubling is somewhat Stanley failed to demonstrate he was explicitly court failed to address the prejudiced alleged trial counsel’s short accusatory questioning, nature of Saravo’s comings, he is not entitled relief. omission does render the court’s

application of federal law unreasonable. To establish prejudice, In the context of determining whether a “must show that there ais reasonable that, reasonably applied clearly probability state court has unpro but for counsel’s errors, established federal law to reach its proceed deter- fessional the result of the mination, range judg- ing 694, “the of reasonable would have been different.” Id. at depend part ment can on the probability nature of 104 S.Ct. 2052. “A reasonable Yarborough, the relevant rule.” 541 a probability U.S. is sufficient to undermine 664, at 124 custody S.Ct. “The test confidence in the (emphasis outcome.” Id. added). 665, 2140, Where, general,” here,

is id. at as there is a conten rule, general more “[t]he the more tion that trial performance counsel’s was leeway have in reaching present courts outcomes deficient due to failure to evidence case-by-case defense, support determinations.” Id. at a there a must be (citation 664, omitted); 124 2140 probability S.Ct. see reasonable that the omitted ev Mathiason, 492, Oregon also v. 429 U.S. idence would have raised a reasonable 494-95, 711, (1977) 97 jurors’ guilt. 50 L.Ed.2d 714 doubt in minds as to See id. curiam) 695, 104

(per (holding that a suspect was S.Ct. 2052.

620 that access to Bindelglas Dr. declared contends that he was

Stanley provid- interview would have the Hammitt present failure by counsel’s prejudiced corroboration for his conclusion ed inter in the Hammitt revealed evidence a dissociative reac- Stanley had suffered According Stanley, experts. view to his witness, Similarly, expert another tion. signifi explain then could Garcia-Bunuel, stated in an affidavit Dr. jury to the to es that interview cance of generated Hammitt interview an capacity insanity or diminished tablish killing of that at the time of the “opinion However, Arizona law bars the defense. highly probable it daughter, his wife and testimony regarding expert

admission of a Stanley suffering from that Mr. the defendant at the mental state of Reaction.” Dissociative Mott, 187 See State v. time of the offense. As a P.2d

Ariz. Stanley Expert testimony that suffered result, “consistently Arizona courts time of the a dissociative reaction testimony to psychiatric allow refused to not have been admissible to killing would (cita Mott, intent.” Id. at 1051 negate specific challenge premeditation. See omitted). (“Arizona not allow tions “Arizona does not allow evi- P.2d at 1051 does mental disorder of a defendant’s mental disorder evidence of defendant’s dence an affirmative insanity as an affirmative short of either as insanity of either short negate the rea element defense or to mens negate the mens rea element defense or to crime.”). prejudice No is suffered Id.; of v. Ari of a crime.” see also Clark pursue counsel declines to the devel- when zona, 735, 756, 779, 126 S.Ct. testimony of that would be inad- opment (2006) (holding that 165 L.Ed.2d 842 Henry, v. missible at trial. See Wilson testimony regarding expert

exclusion of (9th Cir.1999). F.3d not violate due capacity diminished does longstanding is a rule process). This attempts to re-frame the issue Stanley Mott, Arizona. 931 P.2d at 1050. See limiting Arizona law the admissi to avoid bility expert testimony on the issue proffered testimony upon Much of the testimony by describing the premeditation scope relies falls within the which An ex addressing as “character traits.” Dr. Bin- example, of Arizona’s bar. For may testify person’s as to “a pert witness witnesses, delglas, expert one of the stated (e.g., trait” continuing general personality in an affidavit: reflection), tendency to act general without Stanley was regard Without to whether may testify person’s prob as to “a but Ari- requirements insane under the state of mind at the time of the of able shooting at the time the of his zona law Ortiz, 158 Ariz. fense.” State occurred, omitted). wife and there was a (1988) (citation 13, 18 Stan P.2d very real issue as to whether proposition this is mis ley’s reliance on if premeditate could his actions oc- Bin testimony of Drs. placed because the curred a Dissociative Reac- not be delglas and Garcia-Bunuel would asked, tion .... I I would have Had been trait of im had a “character Rather, is a by Stanley. testified that a Dissociative Reaction pulsivity,” argued as involuntary and so that spontaneous, event Dr. have testified “a Bindelglas would in very spontaneous, there substantial doubts that Reaction is a were Dissociative actions, very there were Stanley premeditated voluntary re- event and so Stanley premedi that gardless legal of whether he met the substantial doubts actions, whether he regardless tated his of insanity test for in Arizona.

621 insanity in Arizona.” that Dr. Hammitt’s interview legal test for should have met Ari- testimony directly conflicts with Although This been offered into evidence. ob testimony. expert limitation on See expert zona’s servation evidence offered (“An may witness not expert at prosecution’s id. to rebut the evi admissible rea, Clark, as to whether a defen- testify specifically dence of mens see at U.S. acting reflectively at 34, 126 2709,4

dant was or was not n. we conclude (citation, killing.”) time of a alteration Stanley prejudiced by was not trial omitted). Likewise, Dr. emphasis counsel’s failure to introduce the Hammitt testimony would have fo- Garcia-Bunuel’s interview into evidence. It is true that Dr. a impermissibly

cused on the likelihood of sup Hammitt made statements that could “at the time of the dissociative reaction port lack-of-premeditation a defense. For daughter.” his wife and killing of example, she described “quite as emotionally distraught,” “anguished, sob declaration, subsequent In in addi- bing,[and] appropriately.” unable to relate opining Stanley likely tion to suffered However, unlikely it is that Dr. Hammitt’s reaction, a Dr. Garcia-Bunuel dissociative observation evidence would have overcome opinion his “further that as a result stated premeditation substantial evidence of Reaction], highly of Dissociative it is [his presented at trial.5 met the criteria for probable insanity.” of M’Naughten standard court specifically district referenced Testimony effect to this would (“evidence particulars of the shootings barred, expert Arizona allows been as tes- wounds”), similarly-placed of contact timony legal that a defendant meets the testimony Wright, of Officer Mott, insanity. definition of See 931 P.2d shootings, conduct after the as evidence However, at 1051. we conclude “presenting] challenges to a defense testimony to absence of this effect did not premeditation.” based on absence of At prejudice overwhelming due trial, there was evidence that Stanley’s Indeed, evidence that he was sane. two of wife was shot three times: once to the top

the other who testified trial head, of her gun the barrel of the with Dr. Garcia-Bunu- expressly disagreed skull; pressed against her once in the point. el on this from a of than upper lip, distance less one foot; ear, fact that Finally, despite the trial coun- and once behind the from a successfully petitioned sel the court to ex- distance of three or more feet. The evi- clude Dr. Hammitt’s interview from admis- dence also indicated that his evidence, Stanley head, argues top sion into now shot once: to the with the appropriate passion.” It would have been for Dr. made in the heat of State evidence Hammitt offer observation be Thompson, 204 Ariz. 65 P.3d Stanley shortly cause she interviewed after may proved be Premeditation the murders were committed. See State v through circumstantial either direct or evi- . Wright, 214 P.3d Ariz. However, usually dence. See id. at 428. it is (2007) (noting that evidence "Observation proved by evidence. See id. circumstantial behavior, evidence a defendant's includes time needed for reflection is not “[T]he neces- statements, expressions of belief around sarily prolonged, space and the of time be- (citation omitted) offense.”) the time intent[knowledge] tween the to kill and the added). (emphasis killing may very act of be short. It is the act premeditation length and not the of time requires showing 5. Premeditation of actual question.” Id. available that determines prior killing; reflection to the the decision to (internal omitted). quotation marks 428-29 just snap kill must "be than decision more ability in that to con- her committed his against skull. been gun pressed the barrel of requirements of form his conduct to the that said Wright testified Officer very seriously the law would have been “because she had his he shot trial, At Dr. Garcia-Bunuel impaired.” This evidence he had done.” seen what that, “Defendant at the time of testified to prejudice of to show a lack sufficient alleged offense was the commission of the the Hammitt interview Stanley because alcohol, marijuana, the influence of under given the outcome changed not have would ill ... psychiatrically He cocaine. was premeditation. of the evidence to the difference appreciate was able [and] Assistance of Counsel: C. Ineffective applied as to his right wrong between Sentencing Phase Bindelglas Dr. con- Similarly, actions.” that, report in his to the court “[a]t cluded trial counsel Stanley asserts that ... the time of the offense the defendant’s during sentencing ineffective the was ability clearly, to think reflect on the con- he “failed to offer the phase because and to control his sequences of his actions mitigating evidence that was at wealth of activity significantly impaired.” were Nei- appear to be two disposal.” There his cumula- expert regarding ther testified First, Stanley parts argument. to this Stanley. effect of substance abuse on tive that counsel failed to “call sin contends testimony expert during But while the expert testify health to at sen gle mental guilt phase clearly scope, limited its that all of the tencing, despite the fact Stanley provides suggest no evidence Stanley’s ... mental experts agreed testimony what additional would have been time of the capacities impaired were experts during if called given crime,” testimony and failed to offer “re sentencing phase explain the cumulative health, Stanley’s mental his low garding chronic substance effects IQ, explain, or to from a scientific stand abuse. point, drug how the and alcohol abuse Stanley argued petition in his state night have affected his actions on the could post-conviction relief that trial counsel ren- Second, Stanley argues of the crime.”6 by failing ineffective dered assistance investigate trial counsel’s failure to experts call mental health the sen- significance of the Hammitt interview However, tencing phase of trial. the state to the mental provide or information court did not address this issue. health constituted ineffective assis tance of counsel. that a it is clear state “[W]hen

During guilt phase, experts’ tes- court has not reached the merits of issue, timony properly focused on whether satis- raised we must review it de insanity, Morgan, not on novo.” Pirtle v. 313 F.3d legal fied the standard (9th Cir.2002) (citations abuse. and footnote the broader effects of his substance omitted). Nevertheless, court, report to the Dr. reference Specifically, his that, present sup failed to evidence to “[h]ad [Stan- Garcia-Bunuel stated contention, than ley] port not been the influence of a his other the evi under trial, alcohol, marijuana presented and co- he has failed to combination dence caine, alleged crimes would not have establish counsel rendered ineffective Stanley’s argument We Despite appeal, on stance abuse at the time of the offense. challenge in the court he limit our review to issue raised district confined McDaniel, testimony Gallego v. failure to offer the of ex- district court. See counsel's (9th Cir.1997). regarding impairment 1072 n. 7 perts due to sub- F.3d failing present through evidence to assistance exonerated individuals 3,400 Stanley’s “spent than years prison the cumulative effects of more explain for abuse. Cox v. Del for which chronic substance See crimes should never have (9th Cir.2008) ”). Papa, 542 F.3d been convicted ... note phe- We this (“Without nomenon, any specification mitigat- not to that imply Stanley is inno- unearth, cent, ing emphasize evidence that counsel failed to but to that it is never too fail.”) (citation injustice. claim an petitioner’s] must late to correct [the

omitted). out point We also that because the dis trict court an addressed whether evidentia a stronger argument has ry warranted, hearing was issue is regarding use of the Hammitt interview as squarely presented appeal. on See Se mitigation sentencing evidence the Ignacio, chrest v. 549 F.3d 810 n. 10 phase. pause We for a moment to note Cir.2008). (9th Finally, it important is dissenting colleague’s disturbing argu our keep mind that our decision in way no passage ment the of time should conviction, Stanley’s may affects it militate against habeas relief. somehow affect his sentence. All this decision does In Dissenting Opinion, pp. See 628-29. give Stanley is the opportunity to establish deed, all in fil Stanley has met deadlines whether his fully counsel’s failure to in relief, ing post-conviction including for the form the defense mental health experts AEDPA deadlines. After restrictive undermines confidence in the sentence of Supreme Stanley’s Arizona affirmed Court Strickland, imposed. death See 1991, Stanley prelimi conviction in filed a 694, 104 nary petition post-conviction relief in review, nearly the trial court. The trial court took post-conviction Superior On years deny petition though five even Court of the State of Arizona held that it than hearing. did not hold a Less three trial counsel’s decision to withhold the Supreme weeks after the Arizona Court’s Hammitt interview tacti- was reasonable petition, Stanley possible denial of state cal decision because “the harm to petition. filed his federal habeas The dis the defense which could be caused use eight years trict outweighed court took more than of Dr. Hammitt’s interview deny petition. Stanley then promptly possible benefits the use of the interview to the Ninth appealed might produce.”7 Stanley, Circuit. For the State v. No. suggest lengthy pro (Ariz.Super.Ct. May

dissent to CR at 7 cess, 1997). that, none of it due to a lack of The court diligence concluded “with Stanley’s part, deny on is reason to him an regard sentencing, to the issue of Dr.

evidentiary hearing every violates sense of Hammitt’s interview could have under- (sic) Moreover, justice. fairness and in claim mined the of a disassociative creasing frequency holding with which innocent reaction ...” Id. Without evi- people years dentiary have been hearing making any findings vindicated after or imprisonment tri- ap regarding investigation underlying counsels different al., decision, R. al proach. See Samuel Gross et Exon counsel’s the court found that through “[Stanley’s] erations in the United States 1989 determination not to waive the Criminology 523, physician-client privilege L. & a matter of J. Crim. (2004) (noting strategy pres- 523-24 from 1989 reasoned trial and does not Superior rejected 7. The claim decision Court on Court's last reasoned decision merits, Supreme and the Arizona Court of the state courts. Thus, summarily Superior denied review. (citation facts.”) omitted); was lishment of hard claim that trial counsel

ent colorable Stewart, 1112, 184 F.3d failing to do so.” Id. see also Wallace v. ineffective for Cir.1999) (“[T]he (9th lawyer’s n. has not failed petitioner aWhere might guilt phase burden differ at the of his claim factual basis develop to ”). ... penalty phase from that at court, required 28 U.S.C. State as is aware of facts Even where the sentencer 2254(e)(2), evidentiary hearing on a § an case, underlying mitigation the defendant’s required where petition is corpus habeas necessarily on may trial counsel not rest true, if would allegations, petitioner’s Caro, at 1227 these facts. See 165 F.3d relief, petitioner and the has him to entitle although jury had in- (clarifying that of Townsend v. requirements satisfied regarding the defendant’s back- formation 745, Sain, 9 L.Ed.2d 83 S.Ct. it not “have the benefit of ground, did Morgan, v. Insyxiengmay See expert testimony explain to the ramifica- Cir.2005). (9th n. 6 A 670 & 403 F.3d on background] tions Caro’s behav- of[this previously sought and petitioner who has ior”). evidentiary hearing has not denied an been the factual basis of his develop failed to testimony regarding if expert Even 2254(e)(2).8 § satisfies claim and therefore at Stanley’s mental state the time of Scribner, Estrada v. 512 F.3d See crime would not have been admissible to (9th Cir.2008). n. 7 Under Town challenge premeditation, as discussed send, justified evidentiary hearing an is above, it would have been admissible and where, here, “the material facts were as highly sentencing. relevant at Evidence developed at the state- adequately not of might not rise to the level defense hearing.” 372 U.S. at court may important of a crime nonetheless be Therefore, Stanley is entitled to an 745. mitigating evidence. See Frierson evidentiary hearing on his ineffective assis n. 12 Woodford, 463 F.3d 993-94 & allegations, proved, if if tance claim his (9th Cir.2006). relief. would entitle him to federal habeas Insyxiengmay, 403 F.3d 670. The See Wallace, In we held that trial apply standard we to determine whether duty provide counsel has an affirmative entitle alleged facts would mental health with all information relief deferential standard of 28 is the relevant to the formulation of their conclu Estrada, § U.S.C. 2254. See 512 F.3d Wallace, “A sions. 184 F.3d at 1117. See 1235. lawyer who knows of but does not inform pieces about essential expert witnesses miti- imperative

“It is that all relevant going of to the heart of the information gating information be unearthed for con- mitigation ease for does not function as capital sentencing phase.” sideration at the (9th under Amendment.” ‘counsel’ Sixth Calderon, 1223, 1227 Caro v. 165 F.3d omitted). (citation Al Id. alteration Cir.1999), emphasis as amended. The trial lack of effectiveness though counsel’s trial sentencing phase is different prejudicial guilt phase, not at the dur was guilt phase. than that of the See id.

(“The ing sentencing, mitigation “where evidence impose determination of whether may key avoiding well the death ordinary legal a death sentence is not an be (citation penalty,” analysis turns on the our differs. Id. determination which estab- hearing. petition post-conviction petition denied without a In his state re- His lief, Stanley sought evidentiary hearing. omitted). Indeed, if the district court death sentence was on based following aggravating circumstances: being that rather than persuaded were (1) Stanley was convicted of one other murderer, Stanley “snapped” cold-blooded homicide in connection killing with the it daughter, his wife and and killed (2) at daughter; the time of the mur- that he could have avoided a unlikely at all der, Stanley daughter was an adult and his See, Carlson, e.g., State death sentence. (3) years age; was under 15 Stanley and (2002) 1180, 1197-98 202 Ariz. 48 P.3d committed the murder of his in a (en banc) (reducing penalty a death life depraved manner. These were balanced possibility parole the prison in without against following mitigating circum- circumstances). upon mitigating As based (1) Stanley prior felony stances: had no Wallace, Stanley in we conclude “has (2) record; he an adequate family “was facie case” of ineffective prima made out a (3) man;” attempts he made to address his Wallace, See assistance of counsel. (4) drug problems; and alcohol “he had F.3d at 1118. very exhibited little violent behavior or (5) abuse;” In the view “all that we are dissent’s spousal he was “remorseful supplementation of talking Stanley, about” is for his crimes.” 809 P.2d 954. “testimony rejected The court considered and experts’ Stanley’s

defense with Stan- ley’s assertion that capacity appre- “his watching’ that ‘he felt like he was remark ” wrongfulness ciate the of his conduct or really and like he wasn’t there.’ Dissent- ability to conform his conduct to the beg 632. to differ. ing Opinion, p. We requirements of the “significantly law” was experts agreed Both defense that the in- impaired” at the killings. time of the Id. regarding Stanley’s apparent formation at 956. have completely dissociative state would in

changed testimony Stanley’s their favor Bindelglas The statements of Drs. permitted argu- and would have a credible Garcia-Bunuel undermine in confidence First, the state court’s against alleged depravity balancing. ment that is regard- introduce additional residual doubt prominent dissenting colleague’s so in our ing culpability killings for both discussion. by casting additional doubt on his premedi- relief, Stanley To warrant habeas is also They weigh against tation. also

required prej- to demonstrate that he was finding court’s killed his by failing. udiced counsel’s See Strick- manner, daughter in a depraved land, 466 U.S. at 104 S.Ct. 2052. they suggest that he was not in control at Prejudice by showing is established a “that In killings. the time of the relation to the that, probability there is a reasonable but finding depravity, a dissociative reaction errors, unprofessional for counsel’s the re- explain how would could have been proceeding sult of the would have been concealing so intentional about wrong- different.” Id. at yet doing killing, after not have been only “a probability need show suf- killing intentional about the itself. Most ficient to undermine confidence the out- significantly, support with the of the Ham- assessing prejudice, come.” Id. “In interview, we mitt the statement of the ex- reweigh aggravation evidence perts supported finding would have against totality of available mitigating Stanley could “conform his conduct to Woodford, Therefore, evidence.” Stankewitz v. requirements of the law.” (9th Cir.2004) (citations that, if proved, Stanley’s F.3d omit- we conclude alle- ted). gation preju- would establish he was claim and as to the claim of ineffective counsel’s failure to investi-

diced trial RE- during guilt phase, assistance develop mitigation case based gate and VERSE the district court’s denial as to the Hammitt interview. on the claim of ineffective assistance dissenting our agree cannot We REMAND for an sentencing phase. We counsel’s failure to colleague that defense evidentiary hearing that claim. In on so health of Stan- inform the mental doing, express opinion we no as to the Dr. Hammitt was a ley’s statements to Stanley’s petition. ultimate merits of tactical decision at the sentenc- reasonable part, AFFIRMED in REVERSED entirely trial. It ing phase of the part, and REMANDED. keep reasonable to this evidence out Stanley was still chal-

guilt phase because FLETCHER, Judge, BETTY B. Circuit admissibility of lenging the his confession concurring: testimony regarding his statements to Dr. Hammitt would have established an majority opinion I concur in the affirm- However, guilt. independent ing admission of the district court’s denial of the Mi- evaporated that consideration once randa claim and the claim of ineffective Moreover, because the ad- was convicted. during guilt phase, assistance and its expert testimony regarding of mission of the of reversal district court’s denial mental of the defendant at the time during state claim of ineffective assistance Arizona, any in of the offense is barred I sentencing phase. also concur in re- testimony attempt expert to introduce the manding evidentiary hearing for an on that during guilt phase would have been claim. opposite

futile. Just the was true for the I I separately write because find an That sentencing phase. was the time for ground additional for reversal of the dis- to all mit- defense counsel muster available trict court’s denial of the ineffective assis- igation Testimony evidence. from the de- claim the sentencing phase. tance experts fense would have countered Dr. Stanley alleged has claim colorable of testimony Hammitt’s on a two-to-one basis ineffective assistance for the failure to call explained how could have act- mental health experts during sentencing. in depraved ed such a manner the time argues competent He counsel would killings. of experts testify have called mental health Stanley’s types “Stanley’s to two of evidence: men- allegation supported Because health, IQ ... by expert testimony him tal his low how the [and] would entitle relief, drug alcohol federal habeas the district court abuse could have affected night his actions on the of the crime.” denying peti- abused its discretion in his evidence, evidentiary properly presented, tion an Such has a hearing. without See Wallace, probability” affecting “reasonable of (remanding 184 F.3d at 1118 for sentencing outcome of the evidentiary hearing proceeding. under similar cir- cumstances). 668, Washington, Strickland 2052, 104 L.Ed.2d 674 Thus, I expand scope

IV. would evidentiary hearing on remand include CONCLUSION Stanley’s right whether constitutional reasons, foregoing For the we AFFIRM effective assistance of counsel was violated petition lawyer’s any the district court’s denial of the his failure to call mental sentencing. corpus experts writ of habeas as to the Miranda health majority does not include this as- ineffective assistance based on failure to appeal present expert testimony in its reversal for witness on im- pect (ARS 13-703(G)(1)) reasons, § paired capacity of which I will address two each —in- First, just than majority type refuses to cludes more that one in turn. evidence, in present failure to and was raised the district

consider trial counsel’s testimony Stanley’s general on court. expert “in capacity

mental the district Moreover, if I accept even were to challenge to court he confined his counsel’s issue, majority’s on I view this would still testimony failure to offer the justice requires find that us to include it regarding impairment due to substance Waiver, all, our review. after is not a limit abuse at the time of the offense. We jurisdictional limitation, and we retain dis our review to the issue raised the dis- cretion to consider issues for the first time 6, citing Majority Op. trict court.” n. See, appeal. e.g., Myers on v. Merrill McDaniel, Gallego v. F.3d (9th Co., Lynch & 249 F.3d (9th Cir.1997). adequately n. 7 But it was Cir.2001); Telco Leasing, Inc. v. Trans Stanley argued raised. to the district Co., (9th western Title 630 F.2d lawyers were ineffective in court Cir.1980). The state prejudiced ca- pursuing mitigation based on mental ability its to respond to this issue and pacity. His Petition for Writ of Habeas vigorously argued it on appeal. that,

Corpus stated Second, majority rejects Stanley’s the trial sentencing hearing, In the counsel claim of ineffective assistance for failure to any failed to call of the mental health present evidence to explain the cumulative Furthermore, experts as witnesses. he Stanley’s effects of chronic substance failed cite the above conclusions of [sic] abuse, because “he failed to present has sentencing hearing the in the or contention, support evidence to other reports that their established the argue presented than the evidence at trial.” Ma statutory a cir- mitigating existence of jority Op. citing Papa, Cox v. Del 542 § to 13- pursuant cumstance ARS (9th Cir.2008) (“Without any F.3d 703(G)(1). specification mitigating of the evidence 13-703(G)(1) § specific drug is not to ARS unearth, peti that counsel failed to [the evidence, pertains fail.”) (citation but to mental in- abuse claim must omit tioner’s] ted). capacity general: in “The defendant’s ca- disagree. Stanley argued I has pacity wrongfulness to the of appreciate provided his counsel ineffective assistance because, his conduct or to conform his conduct to sentencing “[a]lthough at a few requirements significantly of law was testify very briefly witnesses did about use, ... impaired, impaired drug testimony but not so as consti- there was no prosecution.” explain, standpoint, from a scientific tute defense es- how Stanley’s argument appeal drug sence of on is and alcohol abuse could have lawyers presented night that his should have affected his actions on the enough suggestion ev- crime.” That is of impaired capacity, available evidence IQ, testimony idence of his low the head trauma he “what additional would have child, given by experts” suffered as a and his chronic been to make out a sub- early age. prejudice stance abuse from an It is true colorable claim of and to entitle court, Ma hearing in his Petition to the district to a on the matter. Calderon, specifically lawyer’s jority Op. referred to his 622. See Caro v. (9th Cir.1999) (as amend present failure to the mental health ex- F.3d ed) (finding although jury had perts’ regarding conclusions his substance However, it background, claim— information on defendant’s underlying abuse. evidentiary on expert hearings testimo Federal state

did not “have benefit of [this the ramifications ny explain petitions habeas are limited and discretion- behavior”); Frier background] on Caro’s why. reason ary.1 This case shows one (9th F.3d Woodford, son typically Murderers sentenced to death Cir.2006) (“The misappre court district many participants outlive of the other purposes drug for the hended the different trial. murdered his wife and phase of trial. Evidence evidence each evidentiary in hear- 1986 and the drug may not history of a of chronic abuse ing place, probably, would take in to demonstrate that have been sufficient quarter century almost a later. Because requisite lacked the mental [defendant] lawyer would be whether his the issue crime, the extent of [de state for the but assistance, rendered ineffective the focus drug early age use from an fendant’s] did, asking lawyer would be on what he important mitigating factor do, why what he did not he acted or jury opportunity not have an to consid did acting refrained from as he did. That er.”) lawyer happen, cannot is Therefore, majori- in while I concur nothing dead. There is unusual about I am ty opinion, compelled to set out these lawyer adequate the level of experience reversing additional reasons for the dis- penalty dying to defend death cases remanding trict court and for an evidentia- trial, quarter century nor following ry hearing. anything there unusual about the decades appellate between trial and a favorable KLEINFELD, Judge, Circuit § in a If decision 2254 habeas case.2 concurring part dissenting part: alive, lawyers are still it is a stretch to majority’s rejection I concur in the of pretend they everything, remember Stanley’s claims that his was confession if even have retained their ancient inadmissible, and lawyer that his rendered case, if notes. And this even he were guilt phase ineffective assistance the alive, lawyer’s jus- responses could not I respectfully his trial. dissent from the tify relief.3 majority’s Stanley decision that is entitled case, Stanley In this did not even evidentiary an ask hearing on whether his evidentiary the district court to lawyer rendered ineffective assistance in hold penalty hearing on claim. phase. his He had asked for 465, 473, Landrigan, increasing frequency 1. Schriro v. U.S. 127 with which innocent 1933, (2007). 167 L.Ed.2d 836 people years have been vindicated after imprisonment.” Majority Opinion See at 623. See, e.g., Ignacio, Sechrest v. 549 F.3d 789 important I can think of few tasks more than Cir.2008) (9th (twenty-five years passed be- freeing people innocent have been who grant tween state court conviction and of fed- wrongly imprisoned. Stanley does not claim relief); Woodford, eral habeas Frierson v. among majority to be the innocent. The does 982, (9th Cir.2006) (twenty-eight F.3d suggest any possibility not is innocent. he years passed between state court conviction relief); grant Landrigan of federal habeas delay only matters here because the Schriro, (9th Cir.2006) (eigh- 441 F.3d 638 may unspoken issue is what seem to be an years passed teen between state court convic- anyone rule in our circuit that sentenced to relief), rev’d, grant tion and of federal habeas death had ineffective assistance of counsel 127 S.Ct. 167 L.Ed.2d sentencing phase or at of his trial evidentiary hearing least needs an decades See, sentencing e.g., after to find out. Pinhol majority my 3. The finds comment about the (9th Cir.2009) (en passage "disturbing” Ayers, of time because of "the ster v. 590 F.3d 651 court, so no doubt made a child. He shot his wife dead with three in state one shots, request head, decision not to one one to the considered left side her one court, he had no perhaps lips, because her through top federal under one of her head, The district present. evidence to planted useful with the muzzle on her skull. granting considered court nevertheless year And he murdered his five old and concluded “after re- hearing, such a daughter. put gun He the muzzle of the record, that none of Petition-

viewing top pulled on the of her skull and evidentiary develop- er’s claims warrants trigger. pathologist The forensic testified true, if allegations, even ment because Stanley the shots fired through the relief.”4 not entitle Petitioner to habeas do tops daughter’s of his wife’s and his skulls majority concludes that Yet somehow wounds, is, were contact the muzzle court abused its discretion the district touching their skulls.6 Stanley hearing he did not ask giving receive, for, not entitled to Significantly, Stanley spared baby. and was findings would not entitle which His eleven month old sitting son was next error, not the district relief. That is our daughter, to his but Stanley did not shoot court’s.5 why this child. The affected .reason death sentence. Stanley shot his

Facts might because she otherwise have testified him, against spared baby took his wife and two children ride, baby testify for a and murdered his wife and older could not against him. banc); (9th Ayers, respondent sought Belmontes v. 529 F.3d 834 relief because the evidence — reversed, Belmontes, Cir.2008), Wong v. changed to introduce would not have the re- - - -, U.S. 130 S.Ct. L.Ed.2d sult). Schriro, (2009); Landrigan v. 441 F.3d 638 reversed, (2006), Landrigan, Schriro v. majority opinion suggests 6.The that the hei- U.S. 167 L.Ed.2d 836 details of the nous two murders are immateri- (2007). My colleagues and I share a concern legal al to the merits of the issues. That getting accurate results from the courts argument is mistaken. The heinous details wrongful imprisonment to avoid of the inno- why judge were sentenced ought cent. We also to share a concern with question death. Our critical the is whether getting accurate and reliable results on judge Stanley trial would have sentenced to lawyers ineffective whether rendered assis- penalty phase judge death if at the the trial tance, accomplished a best when the task Stanley's had heard statements to Dr. Ham- lawyers who rendered the are assistance alive mitt, doctors, opinion as well as the from two explain why they to what did and did it. doctor, Stanley instead of one had a suggest delay Stanley's I do not that the is dissociative The reaction. details of the mur- My point preceding that the fault. decades daughter together der of the with sentenc- evidentiary hearing lawyer an on what his did ing judge's provide comments on that murder why hearing and make the unreliable where judge already lawyer testify the answer. The trial had he cannot because is dead. testimony heard from one of two doc- these Schriro, CV-98-0430, Stanley v. No. reaction, Stanley tors had a dissociative (D.Ariz. 2006). Sept. WL at *33 Stanley might and from the other doctor Having a have had dissociative reaction. Landrigan, 5. See testimony, judge heard this the trial neverthe- (reversing holding the Ninth Circuit and Stanley did less sentenced to death because of the that a district court not abuse its discre- refusing grant evidentiary close-range style killings, tion in to hear- execution and ing to death row inmate where it determined daughter he killed his in order to that, assuming even the truth of all facts re- eliminate her as a witness to her mother’s prove spondent sought hearing, at the re- murder. spondent not entitled federal habeas them, gotten pissed off Stanley dumped phony The “must

After he killed daughter’s corpses pull- story apart and taken off’ fell the next his wife’s and road, carrying bloody to the side of the ing day, police over when found the blanket edge, dumping it. body each repair shop. and seat cover at the The home, showered with his in, Then he drove police brought Stanley and he confess- blood, out the and drove clothes on to wash why daughter ed. Asked he shot his but shop to clean repair his car to his father’s baby, Stanley not the said it was “because bloody seat cover and it out. He hid daughter] had seen he had she what [the trash, a in the but he missed blanket done,” baby any- “could not tell but baby, he took the bloody sock. Then body In what he had done.” home, groceries purse, wife’s and some VCR, found the police videotape way for stopping off on the some beer. described, stopped convenience store had partway through. home, Stanley baby’s changed At laundry, put a load of diaper, started arrest, morning Stanley after his baby to bed. Then he drove to a jail spoke psychiatrist, with the Karleen B. store, a videotape, convenience rented and Hammitt, M.D. Dr. Hammitt concluded story. a The store clerk up phony set insane, Stanley psychotic, was not him remembered because he rented one of Stanley not even remorseful. told her that “racy” Stanley the store’s few videos. them,” “he flew off the wall and shot asked if clerk had seen a woman and right away “realized what he had done.” girl that evening. little earlier When the He said that also he felt “like he was them, Stanley hadn’t clerk said he seen watching and really like he wasn’t there” gotten

remarked that his wife “must have during Stanley the murders. denied ever off.” pissed off and taken This was after (i.e. having auditory heard voices no hallu- them, dumped had murdered their he bod- cinations, tending psychosis). to rule out ies, blood, away and washed their so he Dr. Hammitt “never volun- said perfectly knew well that his wife had not or, any teered comments about remorse “taken off.” know, you just if I had done this or that differently gotten my or treatment At around pm, 11:30 called his drinking problem anything or done differ- police report father and the his wife and ent,” during meetings Al- her. daughter “missing,” continuing decep- though great cried deal begun tion he had with the convenience (48 their initial meeting hours after the store clerk. He told them his wife and murders), Dr. Hammitt told the defense family went for walk with the investigator that dog p.m. “[n]othing [Stanley] said around 10:45 and had not re- Stanley’s family any degree turned. to me police per and the indicated of remorse began searching neighborhood. the se.”7 majority opinion suggests Stanley

7. The that Dr. cause cried. I read Dr. Hammitt as "[njothing taking special Stanley say Hammitt's statements that that [Stan- note did not a ley] any degree indicating said indicated to me of re- word that he was remorseful. As per crying, that he morse se” and “never volunteered for his that could be for and his wife murdered, himself, any cry daughter, comments about remorse” are "a far whom he had or Stanley appears from a definitive that statement and Dr. Hammitt’s discussion to have Majority Opinion sentencing judge Stanley lacked remorse.” See meant to the that majority evidently crying murdering 617. The would infer re- was not out of remorse for said, despite daughter. morse what Dr. Hammitt be- his wife and (5) testimony of family; one’s own the the degree first Stanley charged was with and indicating Stanley of his wife clerk that for the deaths video store murder guilt phase the During under the influence of daughter. appear did not be trial, sought (6) to avoid conviction Stanley drugs; type and the of video alcohol or (1) that: by arguing murder degree first shortly hiding after Stanley rented investigation a sloppy conducted police crime. From this evidence of his brutal evidence; only circumstantial resulting evidence, judge concluded Stan- confession; (2) Stanley’s police coerced daughter to kill his was the ley’s decision (3) premedi- Stanley capacity lacked the intelligent, rational calcula- product of deliberate, high too having been tate or tion, requisite heinousness and showed form the at the time to and too drunk impose a death sentence. depravity and (4) intent; Stanley met the and requisite sentencing judge’s explanation: Here is insanity. support, In legal test for first note that it The Court will experts. health called two mental defense beyond a convinced reasonable doubt a “disso- Stanley had suffered thought One that Defendant did state that he had may have met the ciative reaction” daughter killed his because she had seen at the time of M’Naughten insanity test for what he had done and that his son was thought The other a dissoci- the murders. young too to talk about what he had “unlikely,” could not reaction was but ative seen. The is likewise convinced Court rule it out. beyond a reasonable doubt when Stanley convicted jury The nevertheless Defendant made these statements to the the deaths of his degree of first murder for entirely officers were made volun- daughter. After re- five-year-old wife and beyond tarily and is further convinced a all the testimo- viewing the entire file and reasonable doubt these statements of life ny, judge imposed sentence reflect the true state of mind of Defen- Stanley’s for the murder of imprisonment dant at the time of these murders..... judge imposed The a sentence of wife. are When Defendant’s statements five- for the murder of death together considered with Dr. Keen’s tes- daughter.8 year-old timony shooting that the of Susan Stan- judge based his decision sentence very ley accomplished was close of his five- Stanley to death for murder wound, one contact range, including (not wife) on a com- year-old daughter shooting of Selest was (1) aggravating circumstances: bination of wound, hard contact the Court single she killed his deliber- has concluded Defendant him mother and had witnessed murder her ately any danger excluded Chad from (2) seen; tell what she had could intelligent based on his and rational con- baby baby kill the because the did not could not relate to clusion that Chad seen; had young too to talk about what he ... anyone what Defendant had done. (3) execution-style contact wound on (4) depravity involve the skull; Heinousness the brutali- Stanley’s daughter’s and attitude at the killing killer’s mental state inherent ty and senselessness subsequently Ring decided that The Court In 1986 when was sentenced death, retroactively imposed apply to cases such as does not Arizona death sentences were the convictions and sentences judge, jury. Supreme this one where by the Ring decided. Schriro v. Ring were final when in that the Consti- Court held Arizona 2519, Summerlin, 348, U.S. 124 S.Ct. 159 procedure. U.S. 542 precludes that tution 2428, (2004). (2002). L.Ed.2d 153 L.Ed.2d Gretzler, Finally bearing on killing. In State v. Defendant’s state time of the (1983), videotape our of mind is the to. Ariz. 659 P.2d testified Cook, specific According testimony a to the of Mr. set forth list Supreme Court just to a within a short time after the kill- finding could lead factors which depravity. ings, disposal attempts These factors of the bodies and heinousness or evidence, of the crime to hide Defendant was at Mr. included the senselessness place “racy” of the victim. In Cook’s of business to rent a helplessness and the Gillies, addition, videotape, by in identified our Court State v. Officer Saravo (1984) Anything later as entitled “Best of 142 Ariz. 691 P.2d 655 stated Goes”, a a dealing strip game that of a witness as a motive video with elimination appear show. Defendant did not to be for murder also illustrates heinousness depravity. any and under influence of alcohol or drug at the time he rented this video- the motive for the Addressing first tape in apparently some time above, killing, as noted the Court is con- twenty-four next hours before he was beyond a reasonable vinced doubt arrested had it. part watched Defendant murdered Selest to eliminate When these factors are considered to- a her as witness. gether, they paint picture of a man Addressing next the senselessness of depraved so kill help- he could victim, helplessness the crime and child, year completely less 5 old who was regard instructive in this is the recent dependent trusting on him and of his Wallace, case of State v. 151 Ariz. her, goodwill toward kill her for no rea- 728 P.2d 232 Here the Defen- son other than to eliminate her as a brutally dant murdered a mother and witness, then, rolling body after her her two children. As noted the Su- mountainside, sought down a to idle Court, preme Defendant committed away by indulging his time himself in despite these acts the fact that he watching strip game Beyond show. people claimed to have loved these doubt, reasonable proven State has family he had lived with them as a that Defendant committed the murder of years. Focusing for more than two in Selest Dawn especially children, specifically on the the Court depraved manner. stated: remarks, plain judge’s As is from the he “Moreover, the fact that Defendant Stanley’s viewed murder of his children, killed two with whom he ad- as a cold-blooded execution of a witness to mittedly dispute keep had no and who her talking, from and that was the posed danger no himto is additional most central fact judge’s on the mind in ‘shockingly passing evidence of his evil state of sentence. That would not have (Citation omitted) changed mind.’ We there- if supple- the defense had statutory fore find that the aggrava- testimony mented their mental state ting factor of depraved Stanley’s heinous and is remark that “he felt like he was present watching really the instant case.” 151 Ariz. and like he wasn’t there.” at page 728 P.2d 232. And that all that talking we are about.9 majority suggests my ty 9. The view mini- mischaracterizes effect of the remarks Stanley’s experts' positions by saying mizes the effect of remark on the on the defense penalty phase Majority Opinion completely of the trial. that this information "would Rather, majori- changed testimony at 624-25. I that the believe their favor[J” out, majority correctly points our view As the authority to substitute lackWe for ineffective assistance re- sentencing judge’s on wheth- habeas relief state for the things: performance for murder- deficient quires be executed two Stanley should er attorney under the v. ing daughter. by Strickland standard, Washington prejudice.13 Analysis. assistance of counsel in viola- Ineffective of review. I. Standard repre- tion of the Sixth Amendment is objective falls “below an sentation discretion, had bound- The district court in light standard of reasonableness” standards, grant an evi- by whether ed professional norms” at “prevailing deciding “In whether to dentiary hearing. time of the Counsel’s evidentiary hearing, a federal an

grant representation.14 “ ‘strong pre- actions are reviewed with a hear- consider whether such court must counsel’s conduct falls sumption’ applicant prove ing could enable range pro- within the wide of reasonable which, true, if allegations, petition’s factual because it is all too fessional assistance to federal habe- applicant would entitle the easy particular to conclude that a act or AEDPA, the district Under as relief.”10 of counsel was omission unreasonable also bounded deference was court’s light The Su- harsh the state it owed to deference hindsight.”15 court,11 “strategic has stated that preme Court by the additional our review bounded thorough investigation choices made after we owe to district deference court.12 plausible op- and facts relevant to jump over this of law have no warrant We virtually are tions triple deference. unchallengeable.”16 may Bindleglass how Dr. Hammitt’s statements have had Majority Opinion at 624-25. Dr. sentencing phase. hurt in the Stan- that he would have testified that states reaction, ley a dissociative but that was had 474, Landrigan, 10. 550 U.S. at 127 S.Ct already position at trial. Dr. Buñuel 1933. opined that that he would have states reaction, opposed as to his had a dissociative 2254(d)(1); § 28 U.S.C. Williams v. 11. See Stanley might position at trial have had 404-05, 1495, 362, Taylor, 529 U.S. 120 S.Ct. superior The state a dissociative reaction. (2000). 146 L.Ed.2d 389 Bindleglass judge, not Dr. or Dr. Buñ- court uel, sentencing responsibility. had It is clear 468, 481, Landrigan, 550 U.S. at 127 S.Ct. sentencing judge’s remarks that Dr. from the (reviewing for abuse of discretion the “might change from have had” to Buñuel's grant an evi- district court’s decision not to reaction would not "did have” dissociative dentiary hearing). changed sentencing judge's mind. 668, Washington, 466 U.S. 13. Strickland sentencing judge commented on various 694, 2052, (1984). 104 S.Ct. 80 L.Ed.2d evidence, aspects but this one. explanation for the sentence focused on His 2052; Bobby 14. Id. at 104 S.Ct. see also Stanley’s helpless child because

murder of Hook, - U.S. -, 13, 16- v. Van 130 S.Ct. witness, might be a not on the she otherwise 175 L.Ed.2d 255 Stanley's psychological underpinnings judge already was thus conduct. The trial Cone, 685, 702, 535 U.S. 122 S.Ct. 15. Bell v. expert testimony presented defense re- (2002) (quoting L.Ed.2d 914 Strick- theory, garding the dissociative reaction land, 2052). S.Ct. him to death nevertheless sentenced , —U.S. length -, above. More- reasons discussed Mirzayance 16. Knowles v. over, only 1411, 1420, (2009) we cannot consider how Dr. Ham- 173 L.Ed.2d 251 Strickland, might (quoting statements have been favorable 466 U.S. at mitt's 2052). sentencing phase, but also in the by attorney objectively is tance decision was unreason- performance Deficient however, support single able. The record does not a enough, not to establish Sixth requirements one of these for reversal. petitioner The Amendment violation. prejudiced that he was

must also establish performance. II. Deficient attorney’s performance. by the deficient is “a reasonable prejudice “strategic The standard Because choices made after that, unprofes- thorough investigation but of law and probability counsel’s facts errors, proceedings plausible options virtually result of the relevant to are sional unchallengeable,”21 v. the state court might Wong have been different.”17 cannot fairly unreasonably applied be said to have Belmontes18holds that we cannot consider in determining Stanley’s Strickland merely the best evidence the defense lawyer’s decision fell below “the wide might presented, but instead must range professional of reasonable assist consider all of the evidence that would ance];.]” penalty phase have come into a of a trial (both if mitigating aggravating) Stanley’s no claim lawyer There is lawyer had made different choice.19 investigate, discover, failed to or failed to psychological psy- some sort of available or

Thus, reverse, we have to conclude that, Stanley’s theory chiatric evidence. (1) Stanley’s lawyer’s conduct not just jail full well knowing psychi- what the showing his expert witnesses the notes observed, lawyer atrist had should have jail psychiatrist (Stanley’s what the said provided jail psychiatrist’s notes and remark) “felt like watching” he was fell transcript investigator’s of his own in- objective below an standard of reasonable- jail psychiatrist terview to the two ness, impossible almost since it was strate- witnesses who testified for defense (2) gic; judge might have sentenced Stanley’s about mental condition. imprisonment to life instead of death had he heard testi- answered, question ap- first to be fy by jail after had been informed case, plying Strickland to this is whether (3) observations; psychiatrist’s the state providing not strategic, the notes was contrary court’s decision to the was “strategic choices made after merely beyond incorrect but went error to thorough investigation of law and facts (4) unreasonable;”20 being “objectively plausible relevant to options virtually are though Stanley’s lawyer even habeas did unchallengeable.”23 The record admits evidentiary not ask for an hearing, answer, yes. Stanley’s one lawyer but judge district abused his discretion not made an in limine keep motion to conducting anyway jail one to determine psychiatrist’s evidence out of the tri- al, whether the state ground court’s ineffective assis- on the it protected - Belmontes, -, 19, 22, Wong 17. v. U.S. 123 S.Ct. 154 L.Ed.2d 279 — 383, 386, S.Ct. L.Ed.2d - Strickland, (2009) (quoting 466 U.S. at 104 S.Ct. 2052). Knowles, (quoting 21. 129 S.Ct. at 1420 Strick- land, 2052). 466 U.S. at 104 S.Ct. -, 383, - 18. - U.S. 130 S.Ct. L.Ed.2d - (2009). Strickland, 22. 466 U.S. at 2052. 19. Id. at 386. Williams, Knowles, 409-10, (quoting 23. 529 U.S. at 129 S.Ct. at 1420 Strick- S.Ct. 1495; Visciotti, land, 2052). see also 466 U.S. at Woodford Stanley him at risk for self harm. told her The privilege. physician-patient

by yelling and at him about testify, her that his wife had been wanted prosecution wall, Stanley prevailed off the and he drinking, did not. his he flew the defense the state court immediately her out. As he had done. keeping in realized what purpose of observed,24 so for the voices, he did He had never heard and she “found unfa- hearing her jury from keeping psychotic thought pro- indicators of no Stanley was neither that opinion vorable sequiturs were no non in cess.” “There remorseful. nor psychotic “really off the wall” or speech,” nothing about,” talking “unrelated to what we were reasonably concluded court The state that “really nothing to make me think Hammit’s Stanley had disclosed Dr. that if psychotic process going there was a on.” (the parties to third interview or notes Additionally, Stanley she noted that “never Stanley would have experts), defense any comments re- volunteered about privilege and physician-patient waived morse.” successfully have later reassert- could not jail psychiatrist could ed it.25 Thus remark Dr. Hammitt that single The addition, opinion In her

have testified. majority thinks would have turned the and showed Stanley psychotic that was not Stanley’s lawyer whole case around had brought out could have been no remorse disclosed it to the defense was “he cross examination of Stan- by prosecution watching said it was like he was and like He would have ob- ley’s experts.26 own if he wasn’t even there.” Asked she very prosecution witness one bad tained Dr. Ham- thought psychosis, that indicated witnesses, own two compromised thought I it had probably mitt said: “No. jail psychiatrist’s in- he disclosed the had of intoxi- something to with whatever state to his own witnesses. formation cation he was involved at the time as Dr. Hammit’s statements are devastat- people well as the fact that most don’t ever Dr. tes- Bindleglass case. ing going that are believe themselves Stanley for the defense that suffered tified be in the situation like he found himself reaction, resulting in such a dissociative Dr. Hammitt up.” when he sobered Thus was “tru- impairment marked conclusion rejected experts’ the defense time of the mur- ly incompetent” at the this comment was evidence of a disso- Dr. Buñuel testified ders. ciative reaction. Dr. Hammitt considered remorse, may have suffered a showed statement “within the continuum of jail psychiatrist, The dissociative reaction. experienced by person that are things morning after he who saw who is intoxicated.” arrested, opposite conclusions. came to the if imagine why, It a reason he is hard investigator told the defense She out, devastating evidence keep could this depression from and she Stanley suffered not do so. And he jail consider defense counsel would authorities to had advised data, (Ariz. underlying facts or unless the court Stanley, CR at *7 v. No. State 20, 1997) Yavapai County May expert may any Superior requires Ct. otherwise. (order petition). denying state habeas underlying required event be to disclose cross-examination.”); State facts or data on Mincey, 141 Ariz. 25. See State v. Hummert, 933 P.2d 188 Ariz. 1180, 1194 (1984). P.2d ("It (Ariz.1997) well established expert's opin- for an in Arizona that the basis (“The expert may testify 26. Ariz. R. Evid. 705 cross-examination.”). game ion is fair give opinion inference and in terms of or prior without disclosure of reasons therefor trial, filed a matter of strategy did. Before defense counsel reasoned trial and does entirety present in limine to exclude “the of not claim that motion colorable trial notes, materials, reports testimony, failing counsel was ineffective for to do so.” secured, prepared, utilized includ- It further found that Dr. Hammit’s inter- and/or Hammitt, of’ Dr. ing presence the actual view “could have undermined the [de- any aspect “in whatsoever of the case con- claim of dissociative reaction.” fense’s] Stanley” pa- based on the cerning Milo application This is a sound of the Strick- tient-physician privilege. principle land that “strategic choices made thorough investigation after of law and penalty phase,

Before the defense coun- facts plausible options relevant to are vir- sel reminded the court of his successful tually unchallengeable.”27 and moved to strike refer- limine motion opinion ences to Dr. Hammitt’s from the Capable lawyers only evaluate not what presentence report. keeping Thus it out do, they ought to they ought but what not sentencing was also a considered deci- to do. Where action on behalf of a client sion, oversight. granted The court not has a backfiring, considerable likelihood of request. the defense It then ordered both they lawyers avoid it.28 Just as have no parties citing referring to refrain from or fail,29 duty pursue to likely defenses to penalty phase. to Dr. Hammitt duty pursue investigations likely no to to evidence, Dr. Hammitt’s had defense coun- harmful,”30 be “fruitless or even they have stricken, getting sel not it succeeded duty inject likely no evidence open would have tended to establish absence of the door to additional evidence that would remorse, psychosis, absence of and ab- be harmful. Much of strategic think- beyond sence of “dissociative reaction” ing good lawyer does during a trial is what people they normal have when realize something helpful about whether he would put have themselves in a terrible put like to open will the door to some- situation. thing harmful adversary will then be the “possible inject.

Because harm to the de- able to open Decisions not to fense which could [have been] caused door are “sound tactical reasons” for not outweighed calling use of Dr. Hammitt’s interview presenting witness or certain evi- possible benefits the use of the Stanley’s attorney inter- dence.31 Had disclosed might view produce,” the state court con- what Dr. Hammitt expert had said to his witnesses, cluded that counsel’s “determination not he would opened the door physician-client waive the privilege devastating was a testimony by rebuttal Dr. Knowles, Knowles, 1420-22; (quoting

27. 129 S.Ct. at 1420 29. Strick- 129 S.Ct. at see also land, Lewis, 2052). (9th Lowry 466 v. 21 F.3d U.S. 104 S.Ct. Cir. 1994). State, 28. v. Osborne 110 P.3d Cf. 776, 795, Eurger Kemp, (Alaska App.2005) (holding that de where (1987) (quoting 97 L.Ed.2d 638 guilty fense counsel believed client was Strickland, 2052). 466 U.S. at 104 S.Ct. there was a substantial risk that test would case, prove prosecution's counsel's deci Bell, 700-01, 31. See 535 U.S. at 122 S.Ct. highly discriminating sion not to obtain DNA 1843; Woodford, see also Williams v. 384 F.3d test was not ineffective assistance of (9th Cir.2004) counsel (holding that when miti- law) (discussed under Alaska in District Attor gating especially helpful” evidence is "not Osborne, ney’s - Third Judicial Dist. v. open damaging and “would the door to rebut- Officefor -, 2308, 2314, evidence,” U.S. tal it is reasonable for counsel to (2009)). it). L.Ed.2d 38 present decide not to wife), strategic ley’s decision to do but Dr. Hammitt’s evidence His not Hammitt. and, unchallengeable”32 likely. far would have that less “virtually

so is made Stan- rejection defi- ley’s problem establishing prejudice from court’s of his is that the state being claim expert cient unreason- even if his witnesses performance own would able, majority opinion our own differently, it is have testified the sentencing unreasonably applies make, Strickland. improv- decision not theirs to so judge’s their not

ing testimony but Prejudice. III. decision fruitless. It would be enough for to show petitioner any pretend if we reasonable Even conceivable counsel’s error had “some ef- lawyer have educated would fect on outcome.”33 must opinion devastating with Dr. Hammitt’s that, “a probability show reasonable but sentencing, to it at opened and the door errors, counsel’s unprofessional re- for have to surmount the Stanley would still might sult of the have proceedings been impossible showing that the sen- hurdle sentencing judge’s different.”34 The re- have been different had he might tence marks that demonstrate outcome require That a record done so. would have would been the same. have, we a perhaps from what different only had said “if I sentencing judge who sentencing judge The was “convinced a had some evidence had seen beyond a doubt that reasonable Defendant fight or a with his wife drinking problem daughter did state killed his that he had I then would not sen- depressed, or was she he had had seen what done for the of his tence him to death murder that his young and son was too to talk from keep talking.” little her Stan- girl what Together about he had seen.” that, ley’s seems to be had his argument year daughter’s helplessness his five old known experts jail psychi- that he told Stanley’s gun’s and the contact of muzzle he flew off the handle when his atrist that skull, top with the he concluded of her drinking, wife criticized his and felt “like extremely her murder was heinous and really like he watching he was wasn’t depraved. Throwing the dead bodies of there,” might experts per- his own have renting “racy” his wife and child and he judge murdered his suaded videotape shortly afterwards contributed defect, a mental because of even to this evaluation. Based on conven- judge would also have known though testimony ience store as well as clerk’s thought Stanley that Dr. Hammitt was facts, think judge other did not remorseless, mentally normal except for too he was doing. drunk to know what depression, psychotic. and not Stanley got his death sentence because of possibility, daughter. in what he did Disclosure of plausible That is not to his sentencing jail what he light judge psychiatrist what the said. told the changed He of defense would not have give decided to the benefit remorse, Stanley did, per- he did any he had what and what doubt on whether judge impose as a suaded the a death sen- mitigating and considered remorse tence. (persuasive factor murder of Stan- Knowles, (quoting

32. at 1420 34.Id. S.Ct. 2052. 129 S.Ct. Strick- land, 2052). 466 U.S. at Strickland, 104 S.Ct. 2052 added). (emphasis

Conclusion NEWDOW, Michael A. Plaintiff- evidentiary hearing An on whether Stan- Appellant, ley’s lawyer rendered ineffective assistance v. going very this case is be odd Stanley’s lawyer proceeding. Because LEFEVRE, Peter Law Revision Coun dead, cannot be asked to fall he on his sel; Henry America; United States of testify lawyer about what a sword and bad Paulson, Jr.,* Secretary M. giving Dr. he was for Hammitt’s notes Treasury; Fore, Henrietta Holsman expert to his Ha- interview witnesses. Director, Mint; United States Thomas may produce beas counsel be able to Ferguson, Director, A. Bureau of En expert testify any compe- witness to graving Printing; Congress so, lawyer tent would done and will Defendants-Appellees, America, of the United States be two experts testify able to have his they say accord with what in their affida- vits, that it would have made a difference Institute, Pacific Justice Defendant- to what But said. even in the unlike- Intervenor-Appellee. ly persuades event that all this the district No. 06-16344.

judge Stanley’s lawyer did so bad a job despite that it was deficient being stra- United States Appeals, Court of tegic, finding signifi- such a would be of no Ninth Circuit. cance, prejudice cannot be estab- Argued and Submitted Dec. 2007. already lished. We know the answer lawyer’s about whether the putatively defi- Filed March performance might cient have made a dif-

ference, because the record establishes judge

that the sentenced to death

for executing to keep her

from talking. We do not a legal

justification doing anything but affirm-

ing, because established pre- habeas law

cludes the federal courts from granting a against

writ this state sentence. * Paulson, Henry M. Treasury, Jr. is substituted for pursuant R.App. to Fed. P. Snow, predecessor, 43(c)(2). Secretary John W. as

Case Details

Case Name: Stanley v. Schriro

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 11, 2010

Citation: 598 F.3d 612

Docket Number: 06-99009

Court Abbreviation: 9th Cir.