*1 results demon- suggests further “folly in be- sentencing judge’s
strate Smith,” but testimony Cheryl
lieving the all, testimony none of her or part,
whether credible, to his Landrigan confessed
was in a “put the victim that he
psychologist lock, hit him until he partner
head and his [Landrigan] The client unconscious. place, original his robbing
went back
intention, took an elec- partner while the him to to choke began
tric cord Thus, Landrigan present
death.” Enmund), (unlike he has
the scene major his
admitted facts demonstrate in, and reckless indifference
participation
to, Dyer’s murder. Landrigan’s second conclude that
We application presents
and successive habeas relief ground on which
no substantial of the rec-
might granted. Our review exploration that further
ord convinces us Ac-
by the district court is unwarranted.
cordingly, deny application. we This request stay.7
moots the for a REQUEST DENIED.
APPLICATION
FOR STAY DISMISSED.
Aryon WILLIAMS, Petitioner-
Appellant, RYAN, Respondent- L.
Charles
Appellee.
No. 07-99013. Appeals, States Court of
United
Ninth Circuit. 5, 2009.
Argued and Submitted Nov.
Filed Oct. hearing a writ of certiorari.” 28 U.S.C. appealable and or for 7. Our denial "shall not be 2244(b)(3)(E). § subject petition re- shall not be the of a *2 (1963), the failure of the state court sentencing evidence at mitigating consider Ohio, *3 of Lockett v. 438 U.S. violation (1978) 2954, Oklahoma, Eddings (1982). 71 L.Ed.2d the testi- The evidence at trial included then mony Deloney, of Michelle Williams’ to had confessed girlfriend, Williams he murdered DeLao. The murder her relatively in a remote area of occurred there no County, Pinal Arizona and were eyewitnesses physical and little evidence. charge, robbery/attempted murder On Oracle, AZ, Hall, for petitioner- Julie victim, Soto, Norma testified at trial Aryon appellant, Williams. as her attacker. and identified Williams Zick, Phoenix, AZ, respon- Jeffrey A. for after the convictions were years Two Ryan. L. dent-appellee, Charles Attorney an Assistant appeal, affirmed on Arizona over General for turned attorney packet jailhouse a of Williams’ trial that suggested letters written before not the actual murderer. that Williams was suggested These letters that Williams had man, Fields, Patrick to do the paid another SCHROEDER, M. Before: MARY job. jailhouse letters led Williams to BERZON and SANDRA S. MARSHA S. they had seen two witnesses who said IKUTA, Judges. Circuit disposing bloody clothing park in a Fields morning a around the time of the murder. SCHROEDER; Opinion by Judge history turned out to have a Fields Partial and Partial Dissent Concurrеnce assaulting women. by Judge IKUTA.
By the time
became aware of
Williams
evidence,
pro-
OPINION
this
these federal habeas
ceedings had been instituted. The district
SCHROEDER,
Judge:
Circuit
stayed
proceedings
court
so
in Arizona
Aryon Williams was convicted
could,
court,
in state
exhaust a
Williams
court in 1992 and sentenced to death
jailhouse let-
arising
claim
from the
the first
murder of his former
degree
court, however, refused to
ters. The state
DeLao,
Rita
and for the later
girlfriend
request
for a first extension of
grant
robbery
attempted
murder of Norma
petition.
prepare
postconviction
time to
appellate
upheld
The Arizona
courts
Soto.
was, therefore,
to exhaust
unable
Williams
and sentence. See State v.
his convictions
he returned to fed-
state remedies. When
Williams,
Ariz.
The district court also a COA argument and had an out- Williams trial for the court violated building. side the pulled gun DeLao a on process rights by failing Williams’ due provide expert Williams, funds for a mental health but Williams was able to disarm sentencing to drug dependence establish briefly her. Williams apart- returned to his mitigating as a factor. Like the district ment, it, then left and did not return until court, agree we that the state court’s re- following morning. jection contrary of this claim was not to or Sunday morning, On a hunter discover- application Supreme an unreasonable of body ed DeLao’s on a dirt road about precedent. Court twenty minutes from apartment. Williams’ Of numerous claims had not DeLao had been shot three times and her certified, been that have been but briefed body had suffered a gruesome number of rules, pursuant to our we find one to be injuries. beaten, She had been and tire meritorious. offered his Williams addic tracks across her stomach indicated that mitigating tion to crack cocaine as a factor sentencing. by The Arizona she had been run over an Supreme automobile. Court refused to this as a mitigat consider Bullets recovered at the scene were consis- ing applicable factor under Arizona law gun tent with the Williams had taken from because Williams did not show he was shortly DeLao her death. before drugs under the influence of at the time of Deloney testified Williams confess- the murder. challenge Because Williams’ Monday ed to her on that he was with to this determination raises a substantial several friends who killed DeLao. Accord- issue, 2253(c)(2), § constitutional 28 U.S.C. ing to Deloney, only Williams said he had certify we the issue and decide it. As we DeLao, have done in other kicked and that his emanating cases from friends had period, Arizona courts in the same we find killed her. Williams denied ever confess- that the state court erred its refusal to ing in involvement DeLao’s death. Also mitigating consider all evidence. See Ed Monday, Deloney Williams drove 114-15, 869; dings, 455 102 S.Ct. place where car DeLao’s had been aban- Lockett, 604-05, 2954; 438 U.S. at doned, less than a apartment mile from his Schriro, Lambright v. in approached Casa Grande. As Williams (9th Cir.2007). 1114-15 car, police processing a officer car them, stopped told the Williams officer AND FACTUAL PROCEDURAL thought it he was DeLao’s car. BACKGROUND Deloney testified two weeks after underlying The facts of this case are set murder, out Supreme detail the Arizona told her that he Williams had her, case, reject these claims as DeLao, that he shot of this we admitting killed well.”). iron, and ran over her hit her with told De- his car. Williams repeatedly with also offered his addiction anyone, told he if ever loney that she circumstance at sen- mitigating crack as a kill her.
would trial court refused to consid- tencing. The murder, Norma after the Five weeks mitigation. drug use er Williams’ clerk, Soto, store convenience a Circle-K agreеd, holding Arizona Court during robbery times was shot several “[wjithout impair- showing of some and identified survived the store. Soto offense, drug at the time use ment attacker, testifying that he as her mitigating circumstance of cannot be stop spreading her to telling her after shot kind.” Id. at 453. killed DeLao. Police story that he had post- filing After two unsuccessful mur- for both the arrested Williams soon petitions conviction which he raised the robbery/attempted and the der of DeLao sentencing claims of erroneous denial of a murder Soto. expert mental health and the refusal to *5 trial, in a consolidated jury, An Arizona mitigating his addiction as a fac- consider in 1992 of the murder convicted Williams tor, pro- instituted federal habeas Williams DeLao, robbery, at- armed and the ceedings. peti- In while his federal trial, Deloney At tempted murder Soto. Attorney an pending, tion was Assistant witness on the principal was the State’s for Arizona turned over to defense General testified about charge. She murder letters, they counsel a series of and stated pre- also confessions. The State Williams’ “by secretary during an were discovered murder, prior sented evidence cleaning annual house at the Coun- [Pinal] car, DeLao’s shot at had Williams burned ty Attorney’s Office.” The State said the her tires. Soto apartment, her and slashed evidentiary had “no value.” letters as the testified and identified Williams purported The letters to have been writ- man who robbed the store and shot her. jail prior to ten from Williams’ defense and testified his own Williams Sweat, Beverly a woman namеd to in either criminal denied involvement Solis, investigator Tom the lead Detective have a criminal episode. Williams did not letters, in the DeLao murder. In the record, although the introduced evi- State in- expressed provide the desire to Sweat that crack cocaine dence he had abused murder, in formation she had about a re- Deloney. physically become abusive to and early jail. turn for an release from Solis stand, using drugs On the Williams denied letters, having seen these has denied ever day on the of the murder. given or a statement but has not testified sentencing, sought At Williams to have under oath to this effect. provide expert the state a mental health The contained information Sweat explore drug usage whether his had affect- letters inmate, obtained from a fellow allegedly ed his mental state when he killed DeLao. motion, McKaney, paid that Williams had The trial court denied this and the Yolanda that the deci- Patrick Fields to kill Rita DeLao and Supreme upheld Arizona Court McKaney had seen a bloodied Fields on sion without discussion. See 904 P.2d (“Defendant morning ... the time of the mur- also asserts that the one around letter stated that Sweat was expert trial court’s denial of funds for an der. One McKaney Yolanda “tell right process equal going [her] to due to have violated his story Rita and Patrick Fields.” under the the facts about protection law. Under In (appar- placed that “Aaron” the district court also noted The letter Aryon proceedings abeyance to allow petitioner federal ently a reference Williams) claim “going get” people: two Williams to exhaust a based According to upon subsequent Barnett. letters and the Fields and Milton Sweat letter, McKaney told Sweat The Arizona courts never investigation. this Grande, murder, claim, in Casa day of the DeLao considered the merits of this howev- bloody” er, “all Superior Fields who was because the Court denied she saw “Aaron” had him a paid an extension of time to file his who stated According kill petition, finding dollars to DeLao. had thousand Sweat, McKaney Fields told that he had Arizona good failed to show cause under 32.4(c). eyes out and run over her cut DeLao’s Rule of Criminal Procedure also stated that she moped. summarily with a Sweat Arizona Court then it,” part of some guilty knew “Aaron is denied review. letters, subsequent promised court, Back in federal Williams moved could obtain additional informa-
that she “Discovery, Expansion for of the Record tion, early if release. she obtained Evidentiary Hearing” on [an] the Bra- dy claim. opposed in- The State on the conducted an Counsel Williams ground procedurally this vestigation on the basis of the Sweat let- barred. in 1999 obtained declarations ters and in the people from three mentioned letters: The district court refused to treat Barnett, and McKaney, Fields. McKa- barred, procedurally claim as hold *6 ney’s declaration stated around the ing effect that the state courts had murder, time of the DeLao she saw Fields prevented following exhaustion without park in a the small town of Casа any well established rule that would have Grande, Arizona, less than a mile from untimely. the petition rendered The dis aban- police
where
discovered DeLao’s
trict court noted that the State had failed
morning
doned car the
after the murder.
any
denying
to cite
case
a
for
request
first
bloody
a
saw a bloodied Fields throw
She
an extension of time in a
case. To
capital
it.
dumpster
into a
and burn
Barnett
shirt
contrary,
a
Williams cited
number of
time,
same
and a
stated that about this
few
examples where the state courts had
Fields,
McKaney
from where
saw
blocks
Thus,
granted
requests.
such
the district
something
a shirtless Fields throw
he saw
32.4(c)
found that Rule
was not
court
dumpster.
into a
Barnett said
while
“firmly
regularly
established and
fol
Fields,
cigarette
a
he noticed
sharing
Georgia,
v.
lowed.” See Ford
498 U.S.
clothing.
on Fields’
Barnett asked
blood
411, 423-24,
850, 112
blood, and Fields fled.
Fields about this
(1991).
mur-
Barnett said he learned of DeLao’s
day.
granted
The district court also
der the next
declaration stat-
Fields’
county jail
discovery
at the time of the
additional
related to the investi-
ed he was
murder,
gation
but the
later con-
of the Sweat letters. The court
DeLao
State
custody
hearing,
not in
declined to order an in-court
find-
ceded that Fields was
it
documenta-
ing
appropriate
that time.
In the district court Williams
consider
evidence,
a
tion and review written
rather
produced evidence that Fields had histo-
court
ry
against
assaults
women.
than hear witnesses. The
said
of sexual
that he knows
it did so because of what it determined to
Williams has admitted
Barnett,
Sweat,
Brady
оf the
claim.
McKaney,
and Fields.
be the “narrow focus”
part
thus no failure on the
discovery and brief-
there was
completion
After
agree with the district court
Williams. We
Brady
court denied the
ing, the district
32.4(c)
arbitrarily applied
that Rule
merits, holding that Williams
claim on the
the district court concluded
this case. As
the letters did
prejudiced because
was not
for an extension of
“every
request
first
material information.
not contain
granted
time in a
case” had been
of Williams’ new
court noted that none
in Arizona courts.
previously
directly impeached or under-
information
at trial —evi-
presented
cut the evidence
arbitrary
a
of the state court’s
As
result
to convict.
jury
found sufficient
rules,
dence
there
no state
application of its
is
Rather,
found the letters
the district court
which this court can de-
court decision to
that Williams
provided
requires
further evidence
AEDPA
fer. The deference
therefore,
paid
determinations,
he had
culpable by suggesting
court
does
point-
of this claim is de
apply
Fields to kill DeLao. The court also
and our review
Morgan,
in the various decla- novo. See Pirtle
ed to inconsistencies
(9th Cir.2002).
1160, 1167
rations,
fact the informa-
noting that the
jailhouse
in a
undermined
originated
tion
A
state commits a
viola
credibility.
its
1)
question
the evidence in
tion where
2)
a
on the
accused,
The district
issued COA
the state “wil
favorable to
Brady claim and the claim that Williams
fully
inadvertently”
or
the in
suppressed
3)
expert
formation,
to a mental health
suppression preju
was entitled
sentencing.
additionally certify the
We
diced the defendant.
Strickler v.
Greene,
263, 281-82,
claim that addiction should have been con-
mitigating
sentencing.
Prejudice
factor at
sidered
“materi
suppresses
exists where the state
information;
al”
evidence is material if had
ANALYSIS
been disclosed “there is
reasonable
I. The
Claim
probability
proceed
...
the result of the
First, we
address as
threshold
ing
Kyles
would have been different.”
*7
matter the
renewed contention that
State’s
Whitley, 514
(1995) (citation omitted).
procedurally
claim is
Williams’
barred,
though
prevent
even
was
Williams
materials here consist
raising
ed from
it because the state trial
of the
that
packet
Sweat letters
turned
court denied him a first extension of time.
up
Attorney’s
years
in the District
office
court,
court,
In this
as in the district
trial,
after
and led counsel to obtain
a
in
single
State has not cited to
other
Barnett,
McKaney,
declarations of
and
denying
stance of an Arizona court
a first
Arave,
Fields.
Paradis v.
240 F.3d
petition
extension of time to file a habeas
(9th Cir.2001)
that
(noting
1178-79
State, therefore,
capital
in a
case. The
has Brady material consists of admissible evi
the denial
to a
pursuant
shown
dence or inadmissible evidence that could
against
well
rule
first
established
exten
impeach
government
have been used
sions in
cases. Procedural default witness).
suggest
The Sweat letters thus
application
must be based on the
of a well
who,
ed there were witnesses
around the
Ford,
established rule. See
498 U.S. at
murder,
time of DeLao’s
saw a bloodied
423-24,
Because this claim denied in state a half a mile from dumpsters into about inadequate procedural ground, police court on an where found DeLao’s abandoned up car. defense counsel followed on gesting perpetrator When an alternate is “classic these leads after the letters were dis- Brady Boyette material.” v. Lefevre, 246 closed, (2d from Cir.2001); she obtained declarations the F.3d see United witnesses identified in the letters substan- Jernigan, States v. 1056-57 (9th Cir.2007) (en tially reiterating banc) this information. The (“Withholding suggested Sweat letters further that there knowledge of a suspect second conflicts might testify be a witness who could that with the Supreme Court’s directive that did not commit the murder him- the criminal as distinct from the self, paid but Fields to do it. prosecutor’s private deliberations, pre served as the chosen forum for ascertain that
Williams contends this information ing accusations.”) truth about criminal justify is sufficient to habeas relief. The (internal marks, citation, quotation contends, however, State with some validi- omitted). brackets only Not are the Sweat ty, that the new evidence does not under- letters inconsistent with the theory State’s Deloney’s testimony mine that Williams at trial —that only Williams was the indi confessed his involvement in the murder to responsible vidual for DeLao’s murder— it, State, Nor according her. does they but point also to an alternative sus any impact have on the evidence that pect may who himself responsi have been person Williams was the last known to be ble for the brutal crime. DeLao, they and that had an argu- ment when DeLao threatened Williams The two witnesses mentioned in the let- with the firearm that was used in her ters, Barnett, McKaney provided dec- murder. The Sweat letters are also con- pointed only larations to Fields. sistent with Williams’ first confession to There is also reason to believe the declara- Deloney only DeLao, that he had kicked tions from Barnett McKaney are more someone else killed her. See 904 than reliable the Sweat letters. Sweat P.2d at 441. points The State also out that prepared the in hopes letters of obtaining murder, prior to the Williams had burned an early jail, release from and thus had house; DeLao’s car and shot her every police motivation to tell the what she Sweat letters do not conflict with that evi- thought they wanted to hear. Barnett and dence either. contrast, McKaney, in apparent had no motivation to sign
Insofar as the letters
false declaration
suggest
impli-
cating
was involved in the murder in a
Fields. Williams has also provided
different
capacity
killer,
plausible explanation
than
as the actual
the statement
State
in the
suggest only
contends the letters
Sweat letters that he was “going
alter-
*8
theory
get”
nate
Fields was
equal culpability,
unrelated to the murder.
and we
have held such
Williams believed Fields
responsible
evidence undermines a
was
Brady claim
for the violent assault
long-
where the new evidence
of one of his
fails
to show the
time friends.
guilty.”
defendant was “less
Ylst,
447
See Morris v.
F.3d
740-41
Fields is at
a plausible
least
alternative
(9th Cir.2006) (finding
no
violation suspect:
history
he had a
of violence
say
where new information “did nоt
Peti-
against
jail
women and lied about
being
guilty,
tioner
not
or that he was
at the time of the
McKaney
murder.
and
guilty”
less
suggest
did not
another Barnett both saw Fields disposing of
victim).
party “struck” the
bloody clothing around the time of the
Here,
part company
we must
away
the murder and a short walk
from where
position,
sug- police
State’s
because new evidence
discovered DeLao’s
car.
abandoned
Barnett,
Williams, Fields,
McKaney
reweigh
we do not
evidence
assess the
[or]
credibility
lived in the same
decide whether
[to]
one another and
witnesses
all knew
suggest
suppressed
affidavits
that
evidence
the
town. Juror
the
establishes
small
juror reluctantly
beyond
voted to con
a
guilt
party
one
of a third
reasonable
least
evidentiary
on the
record.
petitioner.”
vict on the basis
or exonerates
Scott v.
doubt
Mullin,
(10th
con
physical
little
There was also
303 F.3d
Cir.
(internal
2002)
the crime. This lends
necting
marks, citation,
Williams to
quotation
omitted).
that someone
materiality to new evidence
critical ques
and brackets
The
possibly solely re
else was involved—and
suppressed Brady
tion is whether the
ma
Jernigan,
See
492 F.3d
sponsible.
provided
terial could have
material evi
strength
prosecu
of the
(considering the
may
changed
have
the result.
dence
weighing
materiality
tor’s case
The district court concluded on the basis of
Roe,
evidence);
Gantt v.
suppressed
that Barnett
written statements alone
(9th Cir.2004)
(holding that
F.3d
McKaney
inherently
were
unbelievable
newly
information is material
discovered
witnesses. The court did so without hоld
a conviction based
when
undermines
evidentiary
ing
hearing
an in-court
or
evidence).
physical
little
upon
they
der to determine whether
would have
provide
been able to
material evidence that
provided
gov
letters thus
Sweat
may
changed
have
the result of Williams’
concerning
with information
ernment
opin
trial. This
error.
follow our
We
suspect
alternative
if dis
possible
Ornoski,
in Earp
ion
defense,
would have allowed
closed
(9th Cir.2005).
1169-70
put
whether to
McKa
decide
ney
testify.
and Barnett on the stand to
case,
In
Earp,
penalty
also
death
we
recognized
principle
We have
credibility
stressed that
should be assessed
not,
government may
consistent with Bra
of an in-court hearing
basis
where
dy,
per
suppress information
another
judge
can see and hear the witnesses.
son committed the crime for which the
There,
here,
See id.
the district court
Jernigan,
defendant is on trial.
had resolved habeas
on the basis of
at 1056-57.
F.3d
written declarations and we held that to be
error. See id.
stated that “[b]ecause
We
provided
The Sweat letters also
veracity of
signed
the witnesses who
potential
names of two
witnesses that
Earp
the affidavits on which
based his
could have testified to events that under
issue,
claim was at
the claim
could
prosecution’s theory
cut the
that Williams
adjudicated
evidentiary hearing
without an
was the lone assailant. Rather than focus
disputed
on this
issue of material fact.”
letters,
ing on the information
at 1170.
Id.
potential materiality
of the witnesses’
testimony that might
implicate
similarly
another
are
unable to determine on
We
record,
perpetrator,
prematurely
the district court
this limited
whether
there is a
presumptively
probability”
deemed these two witnesses
“reasonable
of a different re-
not credible on the basis of inconsistencies
sult at
trial had this information been
*9
Yet,
Kyles,
in their
the
decla
at
declarations.
two
available. See
years
Although
many
rations were
in
nine
there are
executed
fact,
questionable aspects
after the murder. Given this
some
in the statements and
sources,
in
necessarily
capital
inconsistencies do not
make
their
this is
case which
im
that
wholly
responsibility
their stories
incredible. More
courts’
to ensure
due
claim,
the
is criti-
portant,
analyzing Brady
process was afforded
defendant
“[w]hen
opposition
evidentiary
active
to an in-court
the execution of an
prevent
cal in order to
disagree
that
hearing,
in the face of evidence
the dissent’s
individual
him innocent of the crime of
might
show
conclusion that
invited error
Williams
Burger Kemp,
See
“express[ly] disavowing]”
conviction.
an in-court
hearing.
(“Our
(1987)
duty to search for constitu-
disagree
also
with the dissent’s con-
We
care is never
painstaking
tional error with
clusion that
the Sweat letters could not
case.”).
it
in a
exacting
more
than
is
guilt phase
have been material to the
in
The district court abused its discretion
trial because the letters were not
Williams’
determining these issues on the basis of
1275-76.)
exculpatory.
(Dissenting Op.
documentary evidence alone. This
recognizes,
As the dissent
the standard for
“rare instances”
case is not one of the
materiality is whether “there is a reason-
“credibility may be determined
where
probability
able
had the evidence
evidentiary hearing.”
an
without
defense,
been disclosed
the result of
Earp, 431 F.3d
1169-70.
proceeding
would have been different.”
that
is not
The dissent states
Williams
Kyles,
ly, prosecutor a reasonable letters, Expert Mitigat- which identi- known that the Sweat Health to Present an alternative new witnesses and fied two ing Evidence to evidence material to suspect, could lead next contends the state of De- culpability for the murder Williams’ unreasonably applied Ake v. Okla so, confirm is Lao. The declarations homa, 68, 1087, 105 470 U.S. S.Ct. 84 were avail- by indicating that the witnesses (1985), him when denied information possessed material able psychiatric sentencing assistance at to may exculpated have Williams. The which present mitigating related to his explained prose- has that a Supreme Court usage. crack cocaine Because Williams the materi- cutor who has doubt about required failed to make our threshold ality piece of a of evidence favorable issue, showing the evidence. that his mental state was in defendant should disclose (“[A] Kyles, reject S.Ct. we this claim. too
prosecutor
tacking
anxious about
close
Court in Ake held that due
Supreme
piece
the wind will disclose a favorable
to
requires
provide
the state to
process
evidence.”);
Agurs,
United States
indigent
psychiatric
defendant funds for
U.S.
he makes a preliminary
assistance when
(1976) (“[T]he prudent prosecutor will re-
showing
signifi-
that his mental state was a
in
questions
solve doubtful
favor of disclo-
cant factor at the time of the offense. 470
sure.”).
appropriate
It is therefore
to con-
der,
there was so little
because
2254(d)(1),
use,
Deloney’s
§
Even with
indicate,
drug
to
that due
record
testimony,
there was little evidence
impaired.
The
mental state
Williams’
drug
affirm
had in fact affected the
granted a COA. We
on Williams’
use
district court
ground.
example,
crime. For
there was no evi
the latter
of bizarre behavior exhibited
dence
pro
Ake’s due
triggering
Before
at
the time of the offense. See
assistance,
psychiatric
a de
right
cess
Williams, 441 F.3d at
Ronald
1048-50
trial
must
“demonstrate!]
fendant
(holding
rely
defendant who did not
time of the
sanity
that his
at the
judge
defense,
insanity
an
on
had been found
Ake,
factor.”
significant
is to be a
offense
competent, and failed to exhibit “bizarre”
at
health law, any showing showing make that under Arizona of “[w]ithout did not defendant the murder at the of of- impairment mental state at the time of some time his fense, drug drug mitigating at virtue of use. use cannot be a issue any circumstance of kind.” 904 P.2d at Drug Mitigating as a Circum- III. Use 453. The court thus refused to cоnsider stance mitigating this circumstance because showing “offered no evidence Williams sentencing
Williams also asked
he was intoxicated when he murdered [De-
drug
mitigating
as a
court to treat his
use
Id.
Lao].”
factor. The trial court refused and he
im
Supreme
contends the Arizona
Court
reject-
The district court considered and
required a direct causal nexus
properly
merits, holding
ed
claim on
this
drug
use and the murder be
between
required
state
consider
drug
any
use
fore it would afford the
drug
mitigating
Williams’
use as a
circum-
mitigating weight
sentencing.
at
This
stance. The district court declined to is-
merit,
Supreme
because the
has
COA,
issue,
least,
very
sue a
but the
at the
repeatedly
has
held no such nexus is
Court
jurists
upon
is one
which reasonable
could
See,
required
capital
e.g.,
cases.
Ten
Cockrell,
disagree. See Miller-El v.
537
Dretke,
274, 284-87,
nard v.
542
124
U.S.
322, 327,
U.S.
123 S.Ct.
154 L.Ed.2d
(2004).
during
guilt phase
the"
of the
he
may
only
reverse
if the Ari
We
presented drug
mitigating
use as
factor
Supreme
zona
Court’s decision was con
sentencing through
testimony
at
trary
clearly
federal
law.
established
friend,
Deloney
Raymundo
and a
Mendez.
2254(d)(1).
§
See 28 U.S.C.
The federal
Deloney testified that
was a non-
Williams
sentencing
law
that a
is clear
court must
person up
violent
until the time he started
consider all mitigating evidence. The deci
to abuse crack. She stated that once he
Supreme
sion of the Arizona
Court
drugs
progres-
started to abuse
he became
drug
could not
use
be considered as a
sively more violent. Mendez testifiеd that
kind,”
mitigating
any
contrary
factor “of
he had known
most of his
Williams
life.
Supreme
deci
Court’s consistent
initially
He said
a reputation
had
than
capital
beginning
sions
cases
more
a quiet
peaceful person.
He also
a decade before Williams’ trial. See Smith
testified that about the time Williams be-
Texas,
543 U.S.
125 S.Ct.
user,
drug
came known as a
that he be-
(2004); Tennard,
542 U.S.
carrying
came violent and started
guns
2562;
284-87,
Eddings,
124 S.Ct.
testify
with him. Williams did not
at his
114-15,
Lockett,
869;
U.S. at
102 S.Ct.
sentencing hearing.
604-06,
Cir.2008) retroactively). (applying Smith the district judgment vacate the Arizona We At the time of Williams’ denying petition and remand for a nexus test similar to recognized courts peti- offering provide on the information about evidentiary hearing an in-court exchange early for re- challenging the con- DeLao murder claim tioner’s jail. from The letters had been re- with instructions lease also remand viction. We earlier, years by government ceived six petitioner’s grant petition trial begun, before Williams’s had sentencing process of denial of due Beverly a woman named circum- were written mitigating all failure to consider They Sweat. were addressed to Detective affirm the denial of otherwise stances. We Solis, investigator the lead in DeLao’s Tom relief. murder. VACATED in part, AFFIRMED in letters, *14 In the Sweat identified two indi- REMANDED.
part, and
with information about DeLao’s
viduals
murder,
jail-
McKaney,
Yolanda
a fellow
IKUTA,
Judge, dissenting
Circuit
Sweat,
mate of
and Milton Barnett. The
part:
part
concurring
perpe-
an additional
letters also identified
majori-
respectfully
I
dissent from the
murder,
trator in the commission of the
Aryon
ty’s disposition
petitioner
of
Fields,
theory
Patrick
and an alternate
Brady Mary-
claim based on
Williams’s
crime, namely
paid
the
that Williams had
land,
Fields to commit the murder on his behalf.
I concur in the
While
here,
Relevant
the letters stated:
majority
result
reached
Try questioning Milton Barnett Jr. [Yo-
claims, I
sepa-
other two
write
Williams’s
McKaney]
landa
mention
name too
my
rately
express
disagreement
with
WED,
may he knows something
so
last
majority’s reasoning.
yard
to the
we went
me and Yolan-
[McKaney]
talking
da
to [Williams]
I
people
an he said there was two
he was
majority
I
agree with the
Williams’s
-»
going
get
Eloy
one from
Patrick
Brady
procedurally
claim is not
barred
Fields one from Casa Grande Milton
may
I
and that we
consider its merits.
kept asking ques-
Barnette [Williams]
however,
majority’s
disagree,
with the
de-
tion about Milton so check it out.
cision to remand to the district court for
Instead,
evidentiary hearing.
an in-court
I
I went ahead an talk to Yolanda [McKa-
prosecution’s suppres-
would
hold
ney] an
told me
what happen
she
by Beverly
sion of the letters written
killed,
night
good
Rita
she said
[DeLao]
Brady
Sweat rose to the level of a
violation
walking
she was
down trekelle Road in
respect
penalty phase
an ran
Casa Grande
into Patrick [Fields]
case,
Williams’s
but not with re-
bloody an
him why
he was all
she ask
I
spect
guilt phase. Accordingly,
blоody
was he all
an he told her he had
uphold
would
the district court’s denial of
just killed Rita
an
[DeLao]
[Williams]
conviction,
the habeas writ as to Williams’s
him
paid
doing
had
1000 for
it he had a
grant
but
the writ as to his sentence.
him,
knife on
an said he used it to cut
eyes
mopad
her
out also used a
to run
A
up
over her an her an Patrick burned
years
Five
after
was convicted
the cloths he had on an
the went
spent
money
and sentenced to death for the murder of
which took
two
about
DeLao,
days.
you
Rita
I
prosecution
turned over
or three
think
should talk
jailhouse
I
the defense
series of
letters
to her about this
know
[Williams]
given
been
sufficient
government
had
you
I wish
part of
but
of some
guilty
through
the claim
dis-
investigate
time to
you
before
me out of here
get
would
ultimately
de-
covery. The district
it to surface....
bring
request to conduct
government’s
clined the
mentally unstable
was a
Patrick Fields
hearing
person.
who,
mur-
time of DeLao’s
at the
person
Brady issue on the mer-
Reviewing the
history with
der,
criminal
had an extensive
its,
analysis
court focused its
the district
as-
including burglary, aggravated
charges
McKaney and Bar-
on the declarations
was also
sault,
assault. Fields
and sexual
nett,
had collect-
Williams’s counsel
which
against
a series of attacks
responsible for
into
investigation
in the course of an
ed
mur-
months after DeLao’s
in the
women
government’s
issue after the
der,
where DeLao was
in the same area
letters, years
of the
after
disclosure
Sweat
killed.
sentencing.
conviction and
Williams’s
withholding
government’s
Based on the
McKaney’s
reported
dеclaration
that she
letters,
attempted to
of these
burning
bloody
had witnessed Fields
postconvic-
in a state
raise
alley dumpster
in an
around the time
shirt
post-conviction
The state
petition.
tion
*15
Similarly, Barnett’s
of DeLao’s death.
not reach the merits of this
court did
reported that he had seen
declaration
claim, however,
because
held
Fields,
blood, dispose
in
of some-
covered
barred.
procedurally
claim was
thing
alley dumpster
day
in an
the
before
of time to file
had asked for an extension
he heard DeLao had been killed.
Arizona Rule of Crimi-
petition
the
under
Ultimately, the district court concluded
32.4(c)(1),
permits
which
nal Procedure
regarding
the information
Patrick
sixty-
grant
a defendant
state court
Brady
Fields was not material under
be-
in
to file a successive
day
which
extension
impeached
cause it neither
Michelle Delo-
of
petition
showing
post-conviction
“[o]n
testimony
had
ney’s
that Williams
confess-
court
good cause.” The state
determined
“exculpate[d]
crime nor
ed
no
cause for the ex-
good
that there was
[Williams]; rather it affirm[ed Williams’s]
such,
and, as
denied Williams’s
tension
in the
The district
involvement
murder.”
request.
McKaney
noted that
and Barnett
court
Presenting
issue to the dis-
subject
testing”
be
to “adversarial
would
court,
for an eviden-
trict
moved
their
the event of a new trial because
scope of the
tiary hearing
explore
inconsistent,
with
declarations were
both
wrongdoing. The
prosecutor’s potential
In
other and with the Sweat letters.
each
granted
request,
but de-
district court
addition,
court observed that
the district
narrow
light of the
“[i]n
termined
erroneously described
the Sweat
letters
claim and “because
focus” of the
killed,
DeLao was
the manner
which
...
indicate
d[id]
motion
[Williams’s]
credibility of Sweat and
and that
requires
pres-
oral
why particular evidence
McKaney
subject
question
was
because
entation,”
hearing
jailhouse
it would conduct
the nature of their
discussions.
evidence” rath-
had
“through receipt
holding
of written
on its
that Williams
Based
materiality prong,
testimony.
gov-
satisfy Brady’s
live
failed to
through
er than
habeas relief.
the district court denied
ruling, arguing
this
ernment contested
necessary to
hearing was
that an in-court
B
of Williams’swit-
permit cross-examination
majority,
in-
the state
responded
explained
that an
As
nesses. Williams
an
request for
court’s denial of Williams’s
not warranted because
hearing
was
reasonably
could
put
under Arizona Rule of Criminal
taken to
extension
32.4(c)(1),
Procedure
which had the effect
light
the whole case in such a different
barring
consideration
Williams’s
to undermine confidence in the verdict.”
grounds, was not a
procedural
claim on
Kyles Whitley,
514 U.S.
“firmly
regularly
followed
established
Here,
was not
on the
ceeding.
2254(d)(1),
§
there is “no state
U.S.C.
court decision on this issue to which to
Williams articulates
number of reasons
deference,” and I agree
accord
with the why the Sweat letters are material. The
majority that our review of this claim is de
identify by
letters
name
additional sus-
Morgan,
novo. See Pirtle v.
pect DeLao’s murder and two individu-
(9th Cir.2002) (“[Wjhen
1160, 1167
it is
als
information about the crime. The
clear that a state court has not reached the
letters, Fields,
perpetrator identified
issue,
properly
merits of a
raised
we must
mentally
ill and had an extensive crim-
novo.”).
review it de
history.
letters,
inal
According to the
“[Wjhen the State withholds from a
McKaney
Fields confessed to
that he com-
*16
criminal defendant evidence that is materi
murder,
mitted the
and this confession oc-
guilt
punishment,
al to his
or
it violates his
night
occurred,
curred on the
the murder
right
process
to due
of law in violation of
while Fields was still covered in blood.
the Fourteenth Amendment.” Cone v.
—Bell,
U.S. -,
129 S.Ct.
that,
argues
Williams
because he was
(2009).
majority
As the
convicted and sentenced on the basis of
“[tjhere
states,
are
components
three
of a
evidence,
circumstantial
a
there is
reason-
true
violation: The evidence at is
probability
able
pro-
that the result of the
accused,
sue must be favorable to the
ei
ceeding would have been different had the
ther
it
exculpatory,
because
is
or because
First,
letters been disclosed.
Williams
impeaching;
that
must
evidence
have
that
contends
disclosurе of the letters
State,
suppressed by
been
the
either will
would have enabled him point
to anoth-
fully
inadvertently;
or
and prejudice must
person
crime,
er
who committed the
there-
Greene,
have ensued.” Strickler v.
by supporting his claim of innocence.
263, 281-82,
U.S.
S.Ct.
that,
Williams asserts
had he known about
otherwise,
Stated
a
McKaney,
Barnett and
he would have been
Brady violation results
prosecu
when the
to call
they
able
them to the stand and
“material,”
suppresses
tion
evidence that is
would have testified regarding their knowl-
is,
that when
proba
“there is
reasonable
edge of
participation
Fields’s
in the crime.
bility
had the evidence been disclosed
Williams claims he also could have intro-
defense,
to the
the
proceeding
result of the
likely
duced evidence that Fields
awas
would have been different.”
Id.
suspect,
instability
based on his mental
standard,
Second,
holding
that disclo
in Jemigan
Williams theorizes
Our
was based on
failure
that
police’s
principle
“[withholding
the letters and the
the
knowl-
sure of
Sweat, McKaney,
suspect
up
edge
of a second
conflicts with the
to follow
would have furthered his trial the
Court’s directive that ‘the crimi-
Barnett
in
police
negligent
prosecutor’s
were
their
nal
as distinct from the
ory
deliberations,
private
preserved
of the crime. Like the defen
as the
investigation
argues
ascertaining
in
that
the
forum for
the truth
Kyles,
dant
chosen
”
per
in the
would have
criminal
Id. at 1056-
information
letters
about
accusations.’
omitted)
(brackets
po
(quoting Kyles,
]
mitted “the defense
[to] examine[
1555).
good
knowledge
Jemigan
effect on their
of
lice to
have attacked
that credible
statements and so
indicates
information about
[Fields’s]
reliability
failing
to a
investigation
suspect
generally
of
second
crime is
possible guilt.”
to consider
material and therefore
[Fields’s]
even
should be disclosed
446, 115
defendant.
Last,
suppressed
Williams contends that he could
Like the
Jemi-
provide
to gan,
have used the information
the letters
the Sweat letters
information
testimony
credibly
that
Deloney’s
Michelle
indicates the existence of a
impeach
committing
suspect.
give
confessed to
second
letters
a de-
crime,
description
specific,
de-
because
version
events
tailed
named indi-
viduals,
by Deloney
from that de-
at least one of
known to
scribed
differed
whom was
informant,
letters.
all of
picted
part
whom were
community in
the same
a small town. At
United,
en
Our recent
banc decision
one of the
in the
least
individuals identified
Jemigan
Williams’s ar-
supports
States v.
letters,
McKaney, allegedly
Yolanda
inter-
regarding
gument
information
Patrick
acted with
Fields near the time of
perpetrator
Patrick Fields as
additional
reported
murder and
cov-
he was
was material
to Williams’s defense. 492
in blood and
the crime.
ered
confessed to
(9th Cir.2007) (en banc).
F.3d 1050
Jemi-
Moreover,
prosecutor
would have
dealt with
where the
gan also
a situation
*17
at the time of receiving
known
these lеt-
regarding
withheld
prosecutor
information
was a plausible suspect,
ters that Fields
of the crime
possible perpetrator
another
then-recent
based on
incidents
which
for which the defendant was on trial. See
Fields had attacked other
in the
women
There,
at 1051.
defendant was
id.
the
Jemigan,
area. Under
these circum-
robbery
primari-
with bank
charged
based
weigh in favor
stances
of the letters’ mate-
physical
eyewitnesses’
her
ly on
likeness
riality.
of the
descriptions
prose-
robber.
Id. The
claim,
prevail
an alternative
cutor withheld evidence of
For Williams
on this
however,
fitting
descrip-
the
he must also
let
suspect
physical
prove
same
that the
Strickler,
him,
robbing
had been arrested for
are “favorable” to
tion who
ters
1936,
al-
nearby banks after the defendant was
at
because
either
custody.
they
exculpatory
they
In re-
or
have
ready
Id. at 1054-55.
are
because
281-82, 119
viewing
suppression
whether
of the
value.
at
impeachment
See id.
suspect
point,
consti-
1936. On this
case
existence of
alternative
S.Ct.
Williams’s
violation,
diverge.
Brady
Jemigan
sup
we determined
tuted
Unlike
pressed
Jemigan,
the information was material and
the Sweat
exculpate
by pro
writ
therefore
defendant’s habeas
letters do
Williams
an alternative
DeLao
granted.
posing
suspect
should be
Id. at 1057.
to the
murder; rather, they identify
perspective
Fields as an from the
prosecutor
of the
at
suspect
accomplice
or
to the
the time of
additional
non-disclosure. The Sweat
letters,
most,
McKaney
At
the lеtters state that
not the
crime.
and Barnett dec-
(which
act,
commit the
paid
prosecu-
Fields to
larations
were never in the
files),
they
expressly
maintain
tor’s
potential Brady
are the
materi-
guilty
part
is
of some
of it.”
al. The
exculpatory
“[Williams]
Sweat letters are not
crime,
culpability
as to Williams’s
for the
identify an accomplice
That the letters
McKaney
post
and Barnett’s
hoc dec-
suspect
rather than an alternative
is dis-
retroactively
larations cannot
make them
positive of Williams’s claim that the letters
so.
are material as to his conviction. Our case
suppressed
law advises that
evidence is not
inquiry,
This does not end the
however.
(and
fail)
exculpatory
claim will
if The
Court has made clear that
merely suggests
suppressed
the evidence
that another
evidence which is not material
defendant,
person
“equally guilty”
as the
guilt may
to the defendant’s
still be mate-
ifor
it fails to
that “the
rial
[defendant
show
to the defendant’s sentence.
Cone,
guilty,
any
Indeed,
or that
is] not
he
less
[is]
1786.
such was
Ylst,
guilty.” Morris v.
Brady,
740 the case in
in which
prosecutor
(9th Cir.2006).
Arizona,
In
person may
suppressed
accomplice’s
confession to
guilty
degree
of first
murder whether
the crime for which the defendant was
he hires someone to commit
act
or
convicted
and sentenced to death.
himself,
State,
commits it
see
Ariz.Rev.Stat.
226 Md.
174 A.2d
(1989);
Carlson,
(1961).
§ 13-1105
e.g., State v.
The state court determined that
Thus,
202 Ariz.
errs its decision be- inconsistencies in the McKa- any right ney cause has waived Williams and Barnett declarations. Given because hearing, such does express Williams’s disavowal of an in-court not allow a court to evaluate the materiali- hearing, the district court’s decision not to ty suppressed through evidence the lens hearing in-person hold the was at most testimony gathered error, information and certainly invited not a basis for years after trial. Corp., remand here. See Marx v. Loral (9th Cir.1996) F.3d (stating that First, majority acknowledge fails to appellants “should be barred from assert- right that has waived his to an in- Williams ing theory appeal” on directly [a] evidentiary hearing court claim. this contradicts position their the district appellate only pass- Williams’s brief makes court); Republic Deland v. Old Ins. ing hearing mention of the in-court Life issue Co., (9th Cir.1985) 758 F.2d any analysis legal authority. without or (stating litigant “may that a not on review The rule in this circuit is that “we review complain objection of issues ... where the only issues which argued specifically are is position inconsistent with the taken be- distinctly in a party’s opening brief.” (internal omitted)). quotation low” marks F.A.A., (9th Greenwood v. Cir.1994). “We will not argu- manufacture majority’s reasoning on point this appellant.” ments for an Id. Williams’s misses the majority mark. While the ex- single observation that the district court plains Williams’s motivation for opposing should have in-person conducted an evi- (because the State’s motion in Williams’s dentiary hearing, without supporting rea- view, the State should already have com- soning, is insufficient to raise this issue on pleted its investigation matters), of these Marcos, appeal. See Hilao v. Estate of majority does not make clear how this (9th Cir.1996). n. 4 F.3d additional negates information the fact To the extent this issue is even before expressly opposed Williams an in- us, Williams is barred from arguing for an evidentiary hearing. Maj. Op. at in-person evidentiary hearing. only Not Rather, 1266-67. the majority acknowl- did Williams fail to move the district court edges that the State moved for an in-court in-person for an hearing, actively he op- evidentiary hearing, and that op- Indeed, posed one. given by reason posed Maj. Op. it. at 1266-67. holding district court for a paper hear- Second, in-person ing evidentiary hear- rather than an in-court one was that ing would serve purpose no this Williams’s motion for a context. hearing did “not A reviewing identify specific court’s evaluation of evidence to be whether developed suppression evidentiary particular at an of a hearing, why piece or of ev- indicate particular prosecutor’s idence violated the requires presenta- oral duties un- Later, tion.” when der government based on the character of re- quested that hearing information prosecutor conducted in- known to the person, objected, time, is, trial, the relevant arguing that an before dur- in-person hearing ing trial, was unwarranted be- the course of during sentenc- cause State of Arizona ing. “[t]he has had over Agurs, See United States v. years they fifteen since received the let- issues, (1976) (“[I]n
ters to investigate these and ... advance of and perhaps five provided by additional months during well, [the the course of a trial as district specifically what, court] for” the purpose prosecutor anything, must decide if
1279
evidentiary hearing)
and an
voluntarily
to defense
declarations
submit
he should
Wilhoit,
counsel.”);
Brady
v.
368
into
determination for an obvi-
F.3d
the
Villasana
Cir.2004)
(8th
(“[T]he
prosecutor’s
the
letters themselves
979
ous reason:
Sweat
Brady
under
is
duty
guilt.
to disclose
to
exculpatory
absolute
are not
as Williams’s
prosecu-
a
to
reasonable
prosecutor
limited
evidence
have
Nor could
reasonable
being
at
time
perceive
would
the
might
tor
to
known that the Sweat letters
lead
to the defense.”
favorable
material and
evidence,
contrary to
because
exculpatory
added)).
Information
(emphasis
majority’s suggestion, Maj. Op.
the
see
at
sentencing
to
after trial and
light
comes
1267-68,
contradict
the
the declarations
materiality
potential
of
alter the
cannot
crucial
of
Sweat letters as to the
issue
only perspec-
from the
Brady information
Williams’s culpability for the crime. Pros-
the
of the
perspective
that matters:
tive
under
to
obligation
Brady
ecutors have no
time
the
of non-disclosure.
prosecutor at
in
weigh
the evidence
their files
whether
427
at
II
proceedings.
83,
See
preparation, and does not extend to the
defendant’s sentencing proceedings.
A
id.
argues
that the state court un-
respect
With
to the defendant’s
pro-
due
reasonably
Ake,
applied
68,
cess entitlement to a psychiatric expert at
84 L.Ed.2d
when it denied
sentencing,
provides
Ake
a separate test.
him psychiatric assistance at sentencing to
Ake,
Under
entitlement
psychiatric
to a
present mitigating evidence related to his
expert at sentencing is limited to defen-
crack cocaine usage.
supreme
The state
charged
dants
with
crimes. See id.
claim,
court reached this
but did not ex-
(“We have repeatedly recognized the de-
plain its
reasoning
rejecting
agree
it.
I
fendant’s compelling
adju-
interest
fair
majority
that when the state
dication at the sentencing phase
capi-
of a
court denies rеlief on the
pro-
merits but
case.”).
tal
“[I]n
context of a capital
vides no
decision,
rationale for its
“per-
we
sentencing proceeding,” Ake holds that a
form an ‘independent review of the record’
defendant is entitled to a mental health ex-
to ascertain whether the state court deci-
pert only “when the State presents psychi-
sion was
objectively
unreasonable.”
atric evidence of the defendant’s future
Himes
Thompson,
336 F.3d
dangerousness.”
Id. at
1281 B phase trial to Williams’s test for the Ake’s psychiatric of a deprived that he was to treat The state court refused Maj. at 1269 sentencing. Op. at expert as a factor drug mitigating use Williams’s govern requiring as the (interpreting Ake con- deciding his sentence. Williams to a expert provide psychiatric a ment court’s was that the state refusal tends defendant, sen capital at trial and both drug that use requirement on a based make the can tencing, when the defendant of a direct cаusal nexus his crime have sanity “his at the showing that threshold conviction, require- that this causal significant the is to be a time of offense contrary to or unreasonable (internal omitted)); ment was mark quotation factor” 12, Netherland, 10, of Court application precedent. v. 516 U.S. Tuggle cf. (1995) 283, See, Oklahoma, L.Ed.2d 251 455 U.S. e.g., Eddings S.Ct. 133 v. 116 (“[W]e ], prose 114-15, 869, a 104, [ held in Ake when 1 71 L.Ed.2d 102 S.Ct. anof presents psychiatric evidence (1982). cutor supreme the state court Because dangerousness future indigent defendant’s on its in a adjudicated this claim merits sentencing proceeding, due capital in a decision, the deferential AEDPA reasoned requires provide that the State process Himes, at applies. standard of an inde with the assistance defendant Therefore, 2254(d)(1), § under we 852-53. Simmons v. South psychiatrist”); pendent only court’s reverse the state decision can 2187, Carolina, 154, 165, 114S.Ct. 512 U.S. to, or an unrea- contrary if it “was involved (1994) Ake (interpreting of, clearly application established sonable ato holding a defendant is entitled as law, determined the Su- Federal sentencing capital at expert psychiatric States.” Court of the United preme presents the State “where proceedings fu of a defendant’s at majority opinion, in the psychiatric evidence As described in majority’s dangerousness”). ture courts time of Williams’s Arizona Ake, view, my is errone terpretation of un- mitigating refused consider ous. a to the crime that evidence had nexus less being was sen- for which the defendant was argues that he
Because Williams See, Ariz. Djerf, v. 191 e.g., tenced. State expert оnly at sen a psychiatric denied (1998). 583, 1274, Following of rejection court’s P.2d 1289 tencing, state 959 contrary to rule, could de- sentencing Ake claim court Williams’s state this only Ake application of or an unreasonable a drug use as to consider Williams’s clined psychiatric government presented if factor because it determined mitigating dangerous of future evidence Williams’s “[wjithout showing impair- of some proceedings. capital sentencing in his ness offense, drug use at the time of the ment 86, 105 (holding 1087 S.Ct. 470 U.S. mitigating circumstance cannot be psychiatric entitled to a the defendant was Williams, P.2d at 904 kind.” “future sentencing because his expert majority that this deci- agree I with the significant factor dangerousness was contrary by the state court sion Here, govern sentencing phase”). Supreme Court hold- clearly established required level Applying did not. ment Ohio, 438 98 U.S. ings Lockett deference, therefore AEDPA (1978) (plurali- 57 973 L.Ed.2d S.Ct. objectively unreasonable 104, 102 455 U.S. S.Ct. 2254(d)(1); ty), Eddings, § claim. See deny this from prohibit courts 63, 75, both which Andrade, 123 Lockyer (2003). excluding mitigating evidence 1166, 155 categorically L.Ed.2d S.Ct. its sentencing from consideration ducted review. v. Taylor, See Williams Eddings, 455 U.S. at proceedings. See (“[The
114-15,
sentencing
cannot fault
We
*23
may
weight
determine the
to be
court]
for failing
apply precedent
state court
mitigating
relevant
evidence. But
given
that did not come into
until
existence
after
give
weight by
may not
no
[the court]
petitioner’s
its consideration of a
case.
excluding such evidence from
consid-
[its]
See id.
Lockett,
eration.”);
604,
438
at
U.S.
98
Here, the
supreme
state
court rendered
(“[I]n
2954
all but the rarest kind of
S.Ct.
26,
its dеcision on September
case,
sentencing court
[the
should] Williams,
Therefore,
AEDPA.
Supreme
The
Court has made
are
“clearly
Tennard
therefore not
estab
“ ‘clearly
clear that
established Federal
law,”
lished Federal
and the state court’s
law’ under
governing
is the
legal
[AEDPA]
decision cannot
judged against
the prin
principle
principles
or
set forth
ciples
announced
those cases. See Mur
Supreme Court
at
time the
doch,
Tennard Appellant, announced Ed the rule they reiterate Schriro, Styers v. dings Lockett. See Cir.2008) (9th (per F.3d Warden; ADAMS, Attorney Darrell G. curiam) principle for the ar (citing Smith California, of the General State beyond But this in Eddings). ticulated Respondents-Appellees. and Tennard applicability, Smith limited No. 08-16472. be consid not and cannot themselves are *24 law” Federal for “clearly established ered Appeals, States Court of United analysis court’s this purposes Ninth Circuit. claim. Williams’s Argued and Submitted Feb. 26, 2010. Filed Oct. Ill erroneously remands to majority evidentia- court for an in-court the district on matters not relevant de-
ry hearing Brady only claim. Not
ciding Williams’s evidentiary hearing not war-
an in-court here, relief that but it is a form of
ranted request before properly did court, disavowed before expressly
this view, my govern- In
the district court. the defense failure to disclose to
ment’s concerning an alter- information
credible the murder constitut- perpetrator
native respect violation with
ed sentence, and Williams’s writ
Williams’s I granted punishment. to his
should be respectfully dissent from ma-
therefore of Williams’s
jority’s treatment the issues identified Except
claim.
above, my colleagues’ decision as to join I
the remainder claims. Williams’s