Correll v. Stewart

• Decision Date: 08 December 1997
• Docket Number: No. 95-99012,95-99012
• Citation: 137 F.3d 1404
• Parties: 98 Cal. Daily Op. Serv. 1678, 98 Daily Journal D.A.R. 2309 Michael Emerson CORRELL, Petitioner-Appellant, v. Terry L. STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1404

137 F.3d 1404

98 Cal. Daily Op. Serv. 1678, 98 Daily Journal

D.A.R. 2309

Michael Emerson CORRELL, Petitioner-Appellant, v. Terry L. STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.

No. 95-99012.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 1997. ^*

Decided March 9, 1998.

Brian R. Dando, Phoenix, Arizona, and Charles J. Muchmore, Muchmore & Wallwork Phoenix, Arizona, for petitioner-appellant.

Paul J. McMurdie, Office of Attorney General, Criminal Appeals Section, Phoenix, Arizona, for respondents-appellees.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-87-1471-PHX-SMM.

Before: SCHROEDER, O'SCANNLAIN and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

Michael Emerson Correll was sentenced to death for participating in the execution-style shooting of three innocent victims in the Arizona desert. Convicted of first-degree murder, attempted first-degree murder, kidnapping, armed robbery, and first-degree burglary, he appeals the district court's denial of habeas corpus relief. We affirm the district court on all counts, except Correll's claim that he is entitled to a federal evidentiary hearing as to whether his trial counsel ineffectively assisted him at sentencing.

I.

At approximately 12:30 a.m. on the morning of April 12, 1984, Guy Snelling and his companion, Debra Rosen, returned to the mobile home where Snelling resided after attending a Wang Chung concert. Throughout the preceding evening, Snelling had been drinking bourbon, and had consumed both cocaine and marijuana. Soon after Snelling and Rosen had gone to bed, John Nabors, Snelling's co-worker, knocked at the door of the mobile home, saying "Guy, it's me, John, I've got to talk to you-I've got to see you." When Snelling answered the door, he encountered Nabors and a man whom Nabors introduced as his friend, Rick. Snelling later identified "Rick" as Michael Correll.

Snelling let Nabors and Rick into the mobile home. Nabors asked Snelling if he had any speed and if he had a gun. After Snelling answered negatively, Nabors produced a gun, cocked it, aimed it at Snelling, and said "I hate to do this--I know you've got some money." At Nabors' direction, Snelling summoned Rosen and told her "we're being robbed." Rick secured Snelling's and Rosen's hands and feet with duct tape. Soon thereafter, a car pulled up to the mobile home, frightening Nabors and Rick. Nabors dragged Rosen into a bedroom while Rick remained with Snelling.

The occupants of the car were Robin Cady, who rented a room from Snelling, and her companion, Shawn D'Brito. When Cady and D'Brito entered the mobile home, Nabors held the gun up to Snelling's head and told the couple, "You guys just walked into a whole bunch of shit." Rick taped Cady's and D'Brito's hands and feet. Then, Nabors and Rick escorted Snelling throughout the mobile home, retrieving marijuana and approximately $4,700 in cash from various rooms and from Rosen's and Cady's purses.

About forty-five minutes later, Nabors and Rick forced Snelling, Cady, and D'Brito into Snelling's car. While Rick sat in the driver's seat, holding the gun, Nabors returned to the mobile home, explaining that he was going to "tape Debbie up a little better." When Nabors returned to the car, Rick drove the car to a deserted area nearby, where Nabors' truck was parked. Nabors got into his truck and, with Rick following in the car, drove to a desert area north of Phoenix. Nabors and Rick pulled Snelling, Cady, and D'Brito out of the car and forced them to lie on the ground. Rick told Snelling, "I'm going to have to knock you out now," and shot him in the head. The bullet entered Snelling's left earlobe, passed down the skull, chipped the vertebrae between the trachea and esophagus and came to rest in his jawbone. Miraculously, not only did Snelling survive, but he remained conscious and fully aware of his surroundings.

Meanwhile, Nabors had taken the gun. As Snelling watched, Nabors killed D'Brito and tried to shoot Cady, but the gun misfired. Cady pleaded for her life, but Nabors got down on one knee and told her, "Now, girl, just hold still," and finally succeeded in shooting her.

After Nabors and Rick had left, Snelling freed himself and ran to Cady. Seeing that she was swallowing her tongue, he ran to the nearest residence to call his parents, who lived in a house next to his mobile home. Snelling told his mother that he had been shot in the head, and asked her to go next door and rescue Rosen before Nabors and Rick could return to harm her. Unfortunately, Snelling's parents found Rosen already dead from strangulation. Snelling also contacted the police and described both Nabors and Rick. The officers found Snelling "extremely excited," but "definitely coherent." They found D'Brito and Cady dead from gunshot wounds to the head.

While Snelling was hospitalized for his injury, the police showed him two photographic lineups. One of the lineups contained a photograph of Nabors, whom Snelling identified as one of his assailants. About a week later, a police detective showed Snelling another photographic lineup containing a photograph of Michael Correll, whom Snelling identified as the second assailant.

On April 20, 1984, Michael Correll was apprehended at his father's residence in Las Vegas, Nevada, where he had fled. In addition to Snelling's lineup identification, the evidence incriminating Correll included a photographic lineup identification by a taxi driver who recalled picking up Correll from a Phoenix hotel on April 13 and driving him to the airport; boot prints that Correll had left at the crime scenes; Correll's known association with Nabors and his use of the alias "Rick Watson"; and a recorded phone call that Correll's brother, Terry, had placed to Correll in Nevada at the request of the police. During this call, Terry informed Correll that Nabors had been found dead in a hotel room after a police shootout, resulting in the following exchange:

Mike: Okay, uh, they don't know who I am.

Terry: Yeah, they don't?

Mike: Uhhuh (no)

Terry: Okay, right on.

Mike: Okay. Right on. Is it safe back there?

Terry: Um, probably not., haha, but you know um, because you know, um, I guess whoever, who, you know, whoever was used, you know, you're worried about is uh, um is pretty mad at you too.

Mike: well, they don't know, they don't know (unintelligible) who I am.

Terry: Yeah, but one of the guys is still alive.

Mike: Right, well, he won't, he won't be for long.

Terry: Okay, well, I guess, you know.

Mike: I'll take care of business there.

Correll was subsequently charged with three counts of first degree murder, one count of attempted first degree murder, one count of first degree burglary, one count of armed robbery, and four counts of kidnapping.

Before Correll's trial began, Correll unsuccessfully moved for the appointment of new counsel, asserting that he and his court-appointed attorney did not "see eye to eye on matters in the case." In addition, Correll moved to suppress evidence, including marijuana, that the police had seized from his car and the Las Vegas apartment at the time of his arrest. After the prosecution agreed not to offer as evidence any of the items the suppression motion covered, the court dismissed the motion as moot. Finally, Correll moved for a mental examination pursuant to Ariz. R.Crim. P. 11. During a colloquy with the prosecution and defense counsel concerning this motion, the trial judge, Judge Howe, stated:

I got a call from Dr. Garcia [the court-appointed psychiatrist] Friday. He looked at Mr. Correll and said he is, in Dr. Garcia's word, antsy, but he has no pathology of any sort to indicate that there is any mental difficulty or that there ever has been and he sees no grounds for proceeding with the Rule 11 unless you have some other information.

When he learned that the defense had no further information, Judge Howe denied the Rule 11 motion, observing: "Your [sic] are disgustingly healthy, Mr. Correll, mentally at least, according to Dr. Garcia."

Correll's trial began on October 16, 1984, and lasted for three days. Rather than calling any witnesses for the defense, Correll's attorney sought through cross-examination to present a defense of misidentification--namely, that Snelling had wrongly identified Correll as one of his assailants, and that it was reasonably likely that Correll's brother Terry, who resembled Correll, had committed the crimes in Correll's stead. Of the twenty witnesses the prosecution called, Correll's attorney cross-examined eleven. His questioning focused on two areas. First, he directly attacked the reliability of Snelling's identification. He elicited testimony from Snelling regarding the alcohol and drugs that Snelling had consumed during the evening preceding the murders, available sources of light during the crimes, and the acuity of Snelling's vision, with and without the glasses he customarily wore. Correll's attorney also cross-examined Terry Correll about his resemblance to his brother. Second, Correll's counsel attempted to discount the physical evidence of Michael Correll's presence at the crime scenes by casting doubt on the reliability of the boot prints, pointing out that Correll's fingerprints had not been found in Snelling's mobile home, and establishing that it was impossible to determine the date of the fingerprints Correll had left inside Nabors' truck.

The jury found Correll guilty on all counts. At Correll's November 23, 1984 pre-sentencing hearing, which lasted twenty-three minutes, his counsel again called no witnesses and presented no evidence. Correll's attorney had submitted a brief sentencing memorandum devoting less than one page to mitigating circumstances, and failing to discuss Correll's psychiatric condition at the time of the murders.

Similarly, his argument at sentencing occupied roughly...