Cook v. Schriro

• Decision Date: 20 February 2008
• Docket Number: No. 06-99005.,06-99005.
• Citation: 538 F.3d 1000
• Parties: Daniel Wayne COOK, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, Arizona Department of Corrections, State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 1000

Daniel Wayne COOK, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, Arizona Department of Corrections, State Prison, Respondent-Appellee.

No. 06-99005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2007.

Filed February 20, 2008.

Amended August 14, 2008.

Michael J. Meehan, Munger Chadwick, P.L.C., Tucson, AZ, for the petitioner-appellant.

Kent E. Cattani, Chief Counsel, Capital Litigation Section, Office of the Attorney General, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-97-00146-PHX-RCB.

Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

The opinion filed February 20, 2008, is amended by the opinion filed concurrently with this order. With the filing of the amended opinion, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge of the court has called for a vote on en banc rehearing. See Fed. R.App. P. 35(f). The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

CALLAHAN, Circuit Judge:

Petitioner Daniel Wayne Cook appeals the denial of his 28 U.S.C. § 2254 petition. Cook waived counsel and represented himself at trial through sentencing. A jury convicted him of two counts of first-degree murder and the court sentenced him to death under Arizona Revised Statutes §§ 13-503 and 13-703. Cook now claims that his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; that his co-defendant, John Eugene Matzke's plea agreement violated Cook's right to a fair trial; and that the prosecutor improperly commented on Cook's failure to testify and his post-Miranda silence. In addition, Cook claims that the trial court erred by failing to instruct the jury on second-degree murder. Cook also argues that the ineffectiveness of his appellate counsel excuses his procedural default of some of his remaining claims. Finally, Cook argues that the sentencing court failed to consider evidence of intoxication and his prior mental health history as mitigating factors before imposing the death penalty. We affirm the district court's denial of Cook's petition for a writ of habeas corpus.

FACTS¹

On July 19, 1987, Cook and Matzke were living together in a two bedroom apartment in Lake Havasu City, Arizona. Carlos Cruz-Ramos, a co-worker at a local restaurant, who recently had moved in with Cook and Matzke, slept on the floor. After Matzke returned from work that afternoon, Cook told Matzke that he knew Ramos had a lot of money and that he wanted to take it. At approximately 6:00 p.m., Cook suggested that Matzke take Ramos upstairs to show him the view from Matzke's bedroom balcony. After Matzke and Ramos returned downstairs, Ramos discovered his money pouch was missing, and Cook suggested that Ramos look for the pouch upstairs. When Ramos went upstairs, Cook grabbed him, Matzke ripped up some bedsheets, and they tied Ramos to a chair in Cook's bedroom. Cook punched and taunted Ramos before putting Ramos in Cook's closet so that Cook and Matzke could look through Ramos's other possessions. Ramos escaped from the closet, but Cook chased him down, took him back upstairs, and re-tied him to the chair.

Cook and Matzke began beating Ramos with a metal pipe and a stick. Cook and Matzke also burned Ramos's chest, stomach, and genitals with cigarettes. Cook cut Ramos's chest with a knife, and Matzke put a bandage on the cut to stop the bleeding. At around 9:45 p.m., Matzke went to the Acoma Stop and Shop to buy beer. When Matzke returned to the apartment, he saw Cook sodomize Ramos. Cook also used a mini-stapler on Ramos's foreskin. Matzke asked Cook why he was torturing Ramos, and Cook replied, "I'm having fun."

At around 11:00 p.m., Matzke told Cook that they could not let Ramos go, and Cook responded, "Well, you can kill him at midnight; the witching hour." Cook and Matzke continued torturing Ramos until midnight, then Matzke attempted to strangle Ramos with a sheet and the pipe. Matzke eventually placed Ramos on the floor, placed the pipe across Ramos's neck, and stood on the pipe until Ramos's heart stopped beating at around 12:15 a.m. After throwing Ramos's body down the stairs, Cook and Matzke placed the body in Matzke's closet.

At around 2:30 or 3:00 a.m., Kevin Swaney arrived at Cook's apartment. At first, Cook told Swaney to leave but then Cook asked Swaney to come into the apartment. Cook told Swaney that they had some drugs they wanted to get rid of, and pushed a couch in front of the door so nobody would come into the apartment. Then Cook and Matzke told Swaney about the dead body. Cook took Swaney upstairs to show him the body and, when they returned downstairs, Cook told Matzke to get bindings and a gag. Cook forced Swaney to take off his clothes, and Matzke and Cook tied Swaney to a chair. Matzke asked Cook what Cook was planning to do, and Cook said he was going to talk to Swaney. Matzke told Cook that if he was going to torture Swaney, Matzke did not want any part of it. Matzke went to the living room and fell asleep.

At around 4:30 or 5:00 a.m., Cook woke Matzke. Swaney was still tied up and crying. Cook told Matzke that he sodomized Swaney so now they had to kill him. Cook took a sheet from around his neck and wrapped it around Swaney's neck. Matzke and Cook each took one end of the sheet and pulled, but Matzke's end kept slipping out of his hand. At that point, Cook said "This one's mine," put Swaney on the floor, and strangled him. Matzke and Cook took Swaney's body up to Matzke's room and placed the body in the closet. Matzke and Cook went back downstairs and slept.

That afternoon, Matzke went to work for two and a half hours before quitting because he was concerned about what Cook would do if he was not there. When Matzke got home, he and Cook went to a bar and drank for several hours. At 10:30 p.m., they returned to the apartment and met Byron Watkins and other friends by the pool of their apartment complex. Cook and Matzke invited their friends into the apartment. The next morning, Matzke showed Watkins the bodies. Watkins convinced Matzke to go to the police. Matzke and Watkins went to the police department, and Matzke gave a videotaped confession.

Officers responded to the apartment and arrested Cook at around 4:50 a.m. After Detective David Eaton gave Cook Miranda warnings, Cook said, "we got to partying; things got out of hand; now two people are dead." Cook then said that "my roommate killed one and I killed the other." He admitted to choking Swaney to death. After making those admissions, Cook refused to make any further statements.

PROCEDURAL HISTORY — TRIAL

On July 21, 1987, Cook and Matzke were charged with two counts of first-degree murder, including a death penalty allegation under Arizona Revised Statute § 13-703. Claude Keller was appointed to represent Cook. A grand jury returned an indictment on two counts of first-degree murder against Cook and Matzke.

Cook was given psychological evaluations on October 23, and November 17, 1987. The court held a hearing on January 4, 1988, and concluded that Cook was competent to stand trial. Cook's counsel filed a motion for an additional mental examination on January 14, 1988, and a neurological examination was performed on or about February 13, 1988. The results of the February 13, 1988, examination were filed with the court.

On April 11, 1988, Cook filed a pro se motion to waive counsel and have his counsel appointed as advisory counsel. During the April 21, 1988, hearing on Cook's motion to waive counsel, Cook asked for a different advisory counsel, stating, "If you're amenable to my waiver of counsel, I would ask that you not appoint Mr. Keller as my legal advisor." Cook explained, "Mr. Keller has worked hard for my defense; cares about the outcome of my trial. My personal beliefs is that he cannot advise me according to my defense." Cook then asked for Mr. O'Brien to be his advisory counsel, but the court indicated that Mr. Forrester was the only other contract counsel available. Cook rejected Mr. Forrester. Judge Steven F. Conn of the Mohave County Superior Court gave Cook a lengthy explanation of the perils of self-representation. Cook still wanted to represent himself. After conducting extensive questioning pursuant to Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the court found that Cook voluntarily, knowingly, and intelligently gave up his right to counsel. The court granted Cook's motion and appointed Mr. Keller as Cook's advisory counsel.

Matzke entered into a stipulated guilty plea and executed an agreement to testify truthfully in a manner consistent with his videotaped confession on October 30, 1987. The trial judge sentenced Matzke to twenty years in prison. Cook's investigators and his advisory counsel attended Matzke's sentencing hearing. Matzke testified at Cook's trial on June 28, 1988, and again on July 5, 1988.

On December 16, 1987, the State filed a motion of potential election and motion to preclude evidence of intoxication. At a hearing on June 24, 1988, Cook did not oppose the motion, stating: "What [the prosecutor] brings up in his motion basically does not even apply to my defense, your Honor."² At trial, Cook elected general denial and alibi theories as his affirmative defenses. Cook reiterated that he did not want to present evidence of drinking or drug use by him or Matzke during a pre-trial conference.

Cook also claimed in his opening statement that he "merely repeated the detective's statement and I asked for an attorney and I have nothing further to say,"...