Libberton v. Ryan

• Decision Date: 02 October 2009
• Docket Number: No. 07-99024.,07-99024.
• Parties: Laurence K. LIBBERTON, Petitioner-Appellant, v. Charles L. RYAN, interim Director of the Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

583 F.3d 1147

Laurence K. LIBBERTON, Petitioner-Appellant, v. Charles L. RYAN, interim Director of the Arizona Department of Corrections, Respondent-Appellee.

No. 07-99024.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2009.

Filed October 2, 2009.

Jose A. Cardenas, Lewis & Roca, Phoenix, AZ, Denise Irene Young, Tucson, AZ, for the petitioner-appellant.

Robert J. Gorman, Jr., Kent E. Cattani, Office of the Arizona Attorney General, Tucson, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding. D.C. No. CV-97-01881-EHC.

Before W. FLETCHER, RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges.

William A. FLETCHER, Circuit Judge:

Laurence Libberton, Steven James, and Martin Norton were convicted in separate proceedings in Arizona state court for crimes connected to the murder of Juan Maya. The prosecution theory at trial was that Libberton, along with James and Norton, severely beat Maya, drove him to an isolated area, killed him, and threw his body down a mine shaft. The prosecution contended that Libberton and James were essentially equal participants in the murder. The prosecution contended that Libberton, who had recently walked away from a work furlough program, participated in the killing because he wanted to use Maya's car to flee the jurisdiction. The jury returned a verdict of guilty for first degree murder, robbery, theft, and kidnapping. The judge sentenced Libberton to death.

James was convicted of first degree murder and sentenced to death in a separate trial. Norton, a minor, pleaded guilty in juvenile court to participating in the murder and was sentenced to three years in prison. In accordance with his plea agreement, Norton testified at Libberton's trial. Norton described Libberton as a central and willing participant in Maya's murder.

The federal district court denied Libberton's petition for a writ of habeas corpus. Libberton appeals five holdings by the district court. Two of those holdings were not certified as appealable issues by the district court, but we certified them before holding oral argument.

One of Libberton's arguments concerns whether his current federal petition for habeas corpus is governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Because our holding on this issue affects our holdings on the others, we address it first.

The four remaining issues are as follows. First, Libberton claims that Norton entered into a deal with prosecutors that affected his testimony at trial. Libberton contends that the state failed to disclose this deal, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Second, Libberton claims that prosecutors failed to correct Norton's false testimony that he had not been given the aforementioned deal, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Third, Libberton claims that the state courts applied an unconstitutional sentencing factor, in violation of Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). Fourth, Libberton claims that his counsel was unconstitutionally ineffective in connection with his sentencing in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For the reasons that follow, we hold that AEDPA governs Libberton's habeas petition. We affirm the district court's denial of habeas on Libberton's first three claims, as numbered above. We reverse on his fourth claim. The result is that we deny Libberton's petition for a writ of habeas corpus with respect to the guilt phase of his trial, but grant with respect to the sentencing phase.

I. Background

A. The Investigation

On November 18, 1981, Laurence Libberton, Martin Norton, Steven James, and Daniel McIntosh were taken into custody on suspicion of forgery. Libberton had used identification belonging to Juan Maya while attempting to cash a check at a bank. He was apprehended as he was leaving the bank. The others were apprehended while waiting outside in Maya's car. Libberton was booked into county jail on suspicion of forgery. Norton, James, and McIntosh were released. After Maya's father informed police that his son was missing, police located and interviewed Norton and James.

During his first interview with police investigators, Norton told police Detective Russell Davis different versions of what had happened on the night of November 16, two days earlier. Norton initially said that he had been hitchhiking that evening and had been picked up by Maya. He reported that he had gotten into Maya's car, and Maya had made "sexual advances at him by trying to kiss him and put his hands in his pants." Norton claimed that he responded by punching Maya, getting out of the car, and fleeing. Norton went to Steven James's trailer where he had been living, but Maya followed him in the car. According to this version of his story, Norton was able to evade Maya before reaching the trailer. Norton said that he never saw Maya again.

However, as the interview continued, Norton changed his story. Norton now said that Maya came to James's trailer, and that he saw James and Libberton beat Maya. In this version of his story, Norton claimed that after severely beating Maya, James and Libberton put Maya in the back seat of his own car. James and Libberton then drove away with Maya in the car, telling Norton that they would be back "in a little while" and that he should clean up the trailer while they were gone. When Libberton and James returned hours later, they told Norton "not to tell a soul about this, or [Norton] would die the same way [Maya] did."

Police then interviewed James. James said that Norton came running up to the door of James's trailer on the evening of November 16 and told James that someone, who turned out to be Maya, was "following him and was trying to rape him." James said that he and Norton left the trailer in search of Maya. They saw him "running down the drive further into the park." They chased him, caught him, and brought him back to the trailer. James said that Norton slapped Maya, and tried to get him to reveal "where his money was at." James said that Norton and Libberton then took Maya out to his car and put him inside. At that point in the interview, James requested a lawyer.

Shortly thereafter, James voluntarily offered to show investigators Maya's body. Police drove with James to his parents' property southwest of Salome, Arizona. James directed police to a mine shaft on the property in which they could see Maya's body.

Norton was interviewed again on November 26, this time by Detective Jack Hackworth. Norton had now been charged with forgery and murder. Norton once again stated that he was hitchhiking on the evening of November 16 and that Maya picked him up. Norton said that Maya's car had electric locks and that Maya locked the doors once Norton was inside the car. He said that "he became frightened" after Maya made sexual advances toward him, and that he told Maya that if he went with him to a friend's trailer, Norton "had a friend that was also queer there and they could make out." Norton said that Maya agreed. After reaching the trailer, however, Norton said that he told James and Libberton that Maya was "a queer," and that James and Libberton assaulted him, making him bleed profusely. James took Maya's wallet and threw it to Norton. James pulled out a rusty pistol and pointed it at Maya, and James and Libberton then dragged Maya outside to his car. In this version of his story, Norton said that he got into the car with the others. Norton said that James drove while Libberton sat in the back seat pointing a gun at Maya.

Norton said that during the drive, James stopped at a gas station where he purchased a carton of cigarettes and filled Maya's car with gas. James used Maya's credit card and forged Maya's name on the receipt. James said during the ride that they were going to shoot Maya and throw him down a mine. According to Norton, Maya could hear what Libberton and James were saying. Norton said that he pleaded with the other two men not to kill Maya, but that Libberton responded: "No, if we don't kill him, he will snitch us off."

Norton said that once they reached the mine, James pointed the gun at Maya and walked him up to the opening to the mine shaft. James then shot Maya in the left forearm and handed the gun to Norton. Norton said that he then passed the gun on to Libberton, who shot Maya in the head. Maya appeared to be breathing, so James shot him again. He still appeared to be alive, so James hit him with a large rock. Libberton did the same. Both James and Libberton then told Norton to hit Maya with a rock. Norton said that he threw a rock toward Maya, but missed. James then said, "You either help kill him or we'll kill you." Norton said that he then hit Maya in the back with a rock.

Norton said that James and Libberton dragged Maya by his belt up to the mine shaft and threw him in. The three men then returned to Maya's car and drove back to Phoenix. Norton said, "It was pretty quiet [in the car]. Nobody said much other than both [Libberton] and [James] told me if I told anyone, I would be in the shaft with him."

After Norton gave this statement, the Juvenile Division of the Maricopa County Superior Court appointed attorney Robert A. Wertsching to represent him. Norton was fourteen years old at the time of the crime. During Libberton's state post-conviction proceedings in 1994, Libberton submitted an affidavit signed by Wertsching in which Wertsching stated that soon after his appointment he had at least two conversations with the head prosecutor of the juvenile division, during which they discussed whether the County Attorney would agree to try Norton as a minor rather than as...