Stanley v. Schriro

Decision Date11 March 2010
Docket NumberNo. 06-99009.,06-99009.
Citation598 F.3d 612
PartiesMilo McCormick STANLEY,Petitioner-Appellant, v. Dora B. SCHRIRO, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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Gilbert H. Levy (briefed), Seattle, WA and Paula K. Harms (briefed and argued) and Sylvia Lett (briefed), Assistant Federal Public Defenders, Phoenix, AZ, for the petitioner-appellant.

Kent Cattani (briefed and argued), Chief Counsel, and J.D. Nielsen (briefed), Assistant Attorney General, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona, Mary H Murguia, District Judge, Presiding. D.C. No. CV-98-00430-PHX-MHM.

Before: B. FLETCHER, ANDREW J KLEINFELD, and JOHNNIE B RAWLINSON, Circuit Judges.

Opinion by Judge RAWLINSON; Concurrence by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

RAWLINSON, Circuit Judge:

Petitioner Milo Stanley (Stanley) was convicted by a jury of first-degree murder of his wife and five-year-old daughter. The court sentenced Stanley to life in prison for the murder of his wife and to death for the murder of his daughter. Stanley's conviction and sentence were affirmed by the Arizona Supreme Court on direct appeal and his state petitions for post-conviction relief were denied. He subsequently filed a petition for writ of habeas corpus in the district court and now appeals the district court's denial of that petition.

Stanley asserts three grounds for relief. First, Stanley contends that his Miranda1rights were violated when officers ignored his attempted invocation of those rights and continued interrogating him until they secured a confession. Second, Stanley posits that trial counsel rendered ineffective assistance during the guilt phase of trial by failing to present readily available evidence to support an insanity defense and a lack of premeditation defense. Third, Stanley argues that trial counsel rendered ineffective assistance during the penalty phase of trial by failing to investigate and present readily available mitigating evidence. It is the last ground that gives us pause, as we take note of Justice O'Connor's remarks in 2001 that prompted the New York Times to editorialize that the "legal representation afforded most indigent defendants in capital cases" is woefully inadequate. Editorial, Justice O'Con- nor on Executions, N.Y. Times, July 5 2001, at A16.

Because we are convinced that defense counsel's performance did not prejudice Stanley during the guilt phase of the trial, we AFFIRM the district court's denial of Stanley's habeas petition as to the first two grounds. However, because Stanley's allegations raise serious questions and a colorable claim regarding the adequacy of counsel during the penalty phase of the trial, we REVERSE and REMAND that portion of the decision to allow the district court to conduct an evidentiary hearing. We simply cannot in good conscience continue to send men to their deaths without ensuring that their' cases were not prejudiced by inadequate legal representation at any phase of the proceedings.

I.BACKGROUND
A. Stanley's Interrogation and Confession

Stanley contacted the police on the evening of June 19, 1986, to report his wife and five-year-old daughter missing. See State v. Stanley, 167 Ariz. 519, 809 P.2d 944, 946 (1991). The next afternoon, with the consent of both Stanley and his father officers searched the pair's auto repair shop, where Stanley's wife's sisters had reported discovering bloodstains and a spent shell casing in the wife's car. See id. at 946-47. While officers searched the shop, Stanley was asked and agreed to accompany Officer Saravo (an investigator) to his office at the county building to be interviewed regarding the disappearance of his wife and daughter. See id. at 947. Stanley was specifically informed that he was not under arrest and was not a suspect.

Saravo initially approached the interview as a follow-up to a missing persons report, asking questions to reconstruct the family's activities on the night of the disappearance. He also asked questions to determine where they might have gone. However, there were indications early in the hour-long interview that Saravo suspected Stanley's involvement.

Approximately fifteen minutes into the interview, Saravo began to ask Stanley questions related to the officers' discovery of blood in his wife's car. Approximately twenty minutes into the interview, Saravo turned to questions directed toward Stanley's use of his gun in connection with the car. Approximately twenty-five minutes into the interview, Saravo increased the pressure, but still did not reveal his suspicions. ("Can you tell me any reason why there would be blood on the outside of your vehicle?"); ("Can you tell me any reason why there would be blood on the inside of your vehicle?"); ("I want to tell you right now that there is blood on the vehicle.").

About thirty minutes into the interview, after advising Stanley of his Miranda rights, Saravo sought permission to search Stanley's apartment, to which Stanley consented. Before reading the Miranda warnings, Saravo assured Stanley, "You weren't under arrest and you're not under arrest at this time..." He explained that the rights were being read "just because we're going to ask you for a consent to search at this point." After reading Stanley his rights, Saravo again stated, "you're not under arrest at this time..."

Stanley granted consent to the search approximately thirty-six minutes into the interview and was allowed to leave to get a drink. When Stanley returned, Saravo began to point out the holes he saw in the story Stanley had related. Finally, approximately forty-five minutes into the interview, Saravo confronted Stanley withhis suspicion: "Do you really think somebody actually surprised you (sic) wife at the shop, took your gun and put her in that car and took her out and killed her and brought the car back?" After Stanley answered in the affirmative, Saravo replied, "I don't think that could have happened, " and then continued, "I think if that happened, if that in fact is what happened, that person almost had to have been you." When Saravo then asked Stanley who the perpetrator would have "had to have been, " Stanley answered, "[m]e." At that point Stanley said, "I think I better talk to a lawyer. I don't want to say any more." After confirming that Stanley did not wish to answer questions, Saravo indicated that he was concluding the interview and stopped the recording. He did not tell Stanley that he was free to leave.

After an unknown period of time elapsed, Saravo turned the tape recorder back on. He purported to recognize Stanley's invocation of his rights ("You have requested to talk to an attorney, you don't have to talk to me."), then confronted Stanley with additional evidence and resumed questioning. ("It appears now that very strongly that your wife has met some foul play, understand?"); ("There's nothing more that you would like to do to locate your wife and child?"). At least ten minutes passed with Stanley sobbing and Saravo coming and going from the room before the tape ran out. Subsequently, Stanley apparently confessed to the killing.

Our colleague in dissent assiduously catalogs every heinous detail of this gruesome crime. See Dissenting Opinion, pp. 629-30. There is no doubt that the facts of this case are repulsive. But that is true for every case where the death penalty is imposed. If the resolution of this case rested on the relative heinousness of the offense, we would have no quarrel with our colleague in dissent. However, our charge is to look at the merits of the legal issues raised rather than to focus on the degree to which we are repulsed by the inevitably grisly details of the case. Indeed, our precedent leaves no doubt that the heinous nature of the underlying offense should not be the determining factor. See Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir.2004) (holding that "counsel's failure to present mitigating evidence can be prejudicial even when the defendant's actions are egregious"); see also Douglas r. Woodford, 316 F.3d 1079, 1091 (9th Cir. 2003) ("The gruesome nature of the killingdid not necessarily mean the death penalty was unavoidable.") (citations omitted).

B. Admission of the Confession

In denying Stanley's contention that his confession was wrongfully admitted into evidence, "[t]he trial court determined there was neither a Miranda nor an Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] violation because Stanley was not in custody at the time of Saravo's questioning." Stanley, 809 P.2d at 948. On direct appeal, the Arizona Supreme Court agreed, stating that, "[w]hether one is in custody is determined objectively: Under the circumstances, would a reasonable person feel deprived of his freedom of action? Factors indicative of custody include: (1) whether the objective indicia of arrest are present; (2) the site of the interrogation; (3) the length and form of the investigation; and, (4) whether the investigation had focused on the accused." Id. (citations omitted). Applying these factors, the court concluded that Stanley was not in custody and, therefore, Miranda, warnings were not required. See id. On that basis, the court rejected Stanley's argument that, under Edwards, questioning should have ceased when he attempted to invoke his Miranda rights. See id. at 948^19.

C. Dissociative Reaction and Insanity

Following his confession, Stanley was arrested. The next day he was seen by Dr. Hammitt, the jail psychiatrist. Among other things, Stanley told Dr. Hammitt that at the time of the killing "he experienced the sensation that he was watching like he wasn't even there." "He told [Dr Hammittl that he flew off the wall and shot them."

The dissent represents that Dr. Hammitt "concluded that Stanley was... not even remorseful." Dissenting...

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