Clabourne v. Lewis, s. 94-15587
| Citation | 64 F.3d 1373 |
| Decision Date | 08 September 1995 |
| Docket Number | 94-15699,Nos. 94-15587,s. 94-15587 |
| Parties | 95 Cal. Daily Op. Serv. 7114, 95 Daily Journal D.A.R. 12,163 Scott D. CLABOURNE, Petitioner-Appellant, v. Samuel A. LEWIS; Grant Wood, Respondents-Appellees. Scott D. CLABOURNE, Petitioner-Cross-Appellee, v. Samuel A. LEWIS; Grant Wood, Respondents-Cross-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Carla G. Ryan and Michael J. Bloom, Tucson, AZ, for petitioner-appellant-cross-appellee.
Joseph T. Maziarz, Assistant Attorney General, Phoenix, AZ, for respondents-appellees-cross-appellants.
Appeal from the United States District Court for the District of Arizona.
Before: REINHARDT, KOZINSKI and RYMER, Circuit Judges.
On the evening of September 18, 1980, Laura Webster left work with some friends and went to the Green Dolphin, a Tucson bar frequented by students from the University of Arizona. Sometime around midnight, she left the bar with three strange men. The next morning, Webster's naked body was found lying in the dry bed of the Santa Cruz River. Wrapped in a bloody sheet, Webster had been strangled with a blue and white bandana, then stabbed to death. She had also been severely beaten, and traces of semen were found in her mouth, rectum and vagina.
The Tucson police got their first break in the case almost a year later when a woman named Shirley Martin reported that her former boyfriend, Scott Clabourne, had made several statements inculpating himself in a homicide. Clabourne was in custody on an unrelated burglary charge at the Pima County Jail, where he was interviewed by Detectives Bustamante and Reuter of the Tucson Police Department.
Clabourne gave a detailed, taped confession to the rape and murder of Laura Webster. According to Clabourne, he and two other men, Larry Langston and a man Clabourne called "Bob" (later identified as Edward Carrico), went to the Green Dolphin to "get some women." Langston convinced Webster to leave the bar with them by promising to take her to a cocaine party Clabourne was purportedly hosting; instead the Three days after Detectives Bustamante and Reuter interviewed Clabourne, a criminal information was filed charging Clabourne with first-degree murder, kidnapping and sexual assault. Lamar Couser was appointed as Clabourne's counsel. Couser brought a pretrial motion to suppress the confession, which was denied. He also moved for a hearing to determine Clabourne's competency to stand trial, but the state called two psychiatrists to testify that Clabourne was not so mentally impaired that he would be unable to assist in his own defense. The court found Clabourne competent.
three men took Webster to a house Langston had been taking care of for a friend. The three men forced Webster to remove all her clothes and to serve them drinks. They then raped her repeatedly over the course of several hours. Though a much larger man than Langston, Clabourne claims to have been afraid of Langston; he also claims to have been intoxicated. Langston was the instigator, and he "made" the others take part. At the end of the night, Langston instructed Clabourne to kill Webster, and Clabourne obeyed: He strangled Webster with a bandana he carried, and then stabbed her with a knife.
Clabourne was tried alone. 1 The prosecution relied primarily on Clabourne's taped confession, but also introduced evidence of other incriminating statements Clabourne made after the murder. Shirley Martin testified that Clabourne had admitted committing the crime on several occasions (although his accounts were not consistent). Barbara Bailon, who worked at the Salvation Army halfway house, testified that Clabourne had confessed to killing a girl. Scott Simmons, a Pima County Jail Corrections officer, testified that Clabourne had told him about the crime before giving his taped confession. And a second corrections officer, Dale Stevenson, testified that he overheard Clabourne tell another inmate,
The state also introduced testimony to corroborate Clabourne's confession. Shirley Martin testified that the blue and white bandana found tied around Webster's neck was similar to one that belonged to Clabourne. The owner of the house where the rape and murder occurred identified the sheet in which Laura Webster's body had been found and testified that the mattress on one of her beds had been turned over to conceal large stains. And Webster's friend Rick Diaz identified Clabourne as one of the men who had left the Green Dolphin with Webster.
Couser raised an insanity defense. However, he called only one witness: Dr. Sanford Berlin, a psychiatrist who had treated Clabourne several years previously at the University of Arizona Medical Center. 2 Couser did not contact Dr. Berlin until the week of trial. Perhaps for that reason, Dr. Berlin was not prepared to testify as to Clabourne's mental state at the time of the murder; he could only surmise that Clabourne might be suffering from a mild form of schizophrenia. The state put two psychiatrists on the stand to testify that Clabourne understood the nature of his actions and the difference between right and wrong, and that he was legally sane at the time of the murders. Couser cross-examined the state's experts, but put on no other witnesses.
Clabourne was convicted on all counts, 3 and a sentencing hearing was held before Judge Richard N. Roylston, who had also presided at trial. Judge Roylston found that the offense was committed in an especially After duly exhausting his state court remedies, Clabourne filed this petition for a writ of habeas corpus raising 104 distinct challenges to his conviction and sentence. The district court catalogued Clabourne's claims to determine which ones had been properly preserved for review, 7 and held an evidentiary hearing on Clabourne's ineffective assistance of counsel claim. The district court concluded that Couser's performance had been deficient in several respects: Among other things, Couser failed to interview key witnesses before trial (including his own expert), neglected to supply the state psychiatrists with background material on Clabourne's history of mental illness, and failed to put on any evidence in mitigation at the sentencing hearing. Largely because these errors did not affect the admissibility of Clabourne's confession, the district court held that Couser's deficient performance did not prejudice Clabourne at trial and therefore did not constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
heinous, cruel or depraved manner, an aggravating circumstance under Ariz.Rev.Stat.Ann. Sec. 13-703(F)(6). 4 Couser argued that Clabourne should not be sentenced to death because he was mentally impaired at the time of the offense, but he put on no evidence at the sentencing hearing, relying on the evidence presented at the guilt phase of the trial. Judge Roylston concluded that Clabourne's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired but was not significantly impaired." Judge Roylston did not consider this evidence sufficiently compelling to be a mitigating circumstance under Ariz.Rev.Stat.Ann. Sec. 13-703(G)(1), 5 and in any event found that whatever mitigating effect Clabourne's impairment might have had was outweighed by the cruel and depraved manner in which he had committed the offense. 6 Judge Roylston sentenced Clabourne to death
The district court, however, found that the sentencing decision had been a close one and concluded that the death sentence might have been averted had Couser presented an effective case for mitigation. The district court therefore found both deficient performance and the resulting prejudice necessary to find ineffective assistance of counsel at the penalty phase. Clabourne appeals the denial of his petition with respect to the conviction; the state cross-appeals the district court's grant of his petition with respect to the penalty phase.
Clabourne's principal contention on appeal, as in district court, is that he received ineffective assistance of counsel at the guilt and the sentencing phases of his trial. In order to obtain relief on this claim, Clabourne must overcome a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," and establish that Couser's performance was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Clabourne thus must show that Couser "made errors that a reasonably competent attorney acting as a diligent and Clabourne must also establish prejudice: He must demonstrate a Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (). The right to effective assistance of counsel applies with equal force at the penalty phase of a bifurcated capital trial. See, e.g., Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir.1994); Mak v. Blodgett, 970 F.2d 614, 617-19 (9th Cir.1992). In this context, prejudice means a reasonable probability that but for counsel's errors, a different sentence would have been imposed. Mak, 970 F.2d at 619.
conscientious advocate would not have made." Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985).
With these principles in mind, we turn to the substance of Clabourne's...
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