Towery v. Ryan

• Decision Date: 27 February 2012
• Docket Number: No. 12–15071.,12–15071.
• Citation: 2012 Daily Journal D.A.R. 2641,673 F.3d 933,12 Cal. Daily Op. Serv. 2345
• Parties: Robert Charles TOWERY, Petitioner–Appellant, v. Charles RYAN; Charles Goldsmith, Warden, Arizona State Prison Central Comples–Florence; Terry L. Goddard, Arizona State Attorney General; Dora B. Schriro, Director of the Arizona Department of Corrections, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2345

2012 Daily Journal D.A.R. 2641

673 F.3d 933

Robert Charles TOWERY, Petitioner–Appellant,

v.Charles RYAN; Charles Goldsmith, Warden, Arizona State Prison Central Comples–Florence; Terry L. Goddard, Arizona State Attorney General; Dora B. Schriro, Director of the Arizona Department of Corrections, Respondents–Appellees.

No. 12–15071.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 27, 2012.Filed Feb. 27, 2012.

Jon M. Sands, Federal Public Defender; Therese M. Day (argued), Dale A. Baich and Kelly L. Schneider, Assistant Federal Public Defenders, Phoenix, AZ, for petitioner-appellant.

Thomas C. Horne, Attorney General; Kent E. Cattani, Division Chief Counsel, Criminal Appeals/Capital Litigation Division; Jeffrey A. Zick, Section Chief Counsel; Jon G. Anderson (argued), Assistant Attorney General, Capital Litigation Division, Phoenix, AZ, for respondents-appellees.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.C. No. 2:03–cv–00826–ROS.Before: MARY M. SCHROEDER, RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges.

OPINION

PER CURIAM:

Robert Towery was convicted of murder and sentenced to death in 1992. After pursuing direct review and seeking postconviction relief in state court, he filed a pro se habeas petition in federal district court. The district court appointed counsel, who filed an amended federal habeas petition raising eight substantive claims of constitutional error as well as numerous distinct allegations of counsel ineffectiveness. Counsel did not, however, include Towery's fully exhausted Eddings–Tennard claim in the amended petition. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The district court denied the petition, and we affirmed. See Towery v. Schriro (Towery II), 641 F.3d 300 (9th Cir.2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 159, 181 L.Ed.2d 74 (2011).

Towery subsequently filed a motion for relief from judgment seeking the opportunity to litigate the Eddings–Tennard issue as a new claim. He argued that he should be permitted to pursue that claim, notwithstanding the statutory bar on second or successive habeas petitions, because his counsel had abandoned him by failing to present the claim in his amended petition. He proposed a new rule under which abandonment by counsel would serve as an equitable exception to the bar on second or successive petitions. The district court denied the motion.

We affirm. We need not decide whether abandonment by counsel can serve as an exception to the bar on second or successive petitions because, like the district court, we conclude that Towery was not abandoned. Counsel did not engage in “egregious” professional misconduct, Holland v. Florida, –––U.S. ––––, 130 S.Ct. 2549, 2563–64, 177 L.Ed.2d 130 (2010), or leave Towery “without any functioning attorney of record,” Maples v. Thomas, –––U.S. ––––, 132 S.Ct. 912, 927, 181 L.Ed.2d 807 (2012). Accordingly, we need not decide whether Towery's attorney was negligent in failing to raise a colorable Eddings–Tennard claim. We hold that the district court did not abuse its discretion by denying Towery's motion.

I. Background

Towery was convicted of first-degree murder, armed robbery, first-degree burglary, kidnapping, theft and attempted theft in 1992. See Towery II, 641 F.3d at 303. He was sentenced to death. See id. His execution is scheduled to take place on March 8, 2012.

A. Sentencing Court

At sentencing, Towery presented evidence, through the testimony of his sisters, that his mother was physically and emotionally abusive when he was a child. The sentencing court concluded that Towery's difficult childhood was not a mitigating circumstance because Towery could not show that it had an effect on his behavior that was beyond his control or rose to the level of a mental impairment:

I have heard and considered the evidence concerning the defendant's family background, the manner in which Mr. Towery was raised by his mother. And certainly no one would wish such a condition upon anyone. However, a difficult family background, in and of itself, is not a mitigating circumstance. If it were, nearly every defendant could point to some circumstance in his or her background that would call for some mitigation.

A difficult family background is a relevant mitigating circumstance, if a defendant can show that something in that background had an [e]ffect or impact on his behavior that was beyond the defendant's control. I do not believe there was anything in this case that was beyond the defendant's control.

Although he might not have received the interplay and nurturing that he would have liked to have had and needed from his mother, I have to look at his two siblings, who evidence nothing concerning drug use, and have managed to grow up being relatively stable people in the community, and contributing members of society.

Therefore, the fact that the defendant had a dysfunctional relationship with his mother, and being subject to emotional abuse, is not a mitigating circumstance, because it amounts to a mere character or personal—personality disorder, and does not rise to the level of a mental impairment.

The sentencing court then weighed the mitigating circumstances that it found to exist against the aggravating circumstances and imposed a death sentence:

The mitigating circumstances that I have found to exist that merit weight and consideration are the impairment of the defendant's capacity to conform his conduct to the law due to drug use, which I have given little weight, and the sentence given to his co-defendant, to which I have given great weight.

I have also considered the defendant's family background, the manner in which he was raised. I have considered Mr. Towery's character, propensities, record, and circumstances of the offense which would constitute mitigation.

I have considered whether or not this case presents circumstances that are so shocking or repugnant, that the murder stands out above the norm of first degree murder, and whether the background of the defendant sets him apart from the usual murderer.

In considering the existence of the three aggravating circumstances, and balancing them against the mitigating circumstances, I find the mitigating circumstances which do exist are not significantly substantial to call for leniency.

It is unclear from the transcript whether the sentencing court ultimately considered Towery's difficult childhood in imposing sentence. On the one hand, the court expressly found that Towery's childhood was not a mitigating circumstance, and, consistent with that determination, the court did not mention Towery's childhood when it listed the mitigating circumstances it found to exist. On the other hand, the court said that it “also considered the defendant's family background, the manner in which he was raised” and considered “whether the background of the defendant set[ ] him apart from the usual murderer,” suggesting that the court may have included this evidence in the sentencing calculus after all.

B. Arizona Supreme Court

On direct appeal, Towery argued that the sentencing court violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), when it “determined that the defendant had to show that his background had an [e]ffect or impact on his behavior, and since he did not, rejected that evidence as a mitigating factor.” He argued that the sentencing court violated Eddings' fundamental principle that “there need not be a nexus between mitigating evidence such as child abuse with the offense.”

The Arizona Supreme Court rejected Towery's argument. See State v. Towery (Towery I), 186 Ariz.168, 920 P.2d 290, 310–11 (1996). The court concluded that the sentencing court had properly considered the absence of a causal nexus between Towery's difficult childhood and the crime only as a means of weighing the evidence, not as a means of discounting it as a matter of law:

We independently weigh the mitigating evidence against the aggravating circumstances to determine whether leniency is called for....

The trial judge considered evidence of Defendant's abusive family background and did not find mitigating value in it. Citing a line of Supreme Court cases requiring courts to consider family history for independent mitigating weight, Defendant calls the judge's finding unconstitutional. Although the judge rejected the evidence as a mitigating factor because he failed to establish a nexus between his family background and his crime, Defendant argues that the judge violated the law.

Defendant misconstrues the Supreme Court cases culminating in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). They hold only that “a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as a basis for a sentence less than death.” Id. at 318, 109 S.Ct. 2934. Having considered family background during the penalty phase, the sentencer must give the evidence such weight that the sentence reflects a “reasoned moral response” to the evidence. Id. at 319, 109 S.Ct. 2934. The sentencer therefore must consider the defendant's upbringing if proffered but is not required to give it significant mitigating weight. How much weight should be given proffered mitigating factors is a matter within the sound discretion of the sentencing judge.

We have held that a difficult family background is not always entitled to great weight as a mitigating circumstance. State v. Wallace, 160 Ariz. 424, 426–27, 773 P.2d...