679 F.3d 780 (9th Cir. 2012), 08-99016, James v. Ryan

Docket Nº:08-99016.
Citation:679 F.3d 780
Opinion Judge:W. FLETCHER, Circuit Judge:
Party Name:Steven Craig JAMES, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee.
Attorney:Gary T. Lowenthal, Santa Fe, NM, Thomas James Phalen, Phoenix, AZ, for the petitioner. Kent Ernest Cattani, Arizona Attorney General's Office, Phoenix, AZ, Amy Pignatella Cain, Arizona Attorney General's Office, Tucson, AZ, for the respondent.
Judge Panel:Before: WILLIAM A. FLETCHER, MARSHA S. BERZON, and MILAN D. SMITH, JR., Circuit Judges.
Case Date:February 29, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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679 F.3d 780 (9th Cir. 2012)

Steven Craig JAMES, Petitioner-Appellant,


Charles L. RYAN, Respondent-Appellee.

No. 08-99016.

United States Court of Appeals, Ninth Circuit.

February 29, 2012

Argued and Submitted March 17, 2011.

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Gary T. Lowenthal, Santa Fe, NM, Thomas James Phalen, Phoenix, AZ, for the petitioner.

Kent Ernest Cattani, Arizona Attorney General's Office, Phoenix, AZ, Amy Pignatella Cain, Arizona Attorney General's Office, Tucson, AZ, for the respondent.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 2:00CV-01118-NVW.



W. FLETCHER, Circuit Judge:

This court's Opinion filed October 12, 2011, and reported at 659 F.3d 855 (9th Cir.2011), is withdrawn, and is replaced by the attached Opinion.

With the filing of the new Opinion, the panel votes unanimously to deny the petition for 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 requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc, filed November 23, 2011, are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.


Death-sentenced prisoner Steven James appeals the district court's denial of his petition for a writ of habeas corpus. James, Lawrence Libberton, and Martin Norton were convicted in separate proceedings in Arizona state court of crimes connected to the 1981 murder of Juan Maya. James, Libberton, and Norton severely beat Maya, drove him to an isolated desert area, killed him by shooting him and striking him with rocks, and threw his body down an abandoned mine shaft. Norton, who was 14 years old at the time of the murder, agreed to testify against James and Libberton and to plead guilty in juvenile court to first-degree murder, kidnapping, armed robbery, and credit card fraud. In exchange for his testimony and guilty plea, Norton was committed to juvenile detention until he turned 18, with no subsequent incarceration. Libberton was convicted of first-degree murder, aggravated kidnapping, robbery, and theft, and sentenced to death. State v. Libberton, 141 Ariz. 132, 685 P.2d 1284, 1286 (1984). A panel of this court granted Libberton

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habeas relief with respect to his death sentence. Libberton v. Ryan, 583 F.3d 1147, 1151-52 (9th Cir.2009), cert. denied, __ U.S. __, 130 S.Ct. 3412, 177 L.Ed.2d 349 (2010). James was convicted of first-degree murder and kidnapping, and sentenced to death. State v. James, 141 Ariz. 141, 685 P.2d 1293, 1296 (1984).

James raises three grounds for relief. First, he claims that the state failed to disclose an oral plea agreement with Norton, 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, he claims that the state failed to correct Norton's false testimony denying the existence of this agreement, in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Third, he claims that his trial counsel provided ineffective assistance at the penalty phase, in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We affirm the denial of relief with respect to James's guilt-phase claims based on Brady , Giglio, and Napue. However, we reverse with respect to James's penalty-phase claim of ineffective assistance of counsel, which was not decided on the merits in state court. We conclude that counsel's complete failure to investigate and present mitigating evidence of James's troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced James because it prevented the sentencing judge from learning that James had " the kind of troubled history we have declared relevant to assessing a defendant's moral culpability." Wiggins v. Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also, e.g., Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (" [E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring))). We therefore grant the writ with respect to James's death sentence.

I. Factual and Procedural Background

A. Factual Background

1. The Investigation

On November 17, 1981, James, Libberton, Norton, and Daniel McIntosh were arrested at a bank in Phoenix after Libberton attempted to obtain a cash advance on a credit card belonging to Maya. Libberton was arrested either inside or just outside the bank. James, Norton, and McIntosh were arrested in the bank's parking lot where they were waiting in a 1975 Ford Thunderbird registered to Maya. Libberton was booked on a forgery charge, but the others were interviewed and released. Two days later, after Maya's father filed a missing person report on his son— and after receiving a tip from McIntosh, who had heard James and Libberton bragging about killing Maya— police located and rearrested James and Norton.

James gave a statement to Detective Russell Davis in which he recounted that Norton, followed by Maya, had burst through the door of James's trailer on the night of November 16, claiming that Maya " was following him and trying to rape him." Norton retrieved a revolver from James's trailer and chased Maya outside into the trailer park. After a short time,

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Norton returned with Maya, sat him down on James's couch, and " slapped [Maya] around, trying to get him to tell where his money was at." James stated that Libberton and Norton then walked Maya outside to his own car. James stated that he took the wheel and the group left in Maya's car. At that point in the interview, James requested counsel, but shortly thereafter volunteered to show police Maya's body. See Libberton, 583 F.3d at 1152; James, 685 P.2d at 1296.

With James giving directions, Detective Davis and Sergeant Michael Midkiff drove about two hours west of Phoenix to property owned by James's adoptive parents in the desert outside Salome, Arizona. James led Davis and Midkiff to an abandoned mine shaft several hundred yards from the entrance to the property. Maya's body lay at the bottom, covered with railroad ties and a rusted pipe. Tire tracks that appeared to match the treads on the tires of Maya's Thunderbird ran from the entrance of the property to the base of the incline where the shaft was located, and a shoeprint that appeared to match the tread on Maya's shoes was found on the incline leading up to the shaft. Two drag marks, about as far apart as the distance between a person's feet would be, ran from a bloodstained area of terrain at the top of the incline to the shaft's entrance. Blood and hair consistent with Maya's were found matted on several rocks scattered around the entrance to the mine; on the sides of the shaft; and on the railroad ties that lay across the opening of the shaft. The railroad ties and the rusted pipe on Maya's body were not blood-stained, suggesting that they had been thrown down onto Maya. An autopsy revealed that Maya suffered lacerations to both sides of his scalp, a complicated skull fracture, and bruises and abrasions to his forehead, chin, nose, cheek, and ear. Maya died of head injuries that included a hemorrhage and bruises to the surface of his brain, which were consistent with blows from rocks or a heavy board.

2. Norton's Statements

Norton gave several statements. Each statement inculpated James, Libberton, and himself in progressively greater detail. Because James's Brady , Giglio, and Napue claims turn on Norton's statements, and the differences among them, we recount them at some length. See generally Libberton, 583 F.3d at 1152-56. During his first interview on November 19, Norton told Detective Davis different versions of what happened to Maya. Norton first said that he was hitchhiking when Maya picked him up at around 11:30 p.m. on November 16. Norton said that Maya " started talking about gay power," so Norton asked to be let out of Maya's car. Maya agreed but kept following Norton until Norton managed to evade Maya near a local elementary school. Norton then acknowledged that he had hit Maya. Norton said that Maya " tried to get in my pants. He puts his arm around me. He tried to kiss me. I hit him and I hit him." Norton told Davis that he hit Maya in the throat and the solar plexus because " I know where to hit people." Norton stated that he broke free and escaped to James's trailer, where he told James and Libberton that Maya had attacked him. James and Libberton went looking for Maya but could not find him.

Norton's story then changed. In this version, Norton rebuffed Maya's sexual advances and got out of Maya's car, but now Maya followed Norton inside James's trailer. Norton told James, " [T]his is the guy," whereupon James kicked Maya in the leg. Maya fled the trailer, but Norton, James, and Libberton pursued Maya and soon " had him surrounded." Norton punched Maya in the stomach. The group

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brought Maya back into the trailer, where James and Libberton took turns beating Maya " in the face, the stomach, and...

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