Henry v. Ryan

• Decision Date: 19 June 2013
• Docket Number: No. 09–99007.,09–99007.
• Citation: 720 F.3d 1073
• Parties: Graham S. HENRY, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

720 F.3d 1073

Graham S. HENRY, Petitioner–Appellant,

v.Charles L. RYAN, Respondent–Appellee.

No. 09–99007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 18, 2012.

Filed June 19, 2013.

Jon M. Sands, Federal Public Defender, Robin C. Konrad (argued) and Amy E.B. Kapp, Assistant Federal Public Defenders, Phoenix, AZ, for Petitioner–Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, and Jonathan Bass (argued), Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Tucson, AZ, for Respondents–Appellees.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:02–CV–00656–SRB.

Before: RAYMOND C. FISHER, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Graham Saunders Henry was convicted by a jury of first-degree murder, kidnapping, robbery and theft. The Arizona trial court imposed a sentence of death in 1988 and on resentencing in 1995. After pursuing a direct appeal and state postconviction relief (PCR), Henry filed a habeas petition in federal district court. The district court denied the petition, and Henry appeals.

Henry raises four claims on appeal: (1) that the state's use of perjured testimony and its suppression of material evidence violated his constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); (2) that he was denied a fair trial because jurors engaged in misconduct by conducting an out-of-court experiment; (3) that the state court employed an unconstitutional causal nexus test when considering mitigating evidence offered at sentencing; and (4) that his resentencing counsel was constitutionally ineffective.¹ We hold that Henry's claims are either procedurally defaulted or without merit and therefore affirm the district court's denial of habeas relief.

Background

Henry and his acquaintance, Vernon Foote, embarked on a road trip from California to Arizona and consumed large quantities of alcohol along the way. Their vehicle broke down outside Las Vegas, and they were towed to the Sportsman Lounge in Henderson, Nevada, where they continued to consume alcohol.

Henry testified that at the Sportsman Lounge, Foote informed him that an older man—Roy Estes—agreed to transport them to Arizona in Estes' truck in exchange for $50. When Estes, Henry and Foote left Henderson in Estes' truck, Henry contends he was too tired to drive, so he “took a big chug-a-lug of whiskey,” crawled in the camper of Estes' truck and fell fast asleep while Foote drove the vehicle. Henry woke up about two hours later when Foote made a hard turn on a dirt road and, from the truck's camper, Henry heard Foote and Estes arguing in the truck's cab. From the truck's camper, Henry saw Foote hit Estes, stop the truck, drag Estes out of the truck over a berm to a bank near bushes and start punching Estes. Henry crawled out of the camper and saw Foote pull a knife out of Estes. Henry further testified that he ran up to the bank to help Estes and dragged him away from Foote and towards the shade, where Estes died.

The state, however, offered a different narrative at trial. The state presented evidence that Henry drove the vehicle to the crime scene. The state also presented evidence that Henry and Foote together dragged Estes up the berm to a bush, where Estes was stabbed before being dragged by Henry to a larger bush, where Estes' body was hidden from the roadway. See State v. Henry, 176 Ariz. 569, 574–75, 863 P.2d 861 (Ariz.1993) (recounting Henry's and the state's conflicting accounts of the events).

Henry testified that after he realized Estes was dead, he started shouting at Foote and got in the truck to leave. Foote also jumped in the truck, and they pulled away from the scene. Shortly thereafter, Henry was pulled over for driving down the wrong side of a divided highway. Foote and Henry quickly made an agreement that if Foote did not tell the police Henry's real name, Henry would not to tell the police that Foote had killed Estes.

Henry gave the police his fishing license with the name “Harold S. Williams” and was arrested for driving while intoxicated, blowing a .182 on a Breathalyzer.² A few days later, while Henry was still detained for drunk driving, a detective addressed Henry by his real name. Henry then told the detective that Foote had killed Estes and agreed to lead officers to the crime scene.

Henry and Foote were tried separately. The jury convicted Henry of first-degree murder, kidnapping, robbery and theft. Henry was sentenced to death for the murder. Following a direct appeal and three PCR petitions in state court, Henry filed this federal habeas petition. The district court concluded that Henry was not entitled to evidentiary development or habeas relief.

Standard of Review

We review the district court's denial of Henry's habeas petition de novo and its findings of fact for clear error. See Carrera v. Ayers, 699 F.3d 1104, 1106 (9th Cir.2012) (en banc). We review the denial of a request for an evidentiary hearing for an abuse of discretion. See Wood v. Ryan, 693 F.3d 1104, 1112 (9th Cir.2012). Dismissals based on procedural default are reviewed de novo. See Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir.2010).

Because Henry filed his federal habeas petition after April 24, 1996, he must not only prove a violation of his constitutional rights but also satisfy the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) with respect to any claim adjudicated on the merits in state court. See Fenenbock v. Dir. of Corr. for Cal., 692 F.3d 910, 916 (9th Cir.2012). Under AEDPA, a court may not grant habeas relief with respect to any such claim unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We review the last reasoned state court decision addressing the claim in question. See Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir.2010).

Discussion

I. BRADY/NAPUE CLAIMS

At trial, the prosecution relied on crime scene photographs taken by the state and on footprint evidence (from testimony interpreting the state's photographs) to support its theory that Henry was an active participant in Estes' murder rather than a mere bystander to the crime. The state presented two witnesses who testified about the crime scene photographs: Detective Patterson, who investigated the crime scene and testified that he took all of the crime scene photographs, and Bernell Lawrence, who was qualified as an expert tracker and testified about the footprints shown in the photographs.

Disputing the prosecution's evidence, Henry testified that he was asleep in the truck camper and awoke only when he heard Foote and Estes fighting. Henry said that Foote alone dragged Estes over a sand berm to a bush and that he ran to the bush to find that Foote had stabbed Estes, at which time Henry dragged Estes away from Foote and into the shade. At trial the defense relied on the crime scene photographs to support Henry's innocence, cautioning the jury to look at “every picture” admitted into evidence and to “look very carefully at the[ ] prints.”

In his federal habeas petition, Henry asserted three due process violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959): (1) that the state withheld notes created by his codefendant, Foote, which included a drawing of the crime scene; (2) that the state altered and suppressed photos of the crime scene; and (3) that the state knowingly presented false testimony during trial. The first two claims assert violations of Brady, which “hold[s] that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194. The third claim asserts a violation of Napue, which holds that a conviction violates a defendant's due process rights when it is obtained by the state's knowing presentation of false testimony. 360 U.S. at 269, 79 S.Ct. 1173.

Henry did not present these due process claims to the state court. The district court denied the first claim on the merits and the second and third claims as procedurally barred and on the merits. The court issued a certificate of appealability on these issues. We address each claim in turn.

A. Codefendant Foote's Notes

Henry states that when he requested records from the Mohave County Sheriff's Office as part of his federal habeas proceedings, he received notes Foote created, which include a drawing of the crime scene, that the state withheld during trial. Henry argues that the drawing corroborates his account of the crime because in the drawing, Foote's footprints appear on either side of Estes' tracks, while Henry's footprints extend from behind the vehicle to the bush where Estes was stabbed. Henry contends that the state's suppression of Foote's notes violated his due process rights under Brady.

1. Procedural Default

The parties disagree about whether the procedural default rule bars this claim. We need not reach this issue, however, because the merits of the claim have been fully briefed, and the district court assumed that it was not barred and reached the merits of the claim. We therefore exercise our discretion to deny the claim on the merits as permitted by 28 U.S.C. § 2254(b)(2). See Runningeagle v. Ryan, 686 F.3d 758, 777 n. 10 (9th Cir.2012).

2. Merits

To prove a Brady violation, Henry must show (1) that the evidence at...