Gulbrandson v. Ryan

• Decision Date: 28 October 2013
• Docket Number: 09–72779.,Nos. 07–99012,s. 07–99012
• Parties: David GULBRANDSON, Petitioner–Appellant, v. Charles L. RYAN, Arizona Department of Corrections, Respondent–Appellee. David Gulbrandson, Petitioner, v. Charles L. Ryan, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

738 F.3d 976

David GULBRANDSON, Petitioner–Appellant,

v.Charles L. RYAN, Arizona Department of Corrections, Respondent–Appellee.

David Gulbrandson, Petitioner,

v.Charles L. Ryan, Respondent.

Nos. 07–99012, 09–72779.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 14, 2012.

Filed March 18, 2013.

Amended Oct. 28, 2013.

Timothy M. Gabrielsen (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender, Federal Public Defender's Office, Tucson, AZ; Stephen E. Eberhardt, Tinley Park, IL, for Petitioner–Appellant.

Susanne Bartlett Blomo (argued), Assistant Attorney General; Thomas C. Horne, Attorney General; Jeffrey A. Zick, Chief Counsel, Arizona Attorney General's Office, Capital Litigation Section, Phoenix, AZ, for Respondents–Appellees.

Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, Senior District Judge, Presiding. D.C. No. CV–98–02024–PHX–SMM.

Before: D.W. NELSON, JOHNNIE B. RAWLINSON, and SANDRA S. IKUTA, Circuit Judges.

ORDER

The opinion and dissent filed on March 18, 2013, are amended. The superseding amended opinion and dissent will be filed concurrently with this order.

With these amendments, a majority of the panel has voted to deny appellant's petition for panel rehearing. Judge Nelson would grant the petition. Judge Rawlinson and Judge Ikuta voted to deny the petition for rehearing en banc. Judge Nelson recommended granting it. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

IKUTA, Circuit Judge:

David Gulbrandson is an Arizona capital prisoner who appeals from the denial of his first habeas petition and also seeks authorization to file a second or successive habeas petition. We affirm the district court's denial of Gulbrandson's first petition and deny his request to file a second or successive petition.

I

A

Gulbrandson and Irene Katuran were partners in a Phoenix-based photography business called Memory Makers. For about a year, during 1990, they were also romantically involved. This relationship ended in January 1991, when Irene began seeing another man. When their personal relationship deteriorated, the business relationship soured as well, and Gulbrandson began suspecting that Irene was trying to buy him out of Memory Makers. State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579, 586 (1995).

This tension reached a high point on Valentine's Day 1991. Gulbrandson became intoxicated and argued with Irene in the presence of two friends, Sally and Charles Maio. Gulbrandson then tried to strangle Irene and had to be pulled off by Charles Maio. Later that night, Gulbrandson told the Maios, “I'm going to kill her [Irene]. I'm going to kill the business. I'm going to kill everything.”

Around one month later on the morning of March 11, 1991, Irene was found dead in her house. Gulbrandson had come over the night before and the two had another fight about the business. According to Gulbrandson, at some point during the argument Irene threw a pair of scissors at him, after which he snapped. The Arizona Supreme Court described the resulting crime as follows:

Irene was killed brutally. The police found her face down dressed in only a pair of panties with her legs bent up behind her at the knee and her ankles tied together by an electrical cord attached to a curling iron. Her right wrist was bound with an electrical cord attached to a hair dryer. Her bedroom was covered in what appeared to be blood. From the bedroom to the bathroom were what appeared to be drag marks in blood. Clumps of her hair were in the bedroom; some of the hair had been cut, some burned, and some pulled out by the roots.

Four knives and a pair of scissors were in the kitchen sink and appeared to have blood on them; hair appeared to be on at least one of the knives. There also was what appeared to be blood on a paper towel holder in the kitchen; a burnt paper towel was in Irene's bedroom. A Coke can with what appeared to be a bloody fingerprint on it was on the kitchen counter; this fingerprint was later identified as defendant's. At trial, the state's criminalist testified that the knives, scissors, paper towel holder, and Coke can had human blood on them, although the police did not determine the blood type. Defendant's fingerprints were found on the paper towel holder and on an arcadia door at Irene's home, which was open in the family room the morning after the crime. A blood-soaked night shirt with holes in it was in Irene's bedroom; the blood on the nightshirt was consistent with Irene's blood type. A banker's bag was also in her bedroom with what appeared to be blood on it.

The autopsy revealed that Irene suffered at least 34 sharp-force injuries (stab wounds and slicing wounds), puncture wounds, and many blunt force injuries. The most serious stab wound punctured her liver, which alone was a fatal injury. Her nose was broken, as were 2 ribs on the back of the chest and 5 ribs in front on the same side of her trunk. The tine from a wooden salad fork was embedded in her leg; a broken wooden fork was found in the bedroom. On her left buttock was an abrasion that appeared to be from the heel of a shoe. The thyroid cartilage in front of her neck was fractured, which could have been caused by squeezing or by impact with a blunt object. She died from the multiple stab wounds and the blunt neck injury. The neck injury may have resulted in asphyxiation. The pathologist believed that most, if not all, of the injuries were inflicted before death.

Gulbrandson, 906 P.2d at 586–87.

Following the murder, Gulbrandson stole Irene's car and drove it to Laughlin, Nevada, where he gambled at a hotel casino. Some time later, Gulbrandson traveled to Montana, where he was arrested on April 3, 1991. Id. at 587–88.

Two weeks later, Gulbrandson was indicted for first-degree murder and theft. Id. at 588. He presented the defenses of insanity and lack of premeditation. At the time, Arizona used the so-called M'Naghten test for insanity, which was statutorily codified as follows:

A person is not responsible for criminal conduct by reason of insanity if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong.

Ariz.Rev.Stat. § 13–502 (1991).¹

The State refuted Gulbrandson's defenses with expert testimony from Dr. Alexander Don and Dr. John Scialli, who both performed psychiatric evaluations on Gulbrandson. Dr. Don testified that he found “no indications that [Gulbrandson] suffered with a mental illness or defect at the time of the commission of the crime,” and there was “no reason to doubt that his awareness of what he was doing and the wrongfulness of what he was doing was unimpaired.” Dr. Scialli corroborated Dr. Don's testimony regarding Gulbrandson's sanity.

Gulbrandson relied on a psychiatric expert named Dr. Martin Blinder, who examined Gulbrandson in August 1992 and prepared a report detailing his conclusions (“1992 report”). Dr. Blinder's report provided four specific diagnoses for Gulbrandson: “[p]robable dissociative episode [and] possible fugue state,” “[b]ipolar disorder,” “[a]lcoholism,” and “[p]ersonality disorder, primarily narcissistic, with antisocial traits.” Although Dr. Blinder's report provided specific diagnoses for Gulbrandson, it did not state that Gulbrandson was legally insane at the time of the murder.

At the pre-trial hearing, the state moved to limit expert testimony on Gulbrandson's state of mind to a general description of his personality. The state argued that neither the state nor defense experts, including Dr. Blinder, were prepared to opine that Gulbrandson was insane, and in such circumstances, Arizona law precluded any testimony about the defendant's mental state at the time of the murder. See State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, 644 (1983) (in banc) (“In cases not involving an insanity defense, a psychiatric expert witness ordinarily may not give an opinion concerning the defendant's state of mind at the time of the crime.”). In response, defense counsel stated that he intended to raise an insanity defense, as well as argue an absence of intent. He noted that Dr. Blinder had examined Gulbrandson in order “to determine if, in fact, he was M'Naghten insane at the time of the event,” and that he “would expect” that Dr. Blinder's “testimony would relate to that.” ² The court stated it would take the issue under advisement.

Gulbrandson did not testify at the guilt stage of the trial and, instead, relied on Dr. Blinder's testimony. Dr. Blinder described Gulbrandson's psychiatric background as a “long adult history of alcoholism and mental illness, primarily depressive moods with marked mood swings and blackout spells.” He also testified as to his four specific diagnoses for Gulbrandson.

Dr. Blinder did not testify that these mental defects rendered Gulbrandson legally insane. As a result, the trial court ruled that Dr. Blinder could not testify directly about Gulbrandson's mental state at the time of the murder. Nevertheless, the court allowed Dr. Blinder to present his opinions regarding Gulbrandson's mental state at the time of the murder indirectly through hypothetical discussions of how an individual with Gulbrandson's exact diagnoses might have reacted when faced with circumstances like the ones Gulbrandson encountered the night he killed Irene. For example, when asked about how Gulbrandson would react “in a situation where he was under a high degree of stress and there was a quarrel or argument and an object was thrown at him,” Dr. Blinder responded that Gulbrandson “disassociates, goes...