740 F.3d 1302 (9th Cir. 2014), 08-99017, Dickens v. Ryan

Docket Nº:08-99017.
Citation:740 F.3d 1302
Opinion Judge:N.R. SMITH, Circuit Judge:
Party Name:Gregory DICKENS, Petitioner-Appellant, v. Charles RYAN, Respondent-Appellee.
Attorney:Robin C. Konrad (briefed and argued) and Dale A. Baich, Assistant Federal Public Defenders, Federal Public Defender's Office, Phoenix, AZ, for Petitioner-Appellant. John P. Todd, Assistant Attorney General, Capital Litigation Section, Arizona Attorney General's Office, Phoenix, AZ, for Respondent...
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, KIM McLANE WARDLAW, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, N. RANDY SMITH, MARY H. MURGUIA, MORGAN CHRISTEN and PAUL J. WATFORD, Circuit Judges. N.R. SMITH, Circuit Judge, delivered the opinion of the Court, ...
Case Date:January 23, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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740 F.3d 1302 (9th Cir. 2014)

Gregory DICKENS, Petitioner-Appellant,

v.

Charles RYAN, Respondent-Appellee.

No. 08-99017.

United States Court of Appeals, Ninth Circuit.

January 23, 2014

Argued and Submitted En Banc June 24, 2013.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Robin C. Konrad (briefed and argued) and Dale A. Baich, Assistant Federal Public Defenders, Federal Public Defender's Office, Phoenix, AZ, for Petitioner-Appellant.

John P. Todd, Assistant Attorney General, Capital Litigation Section, Arizona Attorney General's Office, Phoenix, AZ, for Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CV-01-757-PHX-NVW.

Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, KIM McLANE WARDLAW, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, N. RANDY SMITH, MARY H. MURGUIA, MORGAN CHRISTEN and PAUL J. WATFORD, Circuit Judges.

N.R. SMITH, Circuit Judge, delivered the opinion of the Court, which is joined in full by Judges IKUTA and WATFORD. Chief Judge KOZINSKI, Judge BYBEE, and Judge CALLAHAN join Parts I and II. Judges PREGERSON, WARDLAW, BERZON, MURGUIA, and CHRISTEN join Part III.

OPINION

N.R. SMITH, Circuit Judge:

Arizona state prisoner Gregory Scott Dickens appeals the district court's denial

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of his 28 U.S.C. § 2254 habeas corpus petition. We affirm the district court's conclusion that (1) the Arizona Supreme Court did not unreasonably apply Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), to the facts of this case and (2) the Arizona Supreme Court did not base its decision on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). However, we reverse the district court's denial of one of Dickens's ineffective assistance of counsel claims.1 While we agree that Dickens defaulted on this claim by failing to fairly present the claim to the Arizona courts, we remand to allow the district court to reassess whether Dickens can establish cause and prejudice to excuse the procedural default under Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

FACTS 2

In January 1990, Dickens became acquainted with then fourteen-year-old Travis Amaral. Dickens met Amaral while working as a counselor at Oak Grove Institute in Temecula, California. Oak Grove is a placement center for violent juveniles where Amaral lived at the time. While working with Amaral, Dickens learned that he was a " high risk" patient with a " violent and explosive temper." Dickens also discovered that Amaral battered a nurse and frequently bragged about carrying guns and being involved in several murders. In March 1990, Dickens quit working at Oak Grove, but continued his friendship with Amaral.

In early September 1991, Dickens moved to Yuma, Arizona. A few days after his move, Amaral contacted Dickens and explained that he was running away from home. Dickens purchased a bus ticket for Amaral to travel to Yuma. Amaral arrived in Yuma on September 8, 1991. The two then spent the next several days recreating near the Colorado River. Dickens showed Amaral a .38-caliber revolver he had recently acquired and, at some point during their time together, Amaral attempted to intimidate Dickens by pointing the revolver at Dickens's head.

Dickens paid for Amaral's food and transportation during his visit to Yuma. But Dickens was running low on cash. On September 10, 1991, Dickens and Amaral discussed " ways to get more money," while eating dinner at a Hardee's restaurant. Dickens suggested they plan a robbery. They flipped a coin to decide who would conduct the first robbery. Amaral won. Dickens then gave Amaral a choice of several locations to commit the robbery. His options included a convenience store and a highway rest stop. Amaral selected the rest stop since it was " out of the way," less busy, and " easier."

Dickens and Amaral left the restaurant and drove to a rest area on the eastbound side of Interstate 8, east of Yuma. Dickens removed his .38-caliber revolver from the glove compartment and placed it on a seat in the vehicle. At some point while waiting at the rest stop, Amaral again pointed the revolver at Dickens's head to intimidate him. After waiting at the rest area for approximately three hours, Dickens

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and Amaral saw Bryan and Laura Bernstein enter the rest area for westbound traffic on the opposite side of the freeway.3 Dickens nodded his head and either handed Amaral the handgun or watched him remove it from the seat. They agreed that, once Amaral robbed the Bernsteins, he would run down the westbound ramp of the rest area where Dickens would pick him up.

Dickens watched from his truck on the opposite side of the highway as Amaral crossed the interstate, approached the Bernsteins, and asked if they had the time.4 Laura responded, " 9:17 [p.m.]." Amaral then pointed the gun at Bryan and demanded his wallet. Once Bryan surrendered his wallet, Amaral asked Laura for her wallet, but she did not have one. Amaral then ordered the Bernsteins to walk past their car and turn around. From the opposite side of the highway, Dickens observed Amaral moving the Bernsteins across the beams of light from their headlamps. Amaral asked if they were ready to die and then shot Laura in the head. Dickens saw the bright flash of the gun as Amaral shot Laura. Laura fell to the ground and Bryan crouched down over her. Amaral then recocked the revolver, pointed it at Bryan, and shot him in the head.

After observing the robbery and shootings, Dickens drove across the median and through the rest area. No evidence suggests Dickens stopped to aid the Bernsteins, called for emergency medical assistance, or otherwise notified the authorities. Dickens then picked up Amaral on the westbound side of the highway and asked,

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" Do you have the wallet?" Amaral replied that he did and handed the wallet to Dickens. Dickens searched the wallet and returned it to Amaral. Dickens explained to Amaral that he had driven through the rest area to make sure " everything was taken care of." They then drove to the home of Dickens's brother where Amaral removed cash, traveler's checks, and one credit card from Bryan's wallet. Dickens and Amaral burned the wallet and its remaining contents. They split the cash, Amaral pocketed the credit card and they later destroyed the traveler's checks.

At approximately 9:40 p.m., a deputy sheriff drove into the rest area and found the Bernsteins lying on the ground in front of their vehicle. Laura was dead. Bryan was semiconscious, thrashing around, and moaning in pain. Bryan told the deputy that he had been threatened with a gun, attacked, and thought he had been shot. Bryan died shortly thereafter.

On September 11, the morning following the murders, Amaral unsuccessfully attempted to use Bryan's credit card at a local K-Mart. Dickens and Amaral spent that night at a Motel 6 where Dickens had rented a room. Early the next morning, Dickens drove to Carlsbad, California, and Amaral went back to his mother's house.

Dickens and Amaral met up again in March 1992, and Amaral stayed with Dickens for one or two weeks in a San Diego, California apartment. Amaral's mother reported Amaral as a runaway and gave Dickens's address to the police. The police conducted an investigation into sex abuse charges against Dickens. San Diego police officers eventually arrested Dickens on charges of sexually abusing Amaral (and other boys) and assault with a deadly weapon.5 During an interview concerning the alleged abuse, Amaral told officers that he and Dickens had been involved in the double homicide in Yuma.

PROCEDURAL HISTORY

In April 1992, Dickens was indicted for two counts of premeditated first-degree murder, two counts of felony first-degree murder, one count of conspiracy to commit first-degree murder, one count of conspiracy to commit armed robbery, and two counts of armed robbery. After a trial, he was acquitted of premeditated murder and conspiracy to commit murder. However, he was convicted of the felony murders and armed robberies of Bryan and Laura Bernstein and conspiracy to commit armed robbery. The sentencing court found no mitigating factors and thus sentenced Dickens to death on the felony murder counts.6 The sentencing judge ordered that, if the sentences were ever reduced, then they should be served consecutively. The court also sentenced Dickens to fourteen years' imprisonment on the conspiracy and armed robbery convictions, to be served consecutively to the death sentences.

Dickens applied for post-conviction relief from the trial court but was denied. Dickens then appealed his conviction and sentence to the Arizona Supreme Court. That court affirmed the trial court's denial, noting that " [t]his is not a case of lingering

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doubt" and that overwhelming evidence supported the conviction and capital sentences. State v. Dickens, 187 Ariz. 1, 926 P.2d 468, 493 (1996) (in banc).

Dickens subsequently filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 with the U.S. District Court for the District of Arizona. In the federal habeas proceeding, Dickens changed his ineffective assistance of counsel (" IAC" ) claim to include extensive factual allegations that he suffered from Fetal Alcohol Syndrome (" FAS" ) and organic brain damage. The district court concluded that Dickens's new claim was procedurally barred and, with regard to his other arguments, denied his petition. Dickens appealed the district court's decision to this court.

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