Mann v. Ryan, 09–99017.
| Citation | 774 F.3d 1203 |
| Decision Date | 29 December 2014 |
| Docket Number | No. 09–99017.,09–99017. |
| Parties | Eric Owen MANN, Petitioner–Appellant, v. Charles L. RYAN, Director, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
OPINION TEXT STARTS HERE
Jon M. Sands, Federal Public Defender, Cary S. Sandman (argued), Assistant Federal Public Defender, Amy B. Krauss, Tucson, AZ, for Petitioner–Appellant Eric Owen Mann.
Thomas C. Horne, Attorney General, Kent E. Cattani, Division Chief Counsel, Jeffrey A. Zick, Section Chief Counsel, John Pressley Todd (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for Respondent–Appellee Charles L. Ryan.
Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:03–CV–00213–CKJ.
Before: SIDNEY R. THOMAS, Chief Judge, STEPHEN REINHARDT and ALEX KOZINSKI, Circuit Judges.
Eric Owen Mann, who was convicted and sentenced to death in Arizona state court for the murders of two men, appeals the district court's denial of his habeas corpus petition. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm in part and reverse in part.
This case involves another tragic tale of drugs and violence. On the evening of November 23, 1989, Eric Mann and his then-girlfriend, Karen Miller, returned to the house they rented in Tucson after having Thanksgiving dinner with Mann's mother. Two weeks before, Mann had arranged to sell about a kilogram of cocaine to his friend, Richard Alberts, for about $20,000, and the transaction was to take place at the house that evening. However, according to Miller, Mann never actually planned to provide cocaine to Alberts. Rather, he planned to “rip off” Alberts by taking the money and giving Alberts a shoebox filled with paper instead of cocaine. He told Miller that he planned to “whack” Alberts because he knew he would not be able to get away with the theft otherwise.
About fifteen minutes after Mann and Miller returned to their house, Alberts arrived with another man, Ramon Bazurto. Mann was initially upset when he saw that Alberts had unexpectedly brought along a second person, but after some reflection he told Miller that he had “to do it.” Mann let both men into the house, and after about ten minutes of idle talk, they followed Mann to the master bedroom in the back of the house. Miller followed the men and stood in the doorway, behind and to the left of Bazurto. Both Mann and Miller were armed.
In the master bedroom, Mann laid his .45 caliber pistol on the bed, picked up the paper-filled shoebox, and handed it to Alberts, who in turn handed Mann a black bag containing the money. Mann placed the bag on the bed. Alberts then opened the shoebox and immediately realized that it was filled with paper. At that moment, Mann grabbed his gun and immediately shot Alberts and then Bazurto.
The bullet that struck Alberts traveled through his heart, killing him almost instantly. The bullet that struck Bazurto traveled through his lung and severed his aorta, but he remained alive for a short while. He fell through the bedroom doorway and landed on the floor by Miller's feet. As Bazurto lied there on his back, he made feeble attempts to reach for the gun that was tucked into the front of his pants. Miller testified that Bazurto's sporadic movements lasted approximately three to five minutes before he died.
Miller testified that she and Mann did not make a plan beforehand to deal with the aftermath of the killings, so after Mann shot Alberts and Bazurto, he left to find somebody to help move the bodies. He picked up a friend, Carlos Alejandro, who agreed to help. Mann and Alejandro loaded the bodies into Alberts's car, drove them to a remote location on a dirt road near Fort Grant prison, and left them there.
The next day, Mann and Miller thoroughly cleaned the house and concealed any indication of what happened the night before. They recovered the bullets, patched the bullet holes in the walls, repainted, and scrubbed the bedroom with ammonia. Mann dismantled his gun and Miller's gun, hammered down the pieces, and threw them, along with the recovered bullets, in a lake. Mann then gave Alberts's car to another man to pay off a debt.
Police searched Mann's and Miller's house on November 28, 1989 pursuant to a search warrant, and found evidence of repairs to the two rear bedrooms. Mann told the police that Alberts and Bazurto had been to the house for a drug deal on the evening of November 23, but left after they failed to agree on a price. The police made no arrests at that time, and the case did not develop further until 1994.
Miller ended her relationship with Mann in October 1993. She testified that their relationship deteriorated as Mann became increasingly violent and abusive toward her, and that in late October he threatened to kill her. Miller took their young daughter and left Tucson to live with Miller's father in Washington state. In January 1994, Miller contacted the Pima County Sheriff's Department to report the 1989 murders, and her information led investigators to Alejandro. Mann was subsequently arrested and charged with two counts of first-degree murder.
Mann's trial in the Pima County Superior Court began on October 25, 1994, and lasted five days. The prosecution's case relied primarily on the testimony of Karen Miller and Carlos Alejandro, who were both granted immunity from prosecution for their roles in the murders and cover-up. Mann's court-appointed attorney did not call any witnesses for the defense, but rather sought to hold the prosecution to its burden of proof and establish through cross-examination that Mann shot Alberts and Bazurto out of self-defense, not premeditation.
On November 1, 1994, the jury found Mann guilty of both counts of first-degree murder. Following Mann's conviction, defense counsel realized that he needed more time to investigate Mann's background—including his education, criminal history, and medical records—so he requested a continuance of the sentencing hearing. He also requested that the court appoint a psychologist from the superior court clinic to evaluate Mann's mental health. The court granted both requests.
During the sentencing phase of the trial, defense counsel argued in support of ten non-statutory mitigating factors: Mann's positive, nonviolent relationship with his two daughters; his positive influence on his mother; his unstable and abusive family background; his poor educational experience; his history of substance abuse; his remorse; his cooperation with the authorities; his previously nonviolent history; his good conduct while incarcerated; and the disparity of his treatment compared to that of Miller and Alejandro. In addition to his sentencing memorandum, Mann's attorney presented Mann's handwritten autobiography, which included vivid details about how, when Mann was growing up, his father abused his brother and beat his mother so badly that she could not leave their house. The autobiography also mentioned a 1985 traffic accident in which Mann sustained a head injury and his two passengers were killed.
At the sentencing hearing, Mann's counsel presented the testimony of four witnesses. Mann's former employer testified that Mann was dependable and responsible, and Mann's former co-worker testified that Mann was a hard worker. Mann's oldest daughter testified that she loved her father and wanted to continue to have a relationship with him, and Mann's mother confirmed Mann's account of his father abusing his family and introducing Mann to crime at an early age.
The sentencing judge also had before him the report of the court-appointed psychologist, Dr. Todd C. Flynn. In that report, Dr. Flynn diagnosed Mann with alcohol abuse, polysubstance abuse, and antisocial personality disorder. He hypothesized that Mann's antisocial personality disorder was the result of extreme immaturity, which itself was due to substance abuse at an early age. He also concluded that Mann probably fit the designation of “Psychopath.”
The sentencing judge found three statutory aggravating factors: offenses committed for pecuniary gain, Ariz.Rev.Stat. § 13–703(F)(5); multiple homicides, § 13–703(F)(8); and, with respect to Bazurto, murder committed in an especially cruel, heinous, and depraved manner, § 13703(F)(6). Of the ten mitigating factors that Mann's counsel sought—all of which were non-statutory—the judge found six. He rejected cooperation with authorities, nonviolent history, disparity of treatment, and remorse. The judge specifically and vehemently denied that Mann had proven the latter factor. The judge found that the only evidence of Mann's remorse for the murders was a letter he had written to the court before the sentencing hearing. The judge also pointed out that in Mann's handwritten autobiography, Mann indicated no remorse for the deaths of the two passengers in his 1985 traffic accident. This omission, combined with Dr. Flynn's report diagnosing Mann as a psychopath with antisocial personality disorder, led the judge to conclude that “the Defendant is incapable of remorse” and “has no conscience.” The judge sentencedMann to death for each of the murders.
On direct appeal, the Arizona Supreme Court affirmed Mann's convictions. State v. Mann, 188 Ariz. 220, 934 P.2d 784, 795 (1997). The state supreme court also affirmed the trial court's findings concerning the aggravating and mitigating factors and, after independently reweighing those factors, concluded that the mitigating factors were insufficient to justify leniency. Id. at 790–91, 794–795. The United States Supreme Court denied Mann's petition for writ of certiorari. Mann v. Arizona, 522 U.S. 895, 118 S.Ct. 238, 139 L.Ed.2d 169 (1997).
Mann timely petitioned the state trial court for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. Among other claims, he asserted violations of his constitutional right...
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