Cook v. Ryan

• Decision Date: 27 July 2012
• Docket Number: No. 12–16562.,12–16562.
• Citation: 12 Cal. Daily Op. Serv. 8424,688 F.3d 598,2012 Daily Journal D.A.R. 10327
• Parties: Daniel Wayne COOK, Petitioner–Appellant, v. Charles L. RYAN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

688 F.3d 598

12 Cal. Daily Op. Serv. 8424

2012 Daily Journal D.A.R. 10,327

Daniel Wayne COOK, Petitioner–Appellant,

v.Charles L. RYAN, Respondent–Appellee.

No. 12–16562.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 26, 2012.

Filed July 27, 2012.

Michael J. Meehan (argued), Law Office of Michael Meehan, Tucson, AZ, and Dale A. Baich and Robin C. Konrad, Federal Public Defender, Capital Habeas Unit, Phoenix, AZ (on the briefs), for Petitioner–Appellant Daniel Wayne Cook.

Kent E. Cattani (argued), and Thomas C. Horne (on the briefs), Office of the Attorney General, Phoenix, AZ, for Respondent–Appellee Charles L. Ryan.

Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, Senior District Judge, Presiding. D.C. No. 2:97–cv–00146–RCB.

Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

This is the second time Daniel Wayne Cook seeks habeas review in this court. See Cook v. Schriro, 538 F.3d 1000, 1007 (9th Cir.2008). Three things have happened since we issued our decision in 2008. First, the Supreme Court issued its decision in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Martinez “changed the landscape with respect to whether ineffectiveness of postconviction counsel may establish cause for procedural default.” Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir.2012). Second, the State of Arizona issued a death warrant and set August 8, 2012, as Cook's execution date. Third, the district court denied Cook's Federal Rule of Civil Procedure 60(b)(6) motion for relief from judgment under Martinez.Cook v. Ryan, No. 97–cv–00146–RCB, 2012 WL 2798789 (D.Ariz. July 9, 2012) (unpublished).¹

Cook asserts that his pretrial counsel was ineffective and that his postconviction relief (“PCR”) counsel was ineffective in Cook's presentation of that claim. In Cook's view, Martinez requires us to excuse his procedural default because of ineffective assistance of counsel (“IAC”) in his state PCR proceedings. Cook also asks us to stay his execution so that he may further pursue his underlying pretrial IAC claim.

We affirm the district court's decision to deny Cook's Rule 60(b) motion and deny Cook's motion for a stay of execution. Martinez does not apply to this case given Cook's decision to represent himself during his trial and at sentencing. Even if Martinez does apply, that decision affords Cook no relief because his pretrial IAC claim lacks merit.

A unique feature of this case, and one that informs much of our analysis, is that Cook's pretrial counsel ceased to represent Cook after seven months, at which point Cook decided to represent himself. The propriety of Cook's waiver of counsel has been fully litigated and is not at issue in this appeal. During his limited period of representation, Cook's pretrial counsel acted competently by, among other things, procuring two mental evaluations and a hearing on Cook's competence to stand trial. Indeed, in Cook's waiver of counsel hearing, Cook stated that his lawyer “has worked hard for my defense; [he] cares about the outcome of my trial.”

Cook's pretrial counsel cannot be faulted for failing to develop a mitigation case based on information that Cook knew but decided not to disclose, either before or during sentencing. Even if such fault could be assigned to Cook's pretrial counsel, Cook cannot show prejudice because Cook affirmatively chose not to present any mitigation information. Moreover, the same judge who sentenced Cook in 1988 recently reviewed most of the “new” mitigation information Cook has since developed and concluded that it would not have changed his decision. Thus, even assuming Martinez applies to this case, Cook has not raised a “substantial” claim that his pretrial counsel was ineffective.

BACKGROUND

A. Factual background

The facts are set forth in our opinion affirming the denial of Cook's first federal habeas petition, as well as in the Arizona Supreme Court's opinion denying Cook's direct appeal. See Cook v. Schriro, 538 F.3d 1000, 1008–09 (9th Cir.2008); State v. Cook, 170 Ariz. 40, 821 P.2d 731, 736–37 (1991). To summarize, at about 6 p.m. on July 19, 1987, Cook suggested to his roommate, John Eugene Matzke, that the two men steal money from Carlos Cruz–Ramos, a co-worker at a local restaurant who recently had moved in with Cook and Matzke. After Cruz–Ramos realized his money was gone, Cook and Matzke tied Cruz–Ramos to a chair and tortured him for six hours. Among other things, Cook and Matzke beat Cruz–Ramos with a metal pipe; burned his chest, stomach, and genitals with cigarettes; and cut his chest with a knife. Cook also raped Cruz–Ramos and stapled Cruz–Ramos's foreskin to a chair. Matzke finally strangled Cruz–Ramos to death with a metal pipe, and the two men put his body in a closet.

At around 2:30 or 3 a.m., Kevin Swaney arrived at Cook and Matzke's apartment. Swaney was a 16–year–old dishwasher at the restaurant where Cook and Matzke worked. Cook originally told Swaney to go away, but then invited him in. Cook barricaded the door after telling Swaney that he and Matzke had drugs they wanted to get rid of. Cook took Swaney upstairs and showed him Cruz–Ramos's body. When they returned downstairs, Swaney was crying. Cook and Matzke forced Swaney to undress and then gagged him and tied him to a chair. Matzke told Cook he wanted no part of any torture, and went to the living room and fell asleep. At around 4:30 or 5 a.m., Cook woke Matzke. Swaney remained tied and gagged and was crying. Cook told Matzke they had to kill Swaney because he (Cook) had raped him. Cook then strangled Swaney, and the two men put his body in the closet. Cook and Matzke went to sleep.

Matzke went to work that afternoon but returned home a few hours later. He and Cook went to a bar and then hung out with Byron Watkins and other friends by the pool of their apartment complex, as well as in their apartment. The following morning, Matzke showed Watkins the bodies. Watkins convinced Matzke to go to the police. The two men went to the police department, whereupon Matzke gave a videotaped statement.

The police went to Cook and Matzke's apartment and arrested Cook. After receiving Miranda warnings, Cook said, “we got to partying; things got out of hand; now two people are dead.” Cook then said, “my roommate killed one and I killed the other.” He specifically admitted choking Swaney to death. After making these statements, Cook refused to say anything further.

B. Procedural background1. Proceedings before and during trial

The long procedural history of this matter is set forth in Cook, 538 F.3d at 1009–14. As relevant here, Cook and Matzke were charged with two counts of first-degree murder, including a death penalty allegation under Arizona Revised Statute § 13–703. The trial court appointed attorney Claude Keller (hereinafter “pretrial counsel”) to represent Cook. A grand jury returned an indictment on two counts of first-degree murder against both defendants.

Cook was given two pretrial psychological evaluations. After a hearing, the trial court concluded that Cook was competent to stand trial. Cook was then given an additional neurological examination, the results of which were filed with the trial court. A couple of months later, Cook filed a pro se motion to waive counsel and have his counsel appointed as advisory counsel. During the ensuing hearing, Cook asked that the trial court “not appoint Mr. Keller as my legal advisor.” Cook explained, “Mr. Keller has worked hard for my defense; cares about the outcome of my trial. My personal belief[ ] is that he cannot advise me according to my defense.” Cook asked for a specific attorney, but the trial court said only someone else was available, whom Cook rejected. The trial court explained at length the perils of self-representation, but Cook still wanted to proceed pro se. The court then conducted extensive questioning pursuant to Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and found that Cook knowingly, intelligently, and voluntarily relinquished his right to counsel. The court granted Cook's motion and appointed Keller as Cook's advisory counsel. This was two weeks before trial.

Matzke entered into a stipulated guilty plea and was sentenced to 20 years in prison. Matzke testified against Cook at Cook's trial. At the end of the trial, the jury deliberated for 77 minutes before returning a guilty verdict against Cook on both first-degree murder counts.

Following his conviction, Cook continued to represent himself and presented no mitigating evidence at the sentencing hearing, stating that the “[o]nly sentence I will accept from this Court at this time is the penalty of death, your Honor. I have nothing further.” The court reviewed the presentence report, the mental health evaluations, the State's sentencing memorandum, a letter from Cook, the trial evidence, and matters from hearings in the case. The court found three aggravating factors (the murders were multiple, were committed for pecuniary gain, and were committed in an especially heinous, cruel, or depraved manner). The court found no mitigating factors to offset these aggravating factors and sentenced Cook to death.

2. State PCR and federal habeas proceedings

Cook, with the help of a lawyer (hereinafter “appellate counsel”), filed a direct appeal in which he raised 16 issues. Cook argued, among other things, that the trial court had erred in allowing him to waive his appointed trial counsel. The Arizona Supreme Court rejected this claim, explaining that “[w]hile Cook certainly lacked a lawyer's skills, the record demonstrates that he was intellectually competent, understood the trial process, and was capable of making—and did make—rational decisions in managing his case.” Cook, 821 P.2d at 739.

While his appeal was pending, Cook filed a motion to relieve his appellate counsel...