Correll v. Ryan

• Citation: 539 F.3d 938
• Decision Date: 14 May 2008
• Docket Number: No. 03-99006.,03-99006.
• Parties: Michael Emerson CORRELL, Petitioner-Appellant, v. Charles L. RYAN, Warden, Acting Director, Arizona Department of Corrections; Dora B. Schriro, Director, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

539 F.3d 938

Michael Emerson CORRELL, Petitioner-Appellant, v. Charles L. RYAN, Warden, Acting Director, Arizona Department of Corrections; Dora B. Schriro, Director, Respondent-Appellee.

No. 03-99006.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 26, 2005.

Filed May 14, 2008.

Thomas Phalen, Jon M. Sands, Dale A. Baich and Paula K. Harms, Phoenix, AZ, for the appellant.

James P. Beene, Kent E. Cattani, and Terry Goddard, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CV-87-01471-PHX-SMM.

Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN and SIDNEY R. THOMAS, Circuit Judges.

Opinion by Judge THOMAS; Dissent by Judge O'SCANNLAIN.

ORDER

In response to the petition for rehearing, the panel has elected to file an amended opinion and amended dissent. The amended opinion and dissent are filed concomitantly herewith. With the filing of the amended opinion and dissent, Judges Schroeder and Thomas voted to deny the petition for rehearing and rehearing en banc. Judge O'Scannlain voted to grant the petition for rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and rehearing en banc is DENIED. The Court will entertain a further petition for rehearing and rehearing en banc as to the amendments made to the opinion. See Ninth Circuit General Order 5.3(a).

All pending motions are DENIED.

Judge CALLAHAN'S dissent from rehearing en banc follows.

OPINION

THOMAS, Circuit Judge:

Michael Emerson Correll, an Arizona inmate sentenced to death, appeals the district court's denial of his petition for writ of habeas corpus following our remand for an evidentiary hearing. We reverse.

I

This capital case arises under a federal habeas corpus provisions that have been supplanted by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), and a state capital sentencing statute that has since been repealed.

The factual history of this case was detailed in our earlier opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir. 1998) ("Correll I"). Briefly, Correll was convicted by an Arizona jury in 1984 of first degree murder, attempted first degree murder, kidnapping, armed robbery, and first degree burglary, all for his role in a triple homicide. Id. at 1408. He was sentenced to death by the trial judge, id. at 1410, and the Arizona Supreme Court upheld his conviction, State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). The Supreme Court, however, modified his death sentence as to one of the victims and invalidated one aggravating factor. Id. at 730-31; 734-35.

In 1987, Correll timely filed a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. In this petition, Correll asserted multiple violations of his constitutional rights, including his right to the effective assistance of counsel during the guilt and penalty phases of his trial, his right to confrontation, and his right to reliability in capital sentencing. Correll later filed five supplements to his petition, adducing evidence of his mental impairment and his attorney's ineffectiveness. The Arizona trial court summarily dismissed Correll's petition and subsequently denied Correll's motion for rehearing. The Arizona Supreme Court denied review without comment.

Correll subsequently filed a petition for writ of habeas corpus in federal district court under 28 U.S.C. § 2254. Correll alleged fifty-three constitutional violations at trial, at sentencing, and during the appellate process. The district court determined that twenty-six of Correll's claims were procedurally barred, then granted summary judgment against Correll on his remaining constitutional claims.

On appeal, we affirmed all of the district court's order except as to Correll's contention that he was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel at sentencing. Correll I, 137 F.3d at 1420. We remanded that issue to the district court with instructions to hold an evidentiary hearing. Id.

On remand, the district court conducted a nine day evidentiary hearing. Applying the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, the district court concluded that the performance of Correll's attorney at sentencing was deficient but that Correll had suffered no prejudice. The district court therefore granted judgment against Correll on his federal habeas corpus petition. This timely appeal followed.

Because Correll's petition for a writ of habeas corpus was filed before the effective date of AEDPA, pre-AEDPA law governs our consideration of the merits. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.1997) (en banc). Under pre-AEDPA law, we consider a claim alleging ineffective assistance of counsel as a mixed question of law and fact, which we review de novo. Rios v. Rocha, 299 F.3d 796, 799 n. 4 (9th Cir.2002). We review the district court's denial of Correll's habeas petition de novo and the district court's factual findings for clear error. Id.

II

As the Supreme Court has long instructed, the Sixth Amendment right to counsel in a criminal trial includes "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). This right extends to "all critical stages of the criminal process," Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), including capital sentencing, Silva v. Woodford, 279 F.3d 825, 836 (9th Cir.2002). "Because of the potential consequences of deficient performance during capital sentencing, we must be sure not to apply a more lenient standard of performance to the sentencing phase than we apply to the guilt phase of trial." Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir.1992).

Under the familiar Strickland standard, to prevail on his claim of ineffective assistance of counsel during the penalty phase of his trial, Correll must demonstrate first that the performance of his counsel fell below an objective standard of reasonableness at sentencing and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. Under Strickland, we measure an attorney's performance against an "objective standard of reasonableness," calibrated by "prevailing professional norms." Id. at 688, 104 S.Ct. 2052.

There are two aspects of Correll's penalty phase defense that are at issue in this appeal: the investigation of possible defenses and the presentation of valid ones.

A

Counsel has a duty at penalty phase "to conduct a thorough investigation of the defendant's background." Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to `present[ ] and explain[ ] the significance of all the available [mitigating] evidence.'" Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2001) (en banc) (quoting Williams, 529 U.S. at 399, 120 S.Ct. 1495) (alterations in original). When it comes to the penalty phase of a capital trial, "[i]t is imperative that all relevant mitigating information be unearthed for consideration." Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999), as amended.

The ABA Standards for Criminal Justice provide guidance as to the obligations of criminal defense attorneys in conducting an investigation. Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 2466, 162 L.Ed.2d 360 (2005); Williams, 529 U.S. at 396, 120 S.Ct. 1495. The standards in effect at the time of Correll's capital trial clearly described the criminal defense lawyer's duty to investigate, providing specifically:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.

ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.).

As measured against these prevailing professional norms, there can be little doubt that Correll's penalty phase counsel fell below an objective standard of reasonableness.

First, Correll's attorney did little to counsel Correll about potential mitigating arguments, even though "[a]dequate consultation between attorney and client is an essential element of competent representation of a criminal defendant." United States v. Tucker, 716 F.2d 576, 581 (9th Cir.1983) (citation omitted). Correll alleges that defense counsel met with him only once, for five minutes, between trial and sentencing. Correll I, 137 F.3d at 1412. At the evidentiary hearing, his attorney contradicted that allegation, testifying that he met with Correll "[p]robably two or three times." Based on the attorney's testimony, the district court rejected Correll's assertion of minimal consultation, specifically finding that Correll's attorney "did maintain regular contact with Petitioner prior to sentencing."

The record, however, reveals that the district court's finding of adequate consultation was...