Correll v. Ryan, 03-99006.

• Decision Date: 02 October 2006
• 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, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.3d 1006

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

No. 03-99006.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 26, 2005.

Filed October 2, 2006.

Thomas Phalen and Jon M. Sands, 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: SCHROEDER, Chief Judge, O'SCANNLAIN and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

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

I

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"). Correll was convicted by an Arizona jury in 1984 of first degree murder, attempted first degree murder, kidnapping, armed robbery, and first degree burglary for his role in a triple homicide. Id. at 1408. He was sentenced to death by the trial judge. Id. at 1410. His conviction was upheld by the Arizona Supreme Court. State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). However, the Supreme Court 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 on the claim. 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. Therefore, the district court 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 the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), pre-AEDPA law governs our consideration of the merits of the claims. 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 that 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," measured "under prevailing professional norms." Id. at 688, 104 S.Ct. 2052.

There are two aspects of Correll's penalty phase defense at issue on this appeal: the investigation of possible defenses, and the presentation of the penalty phase defense.

A

Counsel has a duty at penalty phase "to conduct a thorough investigation of the defendant's background." Landrigan v. Schriro, 441 F.3d 638, 643 (9th Cir.2006) (en banc) (citing 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, ___, 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 that:

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.).

It is undisputed in this case that Correll's attorney did little investigation of potential mitigating evidence for presentation at the penalty phase, although "[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 only met with him once, for five minutes between the trial and penalty phase. Correll I, 137 F.3d at 1412. Defense counsel testified at the evidentiary hearing that he met with Correll more than one time; however, it is apparent from the record that the consultation was not extensive.

Penalty phase investigations in capital cases should include inquiries into social background and evidence of family abuse, potential mental impairment, physical health history, and history of drug and alcohol abuse. Summerlin v. Schriro, 427 F.3d 623, 630 (9th Cir.2005) (en banc). An investigation should include examination of mental and physical health records, school records, and criminal records. Id. "Defense counsel should also personally review all evidence that the prosecution plans to introduce in the penalty phase proceedings, including the records pertaining to criminal history and prior convictions." Id. (citing Rompilla, 125 S.Ct. at 2465).

Although he was aware that potential mitigating evidence existed, defense counsel did not explore any avenues that might lead to development of evidence. Indeed, in light of the abundance of classic mitigation evidence of which counsel was aware, his almost complete failure to investigate is startling. His attorney knew that, among other things, Correll came from a dysfunctional family, sustained a serious head injury, was committed to various psychiatric facilities, and that he was addicted to drugs; yet defense counsel did not obtain the records nor did he interview witnesses concerning these matters. Counsel did meet with the family members who would cooperate, but he admitted that he met only once with Correll's father, sister, and brother, "around the kitchen table at the same time," and probably spent "[a] couple hours" with them. Counsel did not obtain Correll's school records,...