Cruz v. Ryan
| Decision Date | 27 March 2018 |
| Docket Number | No. CV-13-0389-TUC-JGZ,CV-13-0389-TUC-JGZ |
| Parties | John Montenegro Cruz, Petitioner, v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
DEATH PENALTY CASE
Petitioner John Montenegro Cruz, a state prisoner under sentence of death, has filed a Petition for Writ of Habeas Corpus. (Doc. 28.)1 Petitioner alleges, pursuant to 28 U.S.C. § 2254, that he is imprisoned and sentenced in violation of the United States Constitution. He seeks expansion of the record, discovery, and an evidentiary hearing in support of two claims in the Petition. (Doc. 38.) Respondents oppose the Petition and the request for evidentiary development. (Docs. 31, 42.) For the reasons set forth below, the Court finds that Petitioner is entitled to de novo review of Claim 2. The Court further finds that an evidentiary hearing will assist the Court in determining whether trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of Petitioner's trial, as alleged in Claim 2. Petitioner's motion, therefore, will be granted in part. The remaining claims in the Petition are denied.
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Petitioner was convicted and sentenced to death for the 2003 murder of Tucson Police Officer Patrick Hardesty. The following facts concerning the crime are based on the Arizona Supreme Court's opinion in State v. Cruz, 218 Ariz. 149, 155-56, 181 P.3d 196, 202-03 (2008), and this Court's review of the record.
On May 26, 2003, Tucson Police Department Officers Patrick Hardesty and Benjamin Waters responded to a hit-and-run accident. The investigation led the officers to a nearby apartment occupied by two women and Petitioner, who fit the description of the hit-and-run driver.
The officers asked Petitioner to step outside and identify himself. Petitioner said he was "Frank White." Officer Hardesty contacted police dispatch but was unable to verify the identity. He asked Petitioner for identification and Petitioner replied that he had left it in the car.
As Officer Hardesty and Petitioner approached the car, Petitioner leaned in as if retrieving something, then "took off running." Officer Hardesty chased Petitioner on foot, while Officer Waters drove his patrol car around the block in an attempt to cut Petitioner off.
When Officer Waters turned the corner, he saw Petitioner throw a gun on the ground. Officer Hardesty was nowhere in sight. Officer Waters radioed Officer Hardesty that Petitioner had a gun, then got out of his car and drew his service weapon on Petitioner, who stated, Officer Waters apprehended Petitioner after a brief struggle.
Officer Hardesty's body was discovered immediately. He had been shot five times. Two bullets were stopped by his protective vest, two bullets entered his abdomen below the vest, and a fifth bullet entered his left eye, killing him almost instantly. Four of the five shots were fired from no more than twelve inches away.
The handgun thrown down by Petitioner, a .38 caliber Taurus revolver, held five cartridges. All five cartridges had been fired, and forensic examiners determined that the five slugs, recovered from Officer Hardesty's body and vest, were fired from that Taurusrevolver. Five unfired .38 cartridges that matched the cartridges fired from the Taurus were found in Petitioner's pocket when he was apprehended.
Petitioner was indicted on one count of first-degree murder.2 The State filed its notice of intent to seek the death penalty alleging a single aggravating factor: "The murdered person was an on duty peace officer who was killed in the course of performing the officer's official duties and the defendant knew, or should have known, that the murdered person was a peace officer." A.R.S. § 13-703(F)(10) (2003) (currently found at § 13-751(F)(10)).3 A jury convicted Petitioner of first-degree murder and found the (F)(10) aggravating factor.
In the penalty phase, Petitioner alleged the following mitigating factors: impaired capacity to appreciate the wrongfulness of his conduct; impaired capacity to conform his conduct to the law; unusual and substantial duress; unforseeability that the acts would cause death; dysfunctional family; deprivation of "necessary nurturing love" from family; family history of mental disorders; posttraumatic stress disorder ("PTSD"); drug addiction; mental state affected by family history of mental disorders, PTSD, and drug addiction; unfavorable impact on Petitioner's family; existence of family support; compliance with prison rules; lack of propensity for future violence; capability to adapt to prison life; and lack of plan to commit the murder. Petitioner asserted that his "upbringing, life-style and subculture all made it far more likely that he would find himself in this position." The jury did not find the proffered mitigation sufficiently substantial to call for leniency, and determined that Petitioner should be put to death.
On direct appeal, the Arizona Supreme Court affirmed Petitioner's conviction and death sentence. Cruz, 181 P.3d at 218. The court found that the jury did not abuse its discretion by determining that Petitioner should be sentenced to death:
Although Cruz's early life was certainly not ideal, absent is the type of horrible abuse often found in our capital jurisprudence. Cruz was neither suffering from any significant mental illness nor under the influence of drugs at the time of the crime. The evidence presented on most of these mitigating circumstances was weak, and Cruz established little or no causal relationship between the mitigating circumstances and the crime. Moreover, much of the mitigating evidence offered by Cruz was effectively rebutted by the State.
Petitioner filed a petition for post-conviction relief ("PCR") in the trial court raising three claims based on alleged deprivations of his Sixth Amendment right to conflict-free counsel and to the effective assistance of counsel during both the guilt and sentencing phases of his trial. (Doc. 31, Ex. W at 23-35.) The PCR court addressed these claims as six distinct claims of Sixth Amendment deprivations by counsel: trial counsel's actual conflict of interest as evidenced by defense counsel's vouching for the credibility of Officer Waters (Claim I (A)), and by not advising the Petitioner of the effect of his failure to take responsibility during allocution (Claim I (B)); trial counsel's ineffectiveness for failing to challenge the credibility of three law enforcement officers in connection with the murder weapon and unspent cartridges (Claim II (A)), and affirmatively vouching for the officers during final argument (Claim II (B)); and counsel's ineffectiveness at sentencing for failing to advise Petitioner to take responsibility for the crime during his allocution (Claim III (A)), and failing to fully investigate certain mitigating factors and present expert testimony regarding the causal connection between the mitigating circumstances and the crime (Claim III (B)). (Doc. 31, Ex. RR at 6, 8-13.)
The PCR court denied relief without conducting an evidentiary hearing. (Doc. 31, Ex. RR.) The court found Claims I (A) and (B) precluded because Petitioner failed to raise these claims on direct appeal; alternatively the court found the claims lacked merit because counsel's actions represented a sound trial strategy. (Id. at 6-9) (citing Ariz. R. Crim. P. 32.2(a)(3)). The court found that Petitioner failed to raise a colorable claim as toClaims II (A) and (B), finding counsel's actions in connection with these claims constituted trial strategy, and that Petitioner failed to demonstrate a colorable claim of deficient performance or prejudice. (Id. at 11.) The court found that Petitioner failed to raise a colorable claim as to Claim III (A). (Id. at 12.) Finally, the court found Claim III (B) not colorable because trial counsel's choices in connection with mitigation were reasonable and represented sound trial strategy and "none of the factors addressed by defendant, either alone or in connection with other mitigation, would alter the sentence of death as found by a jury." (Id. at 13-18.) The Arizona Supreme Court denied discretionary review of the petition on May 29, 2013. (Doc. 31, Ex. XX.)
Petitioner filed his petition for writ of habeas corpus in this Court on May 1, 2014. (Doc. 28.)
Because it was filed after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 ("§ 2254).4 Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v. Garceau, 538 U.S. 202, 210 (2003).
Under AEDPA, a writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state remedies, the petitioner must "fairly present" his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). A petitioner must clearly alertthe state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is "self-evident," Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th...
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