Detrich v. Ryan

• Decision Date: 03 September 2013
• Docket Number: No. 08–99001.,08–99001.
• Citation: 740 F.3d 1237
• Parties: David Scott DETRICH, Petitioner–Appellant, v. Charles L. RYAN, Director of Arizona Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

740 F.3d 1237

David Scott DETRICH, Petitioner–Appellant,

v.Charles L. RYAN, Director of Arizona Department of Corrections, Respondent–Appellee.

No. 08–99001.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted En Banc Dec. 10, 2012.

Filed Sept. 3, 2013.

Amy Sara Armstrong, and Jennifer Susan Bedier (argued), Arizona Capital Representation Project, Tucson, AZ, for Petitioner–Appellant.

Kent Ernest Cattani (argued), and Laura Chiasson, Office of the Arizona Attorney General, Tucson, AZ, for Respondent–Appellee.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:03–cv–00229–DCB.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, SUSAN P. GRABER, WILLIAM A. FLETCHER, RONALD M. GOULD, CARLOS T. BEA, MARY H. MURGUIA, MORGAN CHRISTEN, JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Judges Pregerson and Reinhardt concur in the entirety of the following opinion. Judge Christen concurs in Part II and in the result. Judges Nguyen and Watford concur in the result.

David Scott Detrich appeals from the district court's denial of his habeas petition. An Arizona judge sentenced Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. The district court held that several of Detrich's claims of ineffective assistance of counsel (“IAC”) by his trial counsel were procedurally defaulted because he had failed to raise them during his state post-conviction relief (“PCR”) proceedings. Applying then-governing law, the district court rejected Detrich's argument that ineffective assistance of his PCR counsel could excuse his procedural default.

While Detrich's appeal from the district court decision was pending in this court, the Supreme Court decided Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The Court held in Martinez that a state PCR counsel's ineffective assistance in failing to raise trial-counsel IAC claims can excuse a procedural default. Detrich moved for a remand to the district court to allow that court to rule on his Martinez motion in the first instance.

We grant the motion and remand to the district court.

I. Background

Detrich was charged with first-degree murder, kidnapping, and sexual assault in connection with the killing of Elizabeth Souter. State v. Detrich (Detrich I), 178 Ariz.380, 873 P.2d 1302, 1304 (1994). Alan Charlton, who participated in the events that culminated in Souter's murder, pled guilty to kidnapping. He then testified against Detrich in exchange for a ten-and-a-half-year sentence.

Detrich's first trial ended in a mistrial after a prosecution witness testified that Detrich had invoked his rights under the Fifth Amendment during the investigation. Id. The Arizona Supreme Court reversed the conviction in Detrich's second trial because of a defective jury instruction. Id. at 1306.

After a third trial, the jury convicted Detrich of kidnapping and first-degree murder. State v. Detrich (Detrich II), 188 Ariz.57, 932 P.2d 1328, 1331 (1997). The jurors could not agree on a basis to support the first-degree murder conviction. Nine jurors found Detrich guilty of premeditated murder. Three jurors found him guilty of only felony murder. That is, it appears that only nine jurors were convinced that Detrich, rather than Charlton, was the actual killer. The trial judge concluded beyond a reasonable doubt that Detrich was the killer. Based on that conclusion, he sentenced Detrich to death for the murder and to twenty-one years in prison for the kidnapping. Id. The Arizona Supreme Court affirmed Detrich's convictions and sentence. Id.

With the assistance of new counsel, Detrich filed a PCR petition in Pima County Superior Court. Detrich alleged in his PCR petition that counsel at his third trial had been ineffective for failing to (1) present mitigating evidence during sentencing; (2) present an expert witness to rebut the aggravating factors presented by the state; (3) retain an expert witness to examine certain pieces of forensic evidence at trial; (4) present live testimony from exculpatory witness William Shell instead of relying on Shell's recorded testimony from a prior trial; (5) object to testimony that Charlton's plea agreement required that he testify truthfully; and (6) preserve other constitutional challenges for appeal. The superior court rejected Detrich's claims on the merits, holding that “neither prong of the Strickland v. Washington[, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] test has been met as to any claims of ineffective assistance of counsel.” The Arizona Supreme Court denied review, leaving the superior court's four-page order as the only reasoned state-court PCR decision.

Detrich then filed a habeas petition in federal district court. The petition alleged some of the claims that had been rejected in the state PCR proceeding, including the trial-counsel IAC claims for failure to present mitigating evidence and failure to present an expert witness to rebut the state's aggravation case. The petition also raised trial-counsel IAC claims that had not been presented in the state PCR proceedings.

Before the district court ruled, Detrich filed a second PCR petition in the superior court. In this petition, Detrich raised many of the trial-counsel IAC claims he had alleged for the first time in his federal petition. The superior court held that these new claims were procedurally barred under Arizona Rule of Criminal Procedure 32.2(b) because they could have been raised in Detrich's first PCR petition.

The district court then ruled that Detrich's new trial-counsel IAC claims were procedurally defaulted for purposes of federal habeas review. The court rejected Detrich's argument that the ineffectiveness of his first PCR counsel excused his procedural default, noting that there was no constitutional right to counsel in PCR proceedings.

The district court rejected all of Detrich's non-defaulted claims on the merits. After an evidentiary hearing, the district court held that Detrich's counsel had performed deficiently by failing to investigate and present mitigating evidence at sentencing, contrary to the holding of the state PCR court. Detrich v. Schriro, No. CV–03–229–TUC–DCB, 2007 WL 4024551, at *3–10 (D.Ariz. Nov. 15, 2007). The district court concluded, however, that Detrich had failed to show prejudice resulting from that deficient performance as required under Strickland.Detrich, 2007 WL 4024551, at * 10–24.

A three-judge panel of this court reversed, vacating Detrich's death sentence. Detrich v. Ryan, 619 F.3d 1038 (9th Cir.2010). The panel agreed with the district court that the Arizona PCR court had unreasonably applied Strickland when it concluded that Detrich's sentencing counsel had not performed deficiently. Id. at 1052–57. However, it disagreed with the district court on the prejudice prong of Strickland, holding that the PCR court's conclusion that Detrich was not prejudiced by trial counsel's failure to investigate and present mitigating evidence was based on an unreasonable determination of the facts. Id. at 1057–69.

The Supreme Court vacated our decision and remanded in light of its decision in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Ryan v. Detrich, ––– U.S. ––––, 131 S.Ct. 2449, 179 L.Ed.2d 1206 (2011) (mem.). On remand, the three-judge panel again reversed the district court and vacated the death sentence. Detrich v. Ryan, 677 F.3d 958 (9th Cir.2012). After the panel issued its second opinion, Detrich moved to remand under Martinez. We granted rehearing en banc. 696 F.3d 1265 (9th Cir.2012). Detrich's Martinez motion is now before our en banc panel.

II. Martinez v. Ryan and Trevino v. Thaler

The district court properly concluded under then-governing law that Detrich's trial-counsel IAC claims raised for the first time in his federal habeas petition had been procedurally defaulted, and that it therefore could not hear them. A federal court sitting in habeas ordinarily cannot hear a petitioner's procedurally defaulted federal claims absent a showing of cause and prejudice, or a showing that failing to review the claim will result in a fundamental “miscarriage of justice.” Wainwright v. Sykes, 433 U.S. 72, 88, 90–91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying the rule in the context of failure to make contemporaneous objection); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (making “explicit” that Wainwright and its progeny apply in “all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule”). In Coleman, the Court held that ineffective assistance of counsel in a state PCR proceeding cannot constitute cause to excuse a procedural default because there is no constitutional right to an attorney in state PCR proceedings. 501 U.S. at 752–53, 111 S.Ct. 2546. Applying Coleman, the district court correctly held, based on the law as it then stood, that the ineffectiveness of Detrich's state PCR counsel in failing to raise trial-counsel IAC claims could not constitute cause.

While the district court's decision was on appeal, the Supreme Court changed the law. See Martinez, 132 S.Ct. at 1315. The Court held in Martinez that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. The Court addressed the situation in Arizona,where a prisoner is forbidden to raise a trial-counsel IAC claim on direct review. Such a claim may be brought only in state PCR proceedings. Id. The Court wrote that in such cases, “the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim.” Id. at 1317. The Court recognized that “if c...