Detrich v. Ryan
| Decision Date | 02 May 2012 |
| Docket Number | No. 08–99001.,08–99001. |
| Citation | 677 F.3d 958,12 Cal. Daily Op. Serv. 4854,2012 Daily Journal D.A.R. 5702 |
| Parties | David Scott DETRICH, Petitioner–Appellant, v. Charles L. RYAN,* of Arizona Department of Corrections, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Prior Version Recognized as Invalid
A.R.S. § 13–703(B)
Jennifer S. Bedier (argued), Arizona Capital Representation Project, and Gregory J. Kuykendall, Kuykendall & Associates, Tucson, AZ, for petitioner-appellant David Scott Detrich.
Terry Goddard, Attorney General; Kent E. Cattani (argued), Chief Counsel; and Donna J. Lam, Assistant Attorney General, Tucson, AZ, for respondent-appellee Charles Ryan.On Remand from the United States Supreme Court. D.C. No. 4:03–cv–00229–DCB.
Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.
Opinion by Judge PAEZ; Dissent by Judge McKEOWN.
An Arizona judge sentenced David Scott Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. After exhausting his state remedies, Detrich filed a petition for a writ of habeas corpus in federal district court alleging, among other things, that his trial counsel was unconstitutionally ineffective at the penalty phase for failing to investigate and present substantial mitigating evidence and for failing to rebut the state's arguments that aggravating circumstances warranted a death sentence. 1 Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214, the district court denied relief.
In our opinion reported at 619 F.3d 1038 (9th Cir.2010), we reversed the district court's denial of Detrich's habeas petition. We concluded that the state court's decision that Detrich's counsel, Harold Higgins, performed competently involved an unreasonable application of federal law, as determined by the Supreme Court. We next held that the state court's decision that Detrich was not prejudiced by Higgins's errors resulted from an unreasonable determination of the facts. Finally, considering the prejudice inquiry de novo, we concluded that there was a reasonable probability that Detrich would have received a sentence less than death but for Higgins's deficient representation.
The United States Supreme Court granted certiorari, vacated our judgment, and remanded this case for further consideration in light of Cullen v. Pinholster, 563 U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). See Ryan v. Detrich, ––– U.S. ––––, 131 S.Ct. 2449, 179 L.Ed.2d 1206 (2011) (Mem.). Having reconsidered the facts and issues of this case in light of Pinholster, see discussion infra at p. 983, we again conclude that Detrich is entitled to habeas relief.
As recounted in the Arizona Supreme Court's opinion on direct appeal, Detrich and a co-worker, Alan Charlton, left work on November 4, 1989, and went to a local bar in Benson, Arizona, where the two consumed between 12 and 24 beers each, according to Charlton's estimate. State v. Detrich ( Detrich II ), 188 Ariz. 57, 932 P.2d 1328, 1331 (1997). The men then drove to Tucson, where they drank more beer at more bars. Id. Later that night, they picked up Elizabeth Souter, the eventual victim, who was walking along the road. Id. At Detrich's request, Souter directed him to a “roadhouse” where he could buy cocaine. Id. The two men and Souter then drove to Souter's home, where Detrich attempted to cook the cocaine in a spoon so that it could be injected. Id. When the syringe would not pick up the cocaine, Detrich began screaming that “the needle wasn't any good, or the cocaine wasn't any good” and told Souter that she would have to pay for the bad drugs by having sex with him. Id. Three witnesses—Charlton and two others—reported that Detrich was holding a knife against Souter's throat. Id.
Detrich then told Souter they were going for a ride, and Detrich, Charlton, and Souter left in Charlton's car. Id. Charlton drove, Detrich sat in the middle, and Souter sat on the passenger side, against the door. Id. Charlton testified that, while stopped at a red light, he saw Detrich “humping” Souter and asking her how she liked it. Id. Soon thereafter, Charlton looked again and saw that Souter's throat was slit. Id. Charlton further testified that Detrich then hit Souter and asked her who gave her the drugs, and that Souter only gurgled in response. Id. at 1331–32. Detrich asked twice more, and Souter again responded with only a gurgle. Id. at 1332. Charlton claims that he never saw Detrich actually stab Souter, but that he himself was poked in the arm with a knife several times. Id. A pathologist established that Souter was stabbed forty times. Id.
Charlton testified that, at this point, Detrich said to him, Id. Charlton declined. Id. The two pulled over in a remote area approximately fifteen minutes from Souter's home, and Detrich dragged Souter's body into the desert. Id. The two men then drove to a friend's house in Tucson. Id. The friend testified that the men showed up at his house at 4 a.m., that Detrich was covered in blood, and that Charlton had blood only on his right side. Id. About an hour later, Detrich told the friend that he had killed a girl by slitting her throat because she had given them bad drugs. Id.
Several days later, the friend called in an anonymous tip to the police. Id. Based on the tip, the police arrested Charlton, who confessed to his involvement in the crime. Id. Several days later, Detrich was arrested in New Mexico with a folding knife in his possession. Id. Although Charlton admitted the knife was his, he explained that it often fell out of his pants, and that Detrich had the knife on the night of the murder and the next morning, when it was covered in blood. Id.
Charlton entered into a plea bargain under which he pleaded guilty to kidnapping and agreed to testify against Detrich in exchange for the prosecution dropping the capital murder charge against him. Charlton was sentenced to ten and a half years' imprisonment.
Detrich was charged with first-degree murder, kidnapping, and sexual assault. State v. Detrich ( Detrich I ), 178 Ariz. 380, 873 P.2d 1302, 1304 (1994). Detrich's first trial ended in a mistrial when a prosecution witness mentioned that Detrich had invoked his right to remain silent at one point during the investigation. Id. After a retrial, the jury convicted Detrich of first-degree murder and kidnapping, acquitted him of sexual assault, and convicted him of the lesser-included offense of sexual abuse. Id. The state sought the death penalty. See id. at 1303.
Pursuant to Arizona law, the sentencing judge held a hearing to determine whether aggravating and mitigating circumstances were present. See Ariz.Rev.Stat. § 13–703(B) (1995), invalidated by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).2 Under Arizona law at the time, if the sentencing judge found one or more of ten enumerated aggravating circumstances, he had to impose the death penalty unless mitigating circumstances outweighed the aggravating factors. Id. § 13–703(E). At the sentencing hearing, the prosecution urged the court to find as an aggravating circumstance that the crime was “especially cruel, heinous, or depraved.”
In response, defense counsel noted that a doctor had testified that he could not tell whether the victim had actually experienced conscious, physical pain and suffering and urged the court to find several mitigating circumstances. First, counsel argued that Detrich did not have the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the law due to his extreme intoxication, and possible black-out, at the time of the murder. In support of this argument, counsel noted that Detrich had no known pattern of aggressive behavior and that Detrich's problems with alcohol had existed since he was nine years old. Further, defense counsel urged the court to find as mitigating circumstances Detrich's codefendant's mere ten-and-a-half-year sentence and Detrich's remorse.
Three days after this hearing, the trial judge sentenced Detrich to death, concluding that the murder had been committed in an “especially cruel, heinous, and depraved” manner, and that no mitigating circumstances were proven.
Detrich appealed his conviction and sentence to the Arizona Supreme Court. See Detrich I, 873 P.2d at 1303. That court reversed his kidnapping and murder convictions because of a defective jury instruction and remanded for a new trial on those charges. Id. at 1306–07.
New counsel, Harold Higgins, was appointed for Detrich's retrial. The jury convicted Detrich of kidnapping and first-degree murder, but did not unanimously agree on a single theory of first-degree murder: nine jurors found premeditation; eleven found felony murder; and eight found both.
The prosecution sought the death penalty and filed a sentencing memorandum alleging as an aggravating circumstance that the crime was especially cruel, heinous, and depraved, and arguing that this aggravating factor outweighed the mitigating factors. In response, Detrich's counsel filed a three-page sentencing memorandum that did not challenge the state's aggravation case, and instead argued that the court should not impose the death penalty because the jury's lack of unanimity about whether Detrich had committed premeditated murder or just felony murder indicated that the jury was not convinced that Detrich actually committed the murder. In addition, the memorandum pointed to new evidence presented at the second trial that suggested that Charlton, not Detrich, may actually have killed Souter.
The sentencing memorandum also listed five mitigating factors, with little elaboration or argument: Detrich's diminished capacity...
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