Dickens v. Ryan

• Decision Date: 03 August 2012
• Docket Number: No. 08–99017.,08–99017.
• Citation: 688 F.3d 1054,12 Cal. Daily Op. Serv. 8795,2012 Daily Journal D.A.R. 10758
• Parties: Gregory DICKENS, Petitioner–Appellant, v. Charles RYAN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

688 F.3d 1054

12 Cal. Daily Op. Serv. 8795

2012 Daily Journal D.A.R. 10,758

Gregory DICKENS, Petitioner–Appellant,

v.Charles RYAN, Respondent–Appellee.

No. 08–99017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 2011.

Filed Aug. 3, 2012.

Jon M. Sands, Federal Public Defender, Phoenix, AZ, for petitioner-appellant Gregory Dickens.

John Pressley Todd, Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for respondent-appellee Dora B. Schriro.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CV–01–757–PHX–NVW.

Before: STEPHEN REINHARDT, JOHNNIE B. RAWLINSON, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge N.R. SMITH; Dissent by Judge REINHARDT.

OPINION

N.R. SMITH, Circuit Judge:

Gregory Scott Dickens, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. Dickens was sentenced to death on each of two counts of felony murder for the 1991 killings of Bryan and Laura Bernstein. In this petition, Dickens challenges his capital sentences, arguing that (1) the Arizona Supreme Court's application of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), was unreasonable; (2) the Arizona Supreme Court based its decision on an unreasonable determination of the facts; and (3) his trial counsel rendered ineffective assistance by failing to investigate and present certain mitigating evidence during sentencing.¹

Regarding Dickens's first two arguments, we must affirm, because (1) the Arizona Supreme Court's application of Enmund and Tison to the facts of this case was not objectively unreasonable and (2) the Arizona Supreme Court did not base its decision on a clearly erroneous determination of the facts. As for Dickens's third argument, although we agree that Dickens defaulted on his ineffective assistance of counsel claim by failing to fairly present the claim to the Arizona courts, we vacate and remand to allow the district court to reassess whether Dickens has established cause and prejudice for the procedural default under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

Background²

In January 1990, while working as a counselor at the Oak Grove Institute in Temecula, California, Dickens became acquainted with then fourteen-year-old Travis Amaral. Amaral lived at Oak Grove, which is a placement center for violent juveniles. Dickens worked with Amaral and learned that he was a “high risk” patient with a “violent and explosive temper.” Dickens also learned that Amaral battered a nurse and frequently bragged about carrying guns and being involved in several murders. Dickens quit working at Oak Grove in March 1990 but maintained his friendship with Amaral.

In early September 1991, a few days after Dickens moved to Yuma, Arizona, Amaral contacted Dickens and explained that he was running away from home. Hearing this news, Dickens purchased a bus ticket for Amaral to travel to Yuma. Amaral arrived in Yuma on September 8, 1991. He spent the next several days with Dickens near the Colorado River. While recreating on the river, Dickens showed Amaral a .38–caliber revolver he had recently acquired. At some point during their time together, Amaral attempted to intimidate Dickens by pointing the loaded revolver at Dickens's head.

Dickens paid for Amaral's food and transportation during his visit to Yuma. However, after a couple of days, Dickens was running low on cash. Therefore, on September 10, 1991, while eating dinner at a Hardee's restaurant in Yuma, Dickens and Amaral discussed “ways to get more money.” Dickens suggested they plan a robbery. They flipped a coin to decide who would conduct the first robbery, and Amaral won. Dickens gave Amaral a choice of several locations to commit the robbery, including a convenience store and a highway rest stop. Amaral chose the rest stop, because it was “out of the way,” less busy, and “easier.”

After leaving the restaurant, Dickens and Amaral drove to a rest area on eastbound Interstate 8, east of Yuma. Dickens removed his .38–caliber revolver from the glove compartment and placed it on the seat of the vehicle. While waiting for the appropriate circumstances to conduct the robbery, an argument ensued between the two. During the argument, Amaral again pointed the revolver at Dickens's head to intimidate him. After waiting and watching at the rest area for approximately three hours, Dickens and Amaral saw Bryan and Laura Bernstein ³ drive into the parallel westbound rest area across the interstate. Dickens nodded his head and either handed Amaral the handgun or watched him remove it from the seat. They agreed that, after Amaral robbed the Bernsteins, Amaral would run down the westbound ramp of the rest area where Dickens would pick him up.

Sitting in his truck on the opposite side of the highway, Dickens watched Amaral as he crossed the interstate and approached the Bernsteins. When he reached the Bernsteins, Amaral asked if they had the time. Laura responded, “9:17 [p.m.].” Amaral then pointed the gun at Bryan and demanded his wallet, which Bryan surrendered. Amaral then asked Laura for her wallet, but she did not have one. Amaral ordered the Bernsteins to walk past their car and turn around. From the opposite side of the highway, Dickens observed Amaral moving the Bernsteins across the beams of light from their headlamps. Amaral asked if they were ready to die, then shot Laura point blank in the head. Dickens saw the bright flash of the gun as Amaral shot Laura. Laura fell to the ground, and Bryan crouched down over her. Amaral recocked the revolver, pointed it at Bryan, and shot him in the head.

After seeing that Amaral had robbed and shot the Bernsteins, Dickens drove across the median and through the rest area. No evidence suggests Dickens stopped to aid the Bernsteins, called for emergency medical assistance, or otherwise notified the authorities. Dickens picked Amaral up on the westbound side of highway and asked, “Do you have the wallet?” Amaral replied that he did and handed the wallet to Dickens. After searching the wallet and returning it to Amaral, Dickens explained that he had driven through the rest area to make sure “everything was taken care of.” They then drove to the home of Dickens's brother, where Amaral removed cash, traveler's checks, and one credit card from Bryan's wallet. Dickens and Amaral burned the wallet and its remaining contents. They split the cash, Amaral pocketed the credit card, and they later destroyed the traveler's checks.

At approximately 9:40 p.m., a deputy sheriff drove into the rest area and found the Bernsteins lying on the ground in front of their vehicle. Laura was dead. Bryan, suffering from a gunshot wound to the head, was semiconscious, thrashing around, and moaning in pain. Bryan told the deputy that he had been threatened with a gun, attacked, and thought he was shot. Bryan died shortly thereafter.

On September 11 (the morning following the murders), Amaral unsuccessfully attempted to use Bryan's credit card at a local K–Mart. That evening, Dickens rented a room at a Motel 6, where he and Amaral spent the night. Early the next morning, Dickens and Amaral parted company. Dickens drove to Carlsbad, California, and Amaral went back to his mother's house.

They met up again in March 1992. At that time, Amaral moved in with Dickens for one to two weeks in a San Diego, California apartment. Amaral's mother, finding that Amaral had left her home, reported Amaral as a runaway and gave Dickens's address to the police. The police conducted an investigation into sex abuse charges against Dickens. San Diego police officers eventually arrested Dickens on charges of sexually abusing Amaral (and other boys) and assault with a deadly weapon.⁴ During an interview concerning the alleged abuse, Amaral told officers that he and Dickens had been involved in a double homicide in Yuma.

In April 1992, after further investigation, Dickens was indicted for two counts of premeditated first-degree murder, two counts of felony first-degree murder, one count of conspiracy to commit first-degree murder, one count of conspiracy to commit armed robbery, and two counts of armed robbery. After a trial, he was acquitted of premeditated murder and conspiracy to commit murder but convicted of the felony murders and armed robberies of Bryan and Laura Bernstein, as well as conspiracy to commit armed robbery. Finding no mitigating factors sufficient to call for leniency, the district court sentenced Dickens to death on the felony murder counts.⁵ The court further ordered that, if the sentences were ever reduced, the sentences would be served consecutively. The court also sentenced Dickens to fourteen years' imprisonment on the conspiracy and armed robbery convictions, to be served consecutively to the death sentences.

Dickens applied for post-conviction relief from the trial court, which the trial court denied. Dickens then appealed his conviction and sentence to the Arizona Supreme Court. That court affirmed, noting that overwhelming evidence supported the conviction and capital sentences and emphasizing that “this is not a case of lingering doubt.” State v. Dickens, 187 Ariz. 1, 926 P.2d 468, 493 (1996) (in banc). Dickens subsequently filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 with the U.S. District Court for the District of Arizona, which the district court denied. We review de novo the district court's order denying the petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.2008). Because the relevant state court determination for a habeas petition is the last reasoned state court decision, our review focuses on the Arizona Supreme Court's decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.2008) (citing Ylst v. Nunnemaker, 501...