Jones v. Ryan

• Citation: 1 F.4th 1179
• Decision Date: 28 June 2021
• Docket Number: No. 18-99005,18-99005
• Parties: Danny Lee JONES, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

1 F.4th 1179

Danny Lee JONES, Petitioner-Appellant,

v.Charles L. RYAN, Respondent-Appellee.

No. 18-99005

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2021 San Francisco, California

Filed June 28, 2021

Amanda Bass (argued) and Letitia Marquez, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Morgan Christen, Circuit Judges

THOMAS, Chief Judge:

Danny Lee Jones, an Arizona inmate on death row, appeals the district court's denial of his petition for writ of habeas corpus on remand from this court and the Supreme Court of the United States. Applying the appropriate standards pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we conclude that Jones was denied the effective assistance of counsel at sentencing. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

I¹

A

On March 26, 1992, in Bullhead City, Arizona, Jones and his friend Robert Weaver spent the day drinking and using crystal methamphetamine in Weaver's garage. At some point, a fight broke out, and evidence at trial indicated that Jones hit Weaver over the head multiple times with a wooden baseball bat, killing him. Jones then went inside the house where he encountered Weaver's grandmother, Katherine Gumina. Jones struck Gumina in the head with the bat and knocked her to the ground. Jones then made his way to a bedroom where he found Tisha Weaver, Weaver's seven-year-old daughter, hiding under the bed. Evidence showed that Jones hit Tisha in the head with the bat, and either strangled her or suffocated her with a pillow. Jones fled to Las Vegas, Nevada, where police eventually arrested him. He was indicted in Arizona on two counts of murder in the first degree, and one count of attempted murder.²

B

A public defender was assigned to Jones's case. At the time, the public defender had been an attorney for a little more than three years, and he had never been lead attorney on a capital case. He requested $5,000 from the trial court for expert witnesses. The court authorized $2,000, which the public defender split between a crime scene investigator and an addictionologist.

The jury convicted Jones on all counts. Judge James Chavez scheduled the sentencing hearing for three months later. About six weeks before the hearing, counsel took his first trip to Reno, Nevada, in order to speak with Jones's mother, Peggy Jones³ , and Jones's second step-father, Randy Jones, in order to investigate potential mitigation evidence.

At sentencing, the public defender presented testimony from two witnesses: investigator Austin Cooper and Randy Jones. Cooper testified about evidence regarding an alleged accomplice. Randy explained that he married Peggy when Jones was seven years old.⁴ He explained that Peggy gave birth to Jones when she was only fifteen years old and had numerous complications during the pregnancy and delivery. Randy testified that Jones suffered multiple head injures when he was growing up, and that when Jones was thirteen or fourteen his personality began to change drastically. Jones started lying, cutting classes at school, drinking, and doing drugs. Jones's first step-grandfather introduced him to marijuana when he was about ten years old, and Jones was an alcoholic by the time he was seventeen.

The trial court appointed the Chief of Forensic Psychiatry for the Correctional Health Services in Maricopa County, Dr. Jack Potts, to examine Jones and provide a report to the court pursuant to Rule 26.5 of the Arizona Rules of Criminal Procedure. Defense counsel called Dr. Potts to testify at sentencing. Dr. Potts stated that in conducting his review, he spent four hours interviewing Jones in prison, one and a half of which were spent administering a personality test. He also spoke to Jones for a couple of hours the day before testifying at the sentencing hearing. He interviewed Peggy by phone for thirty minutes, and he spoke to Randy for one hour the day before testifying. During Dr. Potts's testimony, the following colloquy took place:

Q. Do you feel you have been provided with adequate data, coupled with your in-person examination of the defendant, to make a conclusion for mitigating findings that you did?

A. ... I believe everything I reviewed and what I have heard about the case and reviewed with the defendant, his comments to me. I would have liked, and I think I have—I think it would be valuable to have had some neurologic evaluations, not—by a neurologist, clinical exam, such as a CAT scan

, possibly an MRI, possibly EEG, possibly some sophisticated neurological testing, because I think there's very strong evidence that we have ..., I believe, of traumatic brain injury, and there's some other evidence that I believe we may have organic neurologic dysfunctions here that has gone on since he's been about 13. So, there's some other testing that I think would be valuable to have to pin down the diagnosis....

Q. And you think that further testing might shed some additional light on, perhaps, some of these factors you listed and maybe why Mr. Jones behaves in the way he did on March 26, 1992?

A. Yes. I think it could help in clarifying and giving us etiology as the behavioral components, the explosive outbursts, the aggression, the mood changes, and the changes that occurred in his personality as noted by his mother when he was about 13, 14 years old.

Q. In your opinion, could that information possibly provide ... a significant mitigating factor as to what would be relevant to the issues at this hearing?

A. Clearly I think it would be corroborative of my clinical impressions and my diagnostic impressions in my report.

Dr. Potts discussed the fact that Jones's first step-father physically and verbally abused Jones, and stated that it was "unequivocal" that Jones carried that abuse with him into his adult life. Dr. Potts also stated that given the long history of substance abuse and other psychological problems in Jones's family, Jones was predisposed to substance abuse or a possible affective disorder. Dr. Potts did not, however, give a specific diagnosis, but stated: "I think ... to a reasonable degree of medical certainty that the defendant suffers from a psychothymic disorder, which is a mood disorder, possibly organic syndrome, secondary to the multiple cerebral trauma

that he's had as well as the prolonged substance abuse."

Dr. Potts testified that the drugs and alcohol Jones had on the day of the murders would have had a significant effect on Jones because "it's real clear that the brain is much more susceptible when it's been injured by drugs. Furthermore, when you're on drugs, you are more susceptible to the acts of aggression under amphetamines." He further stated: "I believe in my experience in cases like this, is that had it not been for the intoxication, the alleged offense would not have occurred."

Dr. Potts also submitted a six-page report to the court. The report included: approximately two pages describing Jones's social development and history, including his medical history, one page of analysis, and one page of recommendations. Dr. Potts's report was due to the court on November 29, 1993, but he did not complete it until December 3. He was late because he did not receive the Presentence Information Report ("PSR") from the Mohave County probation department until December 1. Dr. Potts also testified at sentencing that he was under "significant time pressure" in preparing the report. Dr. Potts concluded that "Mr. Jones’ capacity to conform his conduct to that of the law was clearly impaired at the time of the offenses...." He therefore recommended that an aggravated sentence should not be imposed.

After Dr. Potts testified, counsel moved for a continuance so an expert could conduct psychological testing. Counsel stated: "It's not a delay tactic ... [I]t's not something I planned on doing until ... very recently after the report was done, after talking with Dr. Potts, after exploring all these issues." Notably, however, counsel did not speak to Dr. Potts about the report until December 7, the night before sentencing. The sentencing judge considered and rejected the motion:

THE COURT: .... I also know that there were funds made available to the defense at some point and you used them to hire [an addictionologist].... [I]f there were any follow-up questions of a psychological or neurological nature, I would think that the defense would have followed them up.

COUNSEL: But, Your Honor, respectfully, ... I didn't realize this issue was that important until Dr. Potts brought it up or I would have certainly asked for the funds earlier.

The judge found the following aggravating factors for Weaver's murder: (1) Jones "committed the offense as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value"; (2) Jones "committed the offenses in an especially heinous or depraved manner"; and (3) Jones was "convicted of one or more other homicides ... which were committed during the commission of the offense."

The judge found four non-statutory mitigating factors: (1) Jones suffered from long-term substance abuse; (2) he was under the influence of drugs and alcohol at the time of the offense; (3) he had a chaotic and abusive childhood; and (4) his longstanding substance abuse problem may have been caused by genetic factors and aggravated by head trauma

. The judge found the same aggravating and mitigating circumstances for Tisha's murder, but he also found that Tisha's having been under fifteen years old was an additional aggravating factor. The judge sentenced...