Landrigan v. Schriro
| Decision Date | 08 March 2006 |
| Docket Number | No. 00-99011.,00-99011. |
| Citation | 441 F.3d 638 |
| Parties | Jeffrey Timothy LANDRIGAN, a.k.a., Billy Patrick Wayne Hill, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, Arizona Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dale A. Baich, Assistant Federal Public Defender, Phoenix, AZ, for the petitioner-appellant.
James P. Beene, Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for the respondent-appellee.
Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-96-02367-PHX-ROS.
Before MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, MICHAEL DALY HAWKINS, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, MARSHA S. BERZON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN and CARLOS T. BEA, Circuit Judges.
In this appeal, we consider whether petitioner, Jeffrey Timothy Landrigan, received ineffective assistance of counsel in the penalty phase of his capital murder trial. We conclude Landrigan has raised a colorable claim that his counsel's performance fell below the objective standard of reasonableness required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he was prejudiced by these errors. We therefore remand to the district court to conduct an evidentiary hearing on Landrigan's claim.
In 1989, Landrigan escaped from an Oklahoma prison and soon thereafter murdered Chester Dean Dyer in Arizona. He was convicted of first degree murder in Arizona state court and sentenced to death. The Arizona Supreme Court affirmed his conviction and sentence. Arizona v. Landrigan, 176 Ariz. 1, 8, 859 P.2d 111 (1993).1
Landrigan filed a petition for post-conviction relief in the Arizona Superior Court, urging that his counsel, Dennis Farrell, had been ineffective by failing to investigate and present mitigating evidence at the sentencing proceeding. Landrigan also requested an evidentiary hearing in connection with this claim. The Superior Court denied the request for the hearing and the petition, concluding that Landrigan could not argue his counsel was ineffective at sentencing because he had instructed his attorney not to present mitigating evidence. The Arizona Supreme Court summarily denied the petition.
Landrigan thereafter filed a petition for writ of habeas corpus in federal district court raising a number of claims, including ineffective assistance of counsel. Landrigan sought to expand the record to include declarations by mental health experts and persons familiar with Landrigan's background, and the district court granted this request in part. Landrigan also sought an evidentiary hearing, but the district court denied this request and also denied the petition on the merits. The district court concluded that even if Landrigan's counsel was deficient, Landrigan had not demonstrated he suffered prejudice from his counsel's shortcomings.
Landrigan appealed to this court. The district court granted Landrigan a certificate of appealability on several claims, including whether "Landrigan's trial counsel was ineffective at sentencing, depriving Landrigan of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments." A three-judge panel affirmed the district court's denial of the writ. Landrigan v. Stewart, 272 F.3d 1221, 1223 (9th Cir. 2001). We granted rehearing en banc. Landrigan v. Stewart, 397 F.3d 1235 (9th Cir. 2005).2
Since the district court's 1999 denial of the writ and Landrigan's request for an evidentiary hearing and the filing of our now withdrawn panel opinion on November 28, 2001, the Supreme Court has issued a number of significant decisions regarding ineffective assistance of counsel claims. The Court has clarified the duty of an attorney to develop and present mitigating evidence, even when dealing with capital defendants who are "uninterested in helping" or "even actively obstructive" in developing a mitigation case, Rompilla v. Beard, ____ U.S. ___, ____-____, 125 S.Ct. 2456, 2462-63, 162 L.Ed.2d 360 (2005), and also has elaborated on the appropriate measure of prejudice in a capital penalty phase proceeding, see Wiggins v. Smith, 539 U.S. 510, 534-38, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Viewing Landrigan's claim in light of these precedents, we find that Landrigan has made a colorable claim that he did not receive effective assistance of counsel in his sentencing. We therefore remand to the district court to conduct an evidentiary hearing.
We review the district court's decision to deny habeas corpus relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). Because Landrigan filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1). Under AEDPA, Landrigan is entitled to a writ if the state court's denial of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id.
The district court's decision to deny an evidentiary hearing is reviewed for an abuse of discretion. See Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). Under AEDPA, if a petitioner fails to develop in state court the factual basis for a claim, he is restricted in his ability to do so in federal court. See 28 U.S.C. § 2254(e)(2). These restrictions do not apply, however, if a petitioner exercised due diligence in state court and attempted to develop the factual basis of his claim. As the Supreme Court has explained, "a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Michael Wayne Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The Court has further noted that "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437, 120 S.Ct. 1479.
Landrigan did not "fail to develop" the factual basis for his ineffective assistance claim in state court. In his state habeas petition, Landrigan made a general claim that his counsel had failed to investigate and develop potential mitigating evidence, including his biological mother's use of drugs and alcohol during gestation, his adoptive mother's alcoholism and its adverse effect on Landrigan's upbringing, and information regarding his biological father and his family history of violence. Landrigan sought the appointment of a medical expert to assist in establishing mitigating evidence regarding the effects of drug and alcohol use on a developing fetus, and also requested an evidentiary hearing on his ineffective assistance claim. Landrigan supported his petition with various declarations by available witnesses who attested they were never contacted by Landrigan's trial attorney, and with documentary evidence regarding criminal psychobiology and congenital determinants of violence. The state court denied both the appointment of an expert and Landrigan's request for an evidentiary hearing.
Landrigan tried and failed, through no fault of his own, to develop the facts supporting his ineffective assistance claim at the state-court level. He is therefore not precluded by AEDPA from seeking an evidentiary hearing in federal court. See Earp, 431 F.3d at 1169; Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997). In such circumstances, Landrigan is entitled to an evidentiary hearing if he can establish a "colorable claim" for relief. See Earp, 431 F.3d at 1173.
The Sixth Amendment right to effective assistance of counsel extends to the sentencing phase of a capital case. Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). We analyze Landrigan's claim that he was deprived of this right pursuant to the standards set forth by the Supreme Court in Strickland: Landrigan must demonstrate that his counsel's representation "fell below an objective standard of reasonableness" and that there is a reasonable probability that counsel's unprofessional errors "undermine confidence in the outcome of the proceeding." 466 U.S. at 688, 694, 104 S.Ct. 2052.
According to the prevailing standards at the time of Landrigan's sentencing, counsel had an obligation to conduct a thorough investigation of the defendant's background. See Terry Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("T. Williams") (); Rompilla, 125 S. Ct. at 2466. As this court has also noted, when it comes to the penalty phase of a capital trial, "[i]t is imperative that all relevant mitigating information be unearthed for consideration." Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999). We begin by considering what steps Landrigan's counsel took in his investigation. See Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527 (); Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 ().
1. On the record before us, it appears that Landrigan's counsel did little to prepare for the sentencing aspect of the case. He did obtain several medical documents indicating Landrigan had a long history of substance abuse and included this information in Defendant's Sentencing Memorandum Concerning Mitigation. He also had a psychologist, Mickey McMahon, evaluate Landrigan to obtain an "initial impression," but did not provide him...
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