Lankford v. Arave

• Decision Date: 07 November 2006
• Docket Number: No. 99-99015.,99-99015.
• Citation: 468 F.3d 578
• Parties: Mark Henry LANKFORD, Petitioner-Appellant, v. Arvon J. ARAVE, Warden, Idaho State Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

468 F.3d 578

Mark Henry LANKFORD, Petitioner-Appellant, v. Arvon J. ARAVE, Warden, Idaho State Correctional Institution, Respondent-Appellee.

No. 99-99015.

United States Court of Appeals, Ninth Circuit.

Argued November 15, 2005.

Submitted October 30, 2006.

Filed November 7, 2006.

Andrew Parnes, Ketchum, ID, Charles F. Peterson, Boise, ID, for the appellant.

LaMont Anderson, Deputy Attorney General, Boise, ID, for the appellee.

Appeal from the United States District Court for the District of Idaho; Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. No. CV-92-00321-S-WFN.

Before: REINHARDT, W. FLETCHER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

In this pre-AEDPA case, we are called upon to review counsel's performance in a twenty-two year old capital murder trial. Finding that the record is clear that counsel requested critical jury instructions that were correct under federal law but clearly in error under Idaho law and that the error was not harmless, we reverse the judgment of the district court and grant the writ.

I. FACTS AND PROCEEDINGS

Robert and Cheryl Bravence were reported missing when they failed to arrive at a relative's house following an extended camping trip in the summer of 1983. One week later, officials discovered their van abandoned at a Los Angeles bus terminal. In September, hunters found the couple's remains in a remote Idaho campground, not far from their last known campsite. The skulls of both were badly damaged, indicating they had died of blunt trauma to the head.

Two brothers, Mark and Bryan Lankford, were arrested for the murders. Investigators found Mark's car about a quarter of a mile from the victims' bodies and his handwriting on credit slips for food and lodging purchased with the victims' stolen credit cards. Investigators found both brothers' fingerprints in the Bravences' abandoned van, and they found Mr. Bravence's knife—with Bryan's initials newly carved into the scabbard—in Bryan's possession.

The brothers were convicted, in separate trials, and sentenced to death on the same day. Bryan's sentence was overturned on appeal based on the sentencing agreement he received in return for his testimony against Mark.¹ Although there was strong circumstantial evidence connecting the Lankfords to the murders, there were no witnesses to the crime, and no murder weapon was discovered. Bryan's testimony was critical to establishing the government's theory that Mark actually killed the Bravences. At Mark's trial, the state relied heavily on Bryan's uncorroborated eyewitness testimony that Mark committed the murders, beating the Bravences to death with a small club or nightstick. When interviewed by police, Bryan claimed that both brothers went to the campsite. While Bryan engaged the campers in conversation,

Mark came running in to the camp and told the man to get down on the ground so he did and Mark pulled out a stick like a night stick that a policeman wears but only about a foot long and hit the man on the back of the neck [k]nocking him out he hit the man at least twice and the lady came up a few seconds latter [sic] and Mark told here [sic] to get down on the ground also and she did and then he hit her once I think . . . .

At Mark's trial, Bryan claimed Mark hit Robert Bravence "twice. It could have been once." At his own trial, Bryan described one blow and added, "I think he struck the man another time." He said the blows were aimed "both times in the back of the neck actually. Not in the head. Kind of across, you know, across the neck in the back." He testified that Mark then struck Cheryl, also "across the back of the neck," "one time as I can remember," "only once. . . . [I]t could have been more. I don't know." Although Bryan admitted that his emotions might have interfered with his perception, in both his trial and in Mark's trial he maintained that Mark hit the couple in the back of the neck, striking Robert twice and Cheryl once. Throughout the two trials, and in statements to investigators, Bryan described the murder weapon variously as possibly a "pipe," "sort of a nightstick" made of wood, "a little limb deal," and a "little club" only twelve inches long. Investigators found a nightstick in Mark's abandoned car, but could not tie it to the murders and did not introduce it into evidence.

Mark did not testify at either trial, but he maintained (in statements to his attorney and to the police) that Bryan had confessed to committing the murders and enlisted his help to hide the bodies. Mark claimed that Bryan went to the couple's camp while the brothers were separated and attacked the campers, crushing their skulls with a large rock. Mark said the brothers had traveled from Texas to Idaho because Mark was trying to get away from what he perceived to be his "materialistic" life in Texas, while Bryan wanted to escape an impending arrest for parole violations. They camped in Idaho at a remote site near Grangeville. After Bryan decided he wanted to return to Texas, Mark left Bryan to hitchhike his way into town. He gave Bryan fifty dollars, told him not to do anything "stupid," and started walking back to the campsite. Before he reached the site some miles away, Bryan drove up in the stolen van. He initially refused to tell Mark how he stole the van, exclaiming "I got it. That's what counts" and complaining "what are all these questions, I told you, don't worry about it!" Finally after several questions, Bryan told Mark about his attack on the Bravences, claiming he hit Robert "in the head with my shotgun stock. I didn't hit him too hard, just to knock him out. I pinched his leg and he didn't move so I thought he was out of it." When Cheryl appeared, he struck her, too "but not as hard. She was out like a light." Mark insisted the two return to the Bravences' camp, telling Bryan "[I]t's not too late to save your ass, maybe." As the two neared the site, Bryan grew increasingly nervous. According to Mark, "[Bryan's] driving was getting reckless and he was chain-smoking the entire time." "The closer we got to the place, the more nervous [Bryan] became." At the site, Mark immediately spotted the two figures, each lying with its head in a pool of blood. He checked for pulses and told Bryan "they're both dead." Bryan replied "Are you sure?" "They can't be!" Mark then confronted Bryan: "shotgun butt? Tell me the truth." "It was just like I said," Bryan explained,

But after I hit the woman, the man started trying to get up, so I hit him again. He went down, but was still moving a little. I hit him again, but he wouldn't knock out. So I saw this rock, I picked it up and dropped it on his head twice. He stopped moving. I picked it (rock) up again and hit the woman.

After Bryan and his brother were convicted in 1984, Bryan recanted his testimony against Mark on multiple occasions. He also recanted his recantations. In a conversation with a newspaper reporter, in a written statement after his own sentencing, and again at a hearing on Mark's second motion to reopen, Bryan admitted responsibility for the murders, claiming he killed the Bravences with a rock. Bryan contacted a local reporter in June of 1984, after the brothers had been convicted, but before either was sentenced. In October of 1984, at a hearing on Mark's first motion for a new trial, the reporter testified that Bryan telephoned him to confess, saying he "[w]anted the truth to come out," and admitting that he killed the Bravences by knocking Mr. Bravence unconscious with a stick and then beating them both with a rock. In this version of Bryan's story, Mark was not on the scene. Bryan also testified at Mark's hearing, admitting to the confession but claiming it was a lie that Mark directed him to make so "he would get out, therefore, they would have to let me out."

Later, in 1985, Bryan wrote a letter to Mark's counsel again accepting full responsibility. This prompted a subsequent hearing on Mark's second motion for a new trial. This time Bryan testified that he entered the Bravences' camp alone, carrying a 12-gauge shotgun, and ordered the couple to lie down. He crushed their skulls with "a rock, a large boulder" that was "about a foot in diameter [and] probably weighed about thirty-five or forty pounds or more." He struck each camper three or four times, and then walked back to the road to enlist Mark's help in hiding the bodies. Bryan described the Bravences' campground and his attack on the campers in detail, and admitted that his earlier testimony against Mark was an attempt to "save [him]self." The court denied Mark's motions for a new trial. In 1998, while he was awaiting resentencing, Bryan again contacted Mark's counsel, asking to speak with him. Bryan's lawyer objected to the proposed interview, threatening to withdraw if Bryan insisted upon meeting with Mark's attorney. As late as April 2003 in a letter to Mark's appellate counsel, Bryan continued to assume full responsibility, confessing that he struck both the Bravences "several times" with "a head size rock."

Mark pursued his state appeals, post-conviction relief, and state habeas relief, then (after several false starts) he filed a federal habeas petition. His ineffective assistance claims were initially dismissed because they had not been properly presented to the Idaho courts. However, the parties stipulated to an evidentiary hearing on Sixth Amendment claims after we ruled in Hoffman v. Arave, 236 F.3d 523 (9th Cir.2001), that Idaho procedural rules for state habeas claims "frustrate[d] [prisoners'] exercise of a federal right" and were "inadequate to preclude federal [review]." Id. at 531 (internal quotation marks omitted).

Among the grounds raised in his state and federal habeas proceedings, Mark contended that ineffective assistance from his trial counsel, Gregory FitzMaurice, deprived him of his Sixth Amendment right to counsel. Mark argued that FitzMaurice failed to consult with an independent forensic...