Leavitt v. Arave

• Decision Date: 17 May 2011
• Docket Number: No. 08–99002.,08–99002.
• Citation: 646 F.3d 605
• Parties: Richard A. LEAVITT, Petitioner–Appellee,v.Arvon J. ARAVE, of the Idaho State Prison, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

646 F.3d 605

11 Cal. Daily Op. Serv. 5847

2011 Daily Journal D.A.R. 7030

Richard A. LEAVITT, Petitioner–Appellee,

v.Arvon J. ARAVE, of the Idaho State Prison, Respondent–Appellant.

No. 08–99002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 13, 2009.Filed May 17, 2011.

L. LaMont Anderson (argued), Deputy Attorney General, Chief, Capital Litigation Unit, Criminal Law Division, Boise, ID, for respondent-appellant and Lawrence G. Wasden, Attorney General of Idaho, Boise, ID.David Z. Nevin (argued), Nevin, Benjamin, McKay, & Bartlett, LLP, Boise, Idaho and Andrew Parnes (argued), Ketchum, ID, for petitioner-appellee.Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. CV–93–00024–S–BLW.Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and PAMELA ANN RYMER, Circuit Judges.Opinion by Chief Judge KOZINSKI; Dissent by Judge REINHARDT.

OPINION

KOZINSKI, Chief Judge:

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood—just as his ex-wife had seen him do to “play[ ] with the female sexual organs of a deer.” State v. Leavitt ( Leavitt I ), 116 Idaho 285, 775 P.2d 599, 602 (1989). We decide whether Leavitt's lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

Facts

Our first opinion in this case recounts the facts of Leavitt's crime and trial. See Leavitt v. Arave ( Leavitt III ), 383 F.3d 809 (9th Cir.2004). We repeat only those relevant to this appeal. Jay Kohler and Ron Hart represented Leavitt at trial and sentencing. After the jury convicted Leavitt of murder, Kohler and Hart moved for appointment of a mental health expert to evaluate Leavitt for sentencing purposes. The trial court granted the motion and appointed Dr. David Groberg, a forensic psychologist, to perform the evaluation.

Dr. Groberg diagnosed Leavitt with antisocial personality disorder and intermittent explosive disorder. He reported that Leavitt was otherwise “of average intelligence with no serious deficits in his cognitive abilities.” Although he opined that these disorders rarely have a physiological cause, Dr. Groberg recommended that Leavitt receive neurological testing to be sure. Kohler and Hart moved for such an examination, which the trial judge granted.

Dr. Jaynes's neurological examination of Leavitt revealed “no evidence of higher cerebral dysfunction” nor any “objective neurological deficit.” Nevertheless, Dr. Jaynes believed that Leavitt's CT scan showed a “very slight cortical cerebral atrophy.... [that] may or may not have an effect on his cognative [sic] function.” Based on this finding, Dr. Jaynes suggested further testing. The trial judge denied the motion for an MRI, stating that additional mental health evidence would not be a significant factor in sentencing. At the conclusion of the hearing, the trial judge found that the aggravating factors outweighed the mitigating evidence and sentenced Leavitt to death.

David Parmenter then replaced Kohler and Hart as Leavitt's counsel. Parmenter represented Leavitt in his appeal to the Idaho Supreme Court and succeeded in having the death sentence vacated. On remand, at the second sentencing hearing, Parmenter made a strategic decision to focus on convincing the judge that Leavitt was a “good guy” rather than pursue the mental health angle that had proven unsuccessful at the first sentencing. Despite this change in strategy, the trial court again sentenced Leavitt to death, and this time the state supreme court affirmed. State v. Leavitt ( Leavitt II ), 121 Idaho 4, 822 P.2d 523 (1991).

After exhausting his direct appeals and state collateral review, Leavitt petitioned for a writ of habeas corpus claiming Parmenter was ineffective for failing to investigate his mental health. The district court granted Leavitt's request for the MRI that the state court had denied, and the experts found that it looked normal.

The district court dismissed Leavitt's claims as procedurally defaulted, but we reversed and remanded for the district court to consider Leavitt's ineffectiveness claims. Leavitt III, 383 F.3d at 814. On remand, the state moved for an additional MRI because the defense never disclosed the results of its earlier test. The new MRI showed white matter hyperintensities (WMHs) in Leavitt's brain, which could indicate an organic cause of his personality disorders. Based on this evidence, the district court concluded that Parmenter had been ineffective in failing to investigate Leavitt's mental health before the second sentencing hearing, specifically in failing to renew the request that the court obtain an MRI. The district court granted a conditional writ of habeas and the state appeals.

Analysis

We review de novo the district court's grant of his petition for writ of habeas corpus. See Martinez–Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.1996). “To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002). Clear error review is “significantly deferential” and requires us to accept the district court's findings absent a “definite and firm conviction that a mistake has been committed.” Rhoades v. Henry, 596 F.3d 1170, 1177 (9th Cir.2010) (quoting Silva, 279 F.3d at 835) (internal quotation marks omitted). Because Leavitt filed his original habeas petition in the district court before the effective date of AEDPA, its provisions do not apply. Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). To establish ineffective assistance of counsel, Leavitt must show both that his counsel's performance was objectively deficient and that it prejudiced his sentencing. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We review the district court's determination as to both of these issues de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986).

1. Deficient Performance

Judicial scrutiny of counsel's performance is highly deferential. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”). A defense lawyer must make reasonable investigations that, at a minimum, permit informed decisions about how best to represent his client. Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). But “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

Here, Parmenter made a thorough investigation in preparation for the sentencing hearing. He met with Leavitt just a few days after he was appointed. He discussed the case with prior counsel and reviewed all transcripts and records from the prior proceedings. He spoke with Leavitt's mother and father “many more than 25” times. He interviewed Leavitt's brothers and sister, and “had many conversations” with Leavitt's ex-wife. Parmenter also interviewed several prison guards to gather information about Leavitt's behavior while incarcerated. This case thus does not present the typical capital case ineffectiveness situation where counsel scrambled to prepare just before the penalty phase, or failed to investigate entire areas of mitigation. See, e.g., Hamilton v. Ayers, 583 F.3d 1100 (9th Cir.2009).

Petitioner nonetheless argues Parmenter was ineffective for failing to gather additional mental health evidence for the second sentencing hearing. We reject this argument because the decision to forego further investigation into Leavitt's mental health condition was reasonable in light of counsel's knowledge of what had transpired at, and in preparation for, the initial sentencing hearing.

To begin with, Parmenter knew that Kohler and Hart had already spent significant time investigating mental health evidence during the course of their representation. All of Leavitt's prior mental health records, two from licensed psychologists and one from a psychiatrist, diagnosed him with a personality disorder, without suggesting any possibility of an organic brain injury. Dr. Groberg, a psychologist retained specifically to gather mitigation evidence, also diagnosed Leavitt with a personality disorder. Original counsel requested a second expert, Dr. Jaynes, to conduct more testing. Leavitt's EEG came back completely normal, but the CT scan revealed a “very slight” cortical atrophy that suggested a “possibility” of disease. But even Dr. Jaynes, who identified this abnormality, concluded that there was no “objective neurological deficit on examination” nor any “evidence of higher cerebral dysfunction.”

“While a lawyer is under a duty to make reasonable investigations, a lawyer may make a reasonable determination that particular investigations are unnecessary.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998); see also Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1406–07, 179 L.Ed.2d 557 (2011). Parmenter's review of prior counsel's efforts provided an informed basis for him to decide not to investigate further. The dissent dismisses this conclusion as “appellate factfinding.” Dissent at 619. But our job is not to divine Parmenter's actual reasons for failing to seek additional testing, but rather to “affirmatively entertain the range of possible ‘reasons [Leavitt's] counsel may have had for proceeding as [he] did.’ ” Pinholster, 131 S.Ct. at 1407 (emphasis added).

Leavitt argues that Parmenter could not have made a reasonable strategic decision to forgo further investigation because Dr. Jaynes's...