Mann v. Ryan, No. 09-99017

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CLIFTON, Circuit Judge
• Citation: 828 F.3d 1143
• Docket Number: No. 09-99017
• Decision Date: 15 July 2016
• Parties: Eric Owen Mann, Petitioner–Appellant, v. Charles L. Ryan, Respondent–Appellee.

828 F.3d 1143

Eric Owen Mann, Petitioner–Appellant
v.
Charles L. Ryan, Respondent–Appellee.

No. 09-99017

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 11, 2016, Pasadena, California
Filed July 15, 2016

Cary S. Sandman (argued), Federal Public Defender's Office, Tucson, Arizona; Amy Krauss, Law Office of Amy B. Krauss, Tucson, Arizona; for Petitioner–Appellant.

John Pressley Todd (argued), Assistant Attorney General; Kent Cattani, Chief Counsel; Mark Brnovich, Attorney General of Arizona; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondent–Appellee.

Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, Marsha S. Berzon, Richard R. Clifton, Consuelo M. Callahan, N. Randy Smith, Morgan Christen, Paul J. Watford, and John B. Owens, Circuit Judges.

Partial Concurrence and Partial Dissent by Chief Judge Thomas ;

Partial Concurrence and Partial Dissent by Judge Christen

OPINION

CLIFTON, Circuit Judge:

Petitioner Eric Owen Mann lured Richard Alberts and Ramon Bazurto to his house in 1989 with a promise to sell them cocaine for about $20,000. Instead, he took the money and shot both men to death. Mann was eventually arrested and tried in Arizona state court in 1994. A jury found him guilty on two counts of first-degree murder, and the trial judge sentenced him to death, noting his long criminal history and his apparent lack of remorse for the killings. Following the affirmance of his convictions and sentence by the Arizona Supreme Court, Mann filed a petition for post-conviction relief in state court in 2000 asserting, among other claims, that he had received ineffective assistance of counsel at trial and sentencing. That petition was assigned to the same judge who had presided over Mann's trial and imposed the capital sentence upon him a few years before. The judge denied in full Mann's petition for post-conviction relief, and the Arizona Supreme Court thereafter denied Mann's petition for review. Mann then filed a petition for habeas corpus under 28 U.S.C. § 2254 in federal district court. That petition was denied, and Mann appeals.

Of primary importance here is Mann's argument that the state post-conviction court applied the wrong standard to his claim of ineffective assistance of counsel at sentencing, in violation of Supreme Court precedent in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because of this error, Mann argues, our review of that claim should not be constrained by the Antiterrorism and

828 F.3d 1147

Effective Death Penalty Act of 1996 (AEDPA), which requires federal courts to defer to state court decisions on the merits of habeas corpus claims unless they are contrary to clearly established federal law. 28 U.S.C. § 2254(d). After careful review of the underlying state court decision, we conclude that its invocation of the Strickland prejudice standard might have been ambiguous but was not clearly incorrect. As a result, Mann's petition presents us with the question: When, in the absence of clarity, can we conclude that a state court has applied the wrong standard to review a Strickland claim raised in a petition for post-conviction relief? The answer is that we must approach this question with the deference AEDPA requires and grant habeas relief only if no fairminded jurist could conclude that the adjudication was consistent with clearly established Supreme Court precedent. See Harrington v. Richter , 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Here, fairminded jurists could conclude that the state court's review of Mann's claim of ineffective assistance of counsel comported with Strickland. Applying AEDPA deference to Mann's claims, we conclude that the state post-conviction court's denial of post-conviction relief was not contrary to, or an unreasonable application of, federal law. We therefore affirm the district court and deny Mann's petition for habeas relief.

I. Background

A. The murders

In the fall of 1989, a few weeks before Thanksgiving, Mann arranged to sell Richard Alberts a kilogram of cocaine in exchange for about $20,000. Mann never intended to provide Alberts with the drugs. Instead, he planned to hand Alberts a shoebox full of newspaper and take his money in exchange. He knew he would have to kill Alberts after this transaction took place.

On the evening of Thanksgiving Day, Alberts arrived at Mann's house to complete the sale, accompanied by another man, Ramon Bazurto. Mann's girlfriend, Karen Miller, was also at the house to provide Mann with backup. Miller testified that when Mann saw Alberts had brought along someone else, he became upset, but after a brief hesitation decided he would nevertheless go through with his plan to rip Alberts off. The three men and Miller went to Mann's bedroom, where Alberts handed Mann the money and Mann gave Alberts the newspaper-filled shoebox. When Alberts lifted the top of the box, Mann shot him and then Bazurto.

Alberts died almost instantly from a shot through the heart. Bazurto took longer to die. He fell onto his back and lay on the ground, attempting to move his hand towards the pistol he was carrying in his waistband. According to Miller's testimony, Mann stood over Bazurto's prone body and described what was happening as Bazurto lost motor control and died. Miller testified that Bazurto continued to move for three to five minutes after being shot.

Mann then called a friend, Carlos Alejandro, to help him dispose of the two bodies. They dumped the bodies on the side of a gravel road. The next day, Mann and Miller cleaned the apartment and patched the walls where the bullets that had killed Alberts and Bazurto had entered. Mann gave Alberts's car to a friend and disposed of his guns and the recovered bullets. When police later questioned Mann as to the whereabouts of Alberts and Bazurto, Mann responded that the two men had come to his house on the evening of the murders to conduct a drug deal, but had left after Mann and Alberts failed to agree on a price for the drugs.

828 F.3d 1148

The case remained unsolved for four years. Then, in late 1993, Miller ended her relationship with Mann because of increasing domestic violence. She told the police about the murders in January of 1994. Mann was arrested after the police corroborated Miller's story with Alejandro and the man to whom Mann had sold Alberts's car.

B. Trial

Mann's jury trial took place over five days in the Superior Court of Pima County, Arizona. Judge John F. Kelly presided. David Sherman, a criminal defense attorney in private practice, was appointed as Mann's counsel. Sherman pursued the theory that Mann had acted in self-defense.

The day before trial commenced, Sherman told the judge that he would not be calling any witnesses “except for Mr. Mann.” Sherman successfully persuaded the trial court that, should Mann testify, his previous conviction for burglary would be excluded from evidence and any mention of his previous conviction for felony possession of a firearm would be limited to the fact that he had been convicted of a felony.

At trial, the state presented testimony from six witnesses, including Miller and Alejandro, both of whom had been granted immunity from prosecution for their roles in the crime. Miller and Alejandro testified that the murders had been premeditated. Mann ultimately did not testify, and Sherman did not call any witnesses of his own, instead attempting to discredit the state's witnesses through cross-examination. The jury found Mann guilty of two counts of first-degree murder on November 1, 1994.

Two weeks later, the court granted Sherman's request that Mann undergo psychological evaluation prior to sentencing. Sherman recommended that the court appoint Dr. Todd Flynn, a psychologist with the court psychological clinic. With the consent of the attorney for the state, the judge agreed to appoint Dr. Flynn to perform an evaluation.

Dr. Flynn diagnosed Mann with alcohol abuse or dependence, polysubstance abuse or dependence, and antisocial personality disorder. He also noted that Mann had scored highly for “acting out” on the Minnesota Multiphasic Personality Inventory-2 scale, and made the following observation:

As a group, people with acting out as a primary psychological defense tend to be emotionally shallow, deficient in their capacity for empathy, poor at frustration tolerance, unwilling or unable to delay gratification, and poor at anticipating the consequences of future actions. When combined with a history of victimization of others, this group becomes the worst of offenders because there is little sense of conscience or inhibition to stop the criminal lifestyle. Those who act out intensively and in a criminal manner may also qualify for the designation of Psychopath ....

The report concluded, “It is more probable than not that Mr. Mann fits this designation.”

The state's presentence report concluded that three aggravating factors were present in the crime: it was committed for pecuniary gain, there were two victims, and Bazurto's murder was committed...