Martinez-Villareal v. Lewis

• Citation: 80 F.3d 1301
• Decision Date: 04 April 1996
• Docket Number: P,MARTINEZ-VILLAREA,94-99012,Nos. 94-99011,s. 94-99011
• Parties: 96 Cal. Daily Op. Serv. 2296, 96 Daily Journal D.A.R. 3852 Ramonetitioner-Appellee-Cross-Appellant, v. Samuel LEWIS, Respondent-Appellant-Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1301

80 F.3d 1301

96 Cal. Daily Op. Serv. 2296, 96 Daily Journal

D.A.R. 3852

Ramon MARTINEZ-VILLAREAL, Petitioner-Appellee-Cross-Appellant, v. Samuel LEWIS, Respondent-Appellant-Cross-Appellee.

Nos. 94-99011, 94-99012.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 14, 1995.

Decided April 4, 1996.

Sean Bruner, Bruner & Bowman, Tucson, Arizona, for petitioner-appellee-cross-appellant.

Bruce M. Ferg, Deputy Attorney General, Tucson, Arizona, for respondent-appellant-cross-appellee.

Appeals from the United States District Court for the District of Arizona, Richard M. Bilby, Chief District Judge, Presiding. No. CV-86-00296-RMB.

Before: D.W. NELSON, LEAVY and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge.

Arizona state prisoner Ramon Martinez-Villareal appeals the district court's rejection of his petition for writ of habeas corpus on issues relating to the guilt phase of his murder trial in the Arizona Superior Court in Santa Cruz County. Warden Samuel Lewis ("State") appeals the district court's grant of the writ on the claim of ineffective assistance of counsel at the sentencing phase of the trial. We affirm the district court's denial of Martinez-Villareal's petition as to claims relating to the guilt phase of the trial, but reverse the grant of the writ as to the penalty phase.

FACTUAL AND PROCEDURAL HISTORY

Over the weekend of October 8-10, 1982, Martinez-Villareal burglarized a residence in Tumacacori, Arizona. Among the missing items were ammunition and several high caliber rifles. Soon afterward, Martinez-Villareal and an accomplice used these weapons and ammunition to shoot two men to death at a nearby ranch. Following his arrest, Martinez-Villareal boasted that he had killed "because of his pure balls, that he was very Martinez-Villareal was convicted on two counts of first degree murder and one count of burglary. He was sentenced to death for the homicides, to a term of ten years for the burglary, and to a concurrent term of two and one-half years for a burglary to which he pleaded guilty.

macho." State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670, 673-74 , cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985).

Following an unsuccessful direct appeal to the Arizona Supreme Court, see Martinez-Villareal, 702 P.2d at 670-81, Martinez-Villareal's trial attorney, William Rothstein, filed a petition for post-conviction relief (PCR) pursuant to 17 Ariz.Rev.Stat. Ann. § 32 ("Rule 32"). The PCR petition and a subsequent motion for rehearing were denied by the trial court on April 18, 1986, and May 23, 1986, on the grounds that all the claims raised had already been considered by the Arizona Supreme Court.

On June 11, 1986, Rothstein filed with the district court a "Preliminary Petition for Writ of Habeas Corpus" which contained additional claims not raised in the first PCR petition. After the district court dismissed the preliminary habeas petition on the grounds that it contained unexhausted claims, on June 9, 1986, the Arizona Supreme Court denied review of the denial of the first PCR petition and also denied a stay of execution.

Following dismissal of an amended habeas petition prepared by Rothstein, on June 10, 1986, Arizona lawyer Carla Ryan represented Martinez-Villareal in filing a second habeas petition asserting Rothstein's ineffective assistance of counsel at every stage, as well as other unexhausted claims. The district court issued a stay of execution on June 10, 1986, and directed Martinez-Villareal to file another PCR petition on all claims, including ineffective assistance of counsel.

Ryan immediately filed a second PCR petition along with a request that a different lawyer be appointed for Martinez-Villareal. On June 10, 1988, Daniel Davis, Martinez-Villareal's new court-appointed attorney, filed an amended second PCR petition ("Davis petition"), which raised twenty issues, including Rothstein's ineffective assistance at trial and sentencing. The trial court summarily denied the Davis petition on July 12, 1988.

Davis filed a motion for rehearing on July 28, 1988. On September 27, 1988, the trial court once again "summarily dismissed" all twenty claims. The trial court ruled that under Arizona law no proceedings to assess the claims on the merits were warranted, because the petition presented no material issue of fact or law and therefore offered no colorable claims for review. See Rule 32.6(c). The Arizona Supreme Court denied review without comment, and on October 2, 1989, the U.S. Supreme Court denied the petition for certiorari. Martinez-Villareal v. Arizona, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 158 (1989).

Prompted by the Arizona Supreme Court's notice of intent to issue a new warrant of execution, the Arizona Capital Representation Project filed a third habeas petition on November 21, 1990. Sean Bruner was appointed to represent Martinez-Villareal on November 26, 1990. Bruner filed a "Motion for Discovery" in February 1991, suggesting for the first time that Martinez-Villareal might be mentally incompetent. The district court deemed this an unexhausted claim and dismissed the third habeas petition without prejudice so that the claim could be presented to the trial court.

Bruner filed a third PCR petition on June 16, 1991. This petition contained thirty-one claims, including ineffective assistance of counsel at trial and on appeal. On August 13, 1991, the third PCR petition and a subsequent motion for rehearing were summarily denied by the trial court. Twenty-eight of the thirty-one claims were found to be procedurally precluded. The remaining three "alleged 'new grounds' " presented no colorable claim for relief. On April 7, 1992, the Arizona Supreme court denied review and on October 5, 1992, the United States Supreme Court denied the petition for certiorari. Martinez-Villareal v. Arizona, 506 U.S. 893, 113 S.Ct. 267, 121 L.Ed.2d 196 (1992).

On September 4 and 11, 1991, the district court, in order to assure that the stay of Bruner filed the fourth habeas petition on March 25, 1993. The State filed a motion for summary judgment on July 30, 1993. On July 23, 1994, the district court held an evidentiary hearing on the mental competence issues and on Rothstein's alleged ineffectiveness in failing to request a psychological examination at the time of trial.

execution was still in effect, withdrew all previous orders dismissing various petitions without prejudice.

On October 20, 1994, the district court denied the petition as it related to claims relating to the validity of the convictions. However, the court granted the writ as to the sentence of death, on the grounds that Rothstein's assistance was ineffective in the penalty phase of the trial and on appeal. The court found that in the trial's penalty phase, Rothstein failed to present all of the available evidence as to Martinez-Villareal's mental state and also failed to have Martinez-Villareal's mental health investigated. Likewise, the court ruled that with respect to ineffective assistance of counsel on appeal, cause and prejudice was established "to the extent that Rothstein did not have Martinez-Villareal's mental capacity evaluated."

The timely appeal and cross-appeal give this court jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review de novo a district court's decision to grant or to deny a petition for habeas corpus. Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995). We may affirm on any ground supported by the record even if it differs from the rationale of the district court. Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 718, 133 L.Ed.2d 671, reh'g denied, --- U.S. ----, 116 S.Ct. 977, 133 L.Ed.2d 897 (1996).

PROCEDURAL DEFAULT AND INEFFECTIVENESS OF COUNSEL

The main issue in this case is whether the district court erred in granting the writ as to the sentence of death on the grounds that Rothstein's assistance was ineffective in the penalty phase of the trial and on appeal. We find that the district court improperly granted the writ. Because Martinez-Villareal has offered no cause for procedurally defaulting his claims of ineffective assistance of counsel, there is no basis on which to address the merits of his claims.

We may address the merits of a procedurally defaulted claim if the petitioner can show cause for the procedural default and actual prejudice as a result of the alleged violations of federal law. Bonin v. Calderon, 77 F.3d 1155 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 980, 133 L.Ed.2d 899 (1996). To demonstrate cause, the petitioner must show the existence of "some objective factor external to the defense [which] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1471-72, 113 L.Ed.2d 517, reh'g denied, 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991) (cause is external impediment such as government interference or reasonable unavailability of claim's factual basis). Lacking cause and prejudice, we may nonetheless consider procedurally barred claims if failure to do so would result in the conviction or execution of " 'one who is actually innocent.' " Schlup v. Delo, --- U.S. ----, ----, 115 S.Ct. 851, 864, 130 L.Ed.2d 808 (1995).

The district court erred in failing to consider procedural default when it held that the issue of Rothstein's ineffective assistance at sentencing was properly before it. The last reasoned state court opinion summarily dismissed all procedurally defaulted claims, including ineffective assistance of counsel. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593-94, 115 L.Ed.2d 706 (1991). Not only had Rothstein failed to make any ineffective assistance of counsel claims, but the Davis petition's claims as to Rothstein's ineffective assistance of cou...