McGill v. Shinn

• Decision Date: 21 October 2021
• Docket Number: No. 19-99002,19-99002
• Citation: 16 F.4th 666
• Parties: Leroy MCGILL, Petitioner-Appellant, v. David SHINN, Director, Arizona Department of Corrections; Walter Hensley, Warden, Arizona Department of Corrections - Eyman Complex, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.4th 666

Leroy MCGILL, Petitioner-Appellant,

v.David SHINN, Director, Arizona Department of Corrections; Walter Hensley, Warden, Arizona Department of Corrections - Eyman Complex, Respondents-Appellees.

No. 19-99002

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 20, 2021 Pasadena, California

Filed October 21, 2021

Jennifer Y. Garcia (argued) and Sara Chimene-Weiss, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Erin D. Bennett (argued), Assistant Attorney General; Lacey Stover Gard, Deputy Solicitor General/Chief of Capital Litigation; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellees.

Before: Jay S. Bybee, Milan D. Smith, Jr., and Daniel P. Collins, Circuit Judges.

Concurrence by Judge Collins ;

Partial Concurrence and Partial Dissent by Judge Milan D. Smith, Jr.

BYBEE, Circuit Judge:

Petitioner Leroy McGill was sentenced to death in 2004 for the murder of his former housemate, Charles Perez. The Arizona Supreme Court affirmed McGill's conviction and sentence on direct review, and the state trial court denied post-conviction relief. McGill now appeals the district court's denial of his petition for habeas relief under 28 U.S.C. § 2254. The district court granted a certificate of appealability as to trial counsel's performance at the penalty phase of trial but denied a certificate as to McGill's remaining claims.

We evaluate McGill's claims under the Antiterrorism and Effective Death Penalty Act. Applying that deferential standard to his certified claim, we conclude that in denying McGill relief, the state court reasonably applied clearly established federal law and relied upon reasonable factual determinations. We further find that McGill has failed to make a substantial showing that he was denied a constitutional right to effective assistance of counsel at the guilt phase and therefore deny a certificate of appealability as to that claim. We grant a certificate of appealability on McGill's ex post facto claim but deny relief on the merits. Accordingly, we affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

In July 2002, McGill and his girlfriend, Jonna (Angel) Hardesty, were nearly homeless and temporarily living with a friend in the Sunnyslope area of Phoenix. State v. McGill , 213 Ariz. 147, 140 P.3d 930, 933 (2006) (en banc) ( McGill I ). The couple had recently been ousted from a nearby duplex apartment owned by Jack Yates after Charles Perez, another occupant of the duplex, accused McGill and Hardesty of stealing his shotgun. Id. In the early morning hours of July 13, 2002, McGill walked to the Yates duplex to teach Perez and Yates "a lesson, that nobody gets away with talking about [McGill and Hardesty]." Id. (alterations in original). McGill was confronted by Eddie Keith who lived in the duplex with his wife and two daughters. McGill warned Keith to get his family out of the duplex, and Keith obediently fled. Id. at 933–34.

When McGill entered the duplex, he found Perez sitting on a couch in the living room with his girlfriend, Nova Banta. Id. at 934. McGill admonished the couple not to "talk behind other people's backs," and before either could respond, he doused the pair with gasoline and threw a lit match at them. Id. Flames engulfed Perez and Banta, who ran screaming from the apartment. Id. First responders transported Perez and Banta to the hospital with third-degree burns covering more than seventy-five percent of their bodies. Id. Perez died the following day. Id. Banta survived, identified McGill to her nurse as the man who set her on fire, and later identified McGill at trial. Id. Fortunately, the other residents of the duplex escaped the blaze without injury.

In March 2003, a Maricopa County grand jury indicted McGill on charges of first-degree murder for Perez's death, attempted first-degree murder for his attack on Banta, and several counts of arson and endangerment. Id. Shortly thereafter, the state gave notice of its intent to seek the death penalty under then- Arizona Revised Statute § 13-703.01(B) (2003).¹ The state raised three statutory aggravating factors under Ariz. Rev. Stat. § 13-703(F) (2003): McGill's convictions for armed robbery, a "serious offense" under the statute; McGill's knowing creation of a "grave risk of death" to others during the crime; and McGill's commission of the crime in an especially heinous, cruel, or depraved manner. See id. § 13-703(F)(2), (3), (6).

Attorney Maria Schaffer of the Office of the Legal Advocate was appointed to represent McGill, and Elizabeth Todd was appointed as second chair. The defense team also retained Mitigation Specialist Marianne Brewer and private investigator Mark Mullavey. Counsel submitted several expert-witness requests to her supervisor at the Office of the Legal Advocate, Susan Sherwin, including requests for a neuropsychologist, addictionologist, and a domestic violence specialist. Director Sherwin approved the requests for a neuropsychologist and addictionologist but denied Schaffer's request for a domestic violence expert. Ultimately, counsel retained neuropsychologist Dr. Richard Lanyon and addictionologist Dr. Mace Beckson. Schaffer had wanted to retain Dr. Lesley Hoyt-Croft as McGill's addictionologist, but Sherwin refused to authorize it because Hoyt-Croft was a psychologist, not a medical doctor. Only Dr. Lanyon would testify at trial, however, because Dr. Beckson felt he could not offer helpful testimony unless McGill accepted responsibility for his actions, which McGill refused to do.

B. The Trial

McGill was tried in October 2004.² At the guilt phase, the state presented evidence that witnesses saw McGill at the Yates duplex before the fire; McGill warned Keith to flee the duplex; and McGill mixed styrofoam pieces into the gasoline before dousing Perez and Banta, believing it would create a pasty substance that would be more difficult to extinguish. See McGill I , 140 P.3d at 934. After brief deliberations, the jury found McGill guilty on each charge in the indictment. At the aggravation phase, the jury determined beyond a reasonable doubt that sufficient aggravating factors existed under Ariz. Rev. Stat. § 13-703(F) to consider imposition of the death penalty.

Counsel presented mitigation evidence over the course of a four-day penalty-phase trial. The mitigation presentation focused on McGill's life history, including his dysfunctional childhood and removal from his home; early drug use and juvenile delinquency; drug and alcohol addiction

later in life, including chronic methamphetamine use; a purported brain injury suffered in a car accident in the 1980s; and the dysfunctional and abusive relationship between McGill and his girlfriend, Jonna Hardesty. Mitigation Specialist Brewer and several of McGill's family members explained the dysfunction during McGill's childhood. The story was a difficult one. McGill's father was an alcoholic and was physically violent with McGill's mother, Ann. They divorced about the time McGill was born, and Ann took the five children from California to Arizona. McGill's father went to Arizona and took the children from Ann and returned to California. Ann regained custody and returned to Arizona, where she worked multiple jobs to support herself and the children. After another marriage, divorce, and a sixth child, Ann took her children to Texas. While she worked, McGill and his siblings were left to fend for themselves.

The children were removed from the home on several occasions because Ann was unable to care for them. In 1970, when McGill was eight years old, he and his brothers Cordell and Lonnie were placed briefly in foster care. Shortly thereafter, McGill and Cordell were transferred to Buckner's Boys Ranch, a harsh and structured environment, in San Antonio, Texas. Two years later, McGill was released to his mother. But by 1976, Ann was again unable to care for McGill and applied for his admission to Boysville, another all-boys reform school in San Antonio.

Witnesses testified that McGill's fractured home life affected him well into adulthood. McGill began using drugs and alcohol at a young age. By adulthood, McGill was a chronic, daily methamphetamine user. Methamphetamine affected McGill's behavior, sleep patterns, and decision-making ability. Counsel connected McGill's drug use to his criminal history, especially two armed robberies. The defense attempted to mitigate the effects of those convictions by framing them through the lens of substance abuse. To that end, the defense elicited testimony that McGill was intoxicated and nearly homeless at the time, and that he accepted responsibility for the robberies by pleading guilty and serving his sentence. After McGill completed his sentence, he reconnected with family and held a job. Unfortunately, any progress McGill made was undercut by his relationship with Hardesty, who was described by his family as "one of the most evil people" they had ever met. Hardesty also enabled McGill's chronic methamphetamine use, which further disrupted his life.

McGill's expert neuropsychologist, Dr. Richard Lanyon, provided useful context for McGill's cognitive function, history of substance abuse, and relationship with Hardesty. Dr. Lanyon administered a battery of cognitive tests, which revealed slight impairments to McGill's language and symbolic skills development but did not uncover any other noteworthy cognitive deficiencies. Dr. Lanyon also reviewed "quite a lot of records" from McGill's childhood and found that McGill's neglectful and emotionally distant mother made him particularly susceptible to manipulation from women—especially Hardesty. When Hardesty "said jump, [McGill] jumped." According to Dr. Lanyon, McGill's unhealthy dependence on Hardesty was further exacerbated by his chronic methamphetamine use, which...