Moormann v. Ryan

• Decision Date: 08 December 2010
• Docket Number: No. 08-99035,08-99035
• Citation: 628 F.3d 1102
• Parties: Robert Henry MOORMANN, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

628 F.3d 1102

Robert Henry MOORMANN, Petitioner-Appellant,

v.Charles L. RYAN,^*Respondent-Appellee.

No. 08-99035.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 2010.

Filed Dec. 8, 2010.

Denise Irene Young, Tucson, AZ, for petitioner/appellantRobert Henry Moormann.

Julie S. Hall, Oracle, AZ, for petitioner/appellantRobert Henry Moormann.

John Pressley Todd, Phoenix, AZ, for respondent/appelleeCharles L. Ryan.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding.D.C.No. 2:91-CV-01121-ROS.

Before: MARY M. SCHROEDER, M. MARGARET McKEOWN and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

Robert Henry Moormann was convicted in Arizona and sentenced to death in 1985 for the brutal murder of his adoptive mother.The murder occurred in a Florence, Arizona motel room while Moormann was on furlough from the Arizona State Prison.This case has a protracted history in both the Arizona state courts and in the federal courts.In 2005, we decided the first appeal from the district court's denial of habeas relief.SeeMoormann v. Schriro (Moormann II),426 F.3d 1044(9th Cir.2005).We affirmed the district court's dismissal of the vast majority of Moormann's claims, but remanded for consideration of whether the failure of Moormann's counsel to raise certain claims in Moormann's direct appeal to the Arizona Supreme Court constituted sufficient cause and prejudice to excuse Moormann's procedural default of those claims.Id. at 1060.

On remand, the district court again denied Moormann's habeas petition.The court then certified three issues for appeal, all relating to whether Moormann's counsel in his direct appeal to the Arizona Supreme Court rendered ineffective assistance by failing to raise claims alleging ineffective assistance of trial counsel in (1) failing to pursue alternative defenses, (2) waiving lesser-included-offense instructions, and (3) failing at sentencing to present lay witnesses concerning Moormann's background.

The procedural background and gruesome facts of this case are set forth in detail in our first opinion and in the Arizona Supreme Court's opinion on direct appeal.Seeid. at 1047-52;State v. Moorman (Moormann I),154 Ariz.578, 744 P.2d 679, 681-82(1987).¹We summarize only the essential facts relating to the crime, the relevant procedural history in the state courts, and the district court's disposition of the issues presented to it for consideration after our original remand.

In January 1984, Moormann was released on a 72-hour furlough from the Arizona State Prison in Florence, where he was serving a sentence of nine years tolife for kidnapping.His adoptive mother, Roberta, traveled to Florence on Thursday, January 12, to visit him during this furlough.Moormann and Roberta checked into a room at the Blue Mist Motel that afternoon.

Sometime between 6:00 and 7:30 a.m. on Friday, January 13, Moormann went to a convenience store and purchased a steak knife and a buck knife.At about 9:00 a.m., Moormann went to the front desk of the motel and asked that maid service be held because his mother was ill.He also borrowed some disinfectant spray.At trial, the motel owner's wife testified that when she saw Moormann later that afternoon, he smelled horrible so she gave him some cleaning supplies for his room.Moormann later left some foul-smelling towels outside of his room door.

During the course of the day, Moormann went to multiple businesses in Florence and asked if he could dispose of some spoiled meat or animal guts in their dumpsters.After one of the business owners reported Moormann's suspicious conduct, two Florence police officers went to the Blue Mist Motel at about 10:30 p.m. to check on Roberta's welfare.Moormann told the officers that his mother had been feeling sick that morning but that she felt better later and had gone out visiting.The officers looked in the motel's dumpsters, did not see anything suspicious, and temporarily left the motel to continue their investigation.

At about 12:30 a.m. on Saturday, January 14, Moormann called a lieutenant at the prison and convinced him to dispose of a box, purportedly containing some dog bones and other garbage, that Moormann wanted to get rid of in the prison's dumpster.The police learned about the box about an hour later when they called the prison to inquire about Moormann and to report his suspicious behavior.The bones were examined and determined to be human.The police arrested Moormann, who quickly confessed to killing his mother and dismembering her body.The police obtained a warrant to search Moormann's motel room and discovered numerous items stained with blood or human tissue.Police found the rest of Roberta's remains in trash dumpsters near the motel and in the sewer.

The forensic evidence presented at trial revealed that Roberta had been suffocated, probably after she had been beaten and stabbed.Moormann told police that he had tied Roberta up before he killed her, and the medical examiner found bruises in and around her mouth that were consistent with her having been gagged.The medical examiner testified at trial that the dismemberment of Roberta's body was very meticulous and probably took about two hours.

A search of Moormann's prison cell revealed a forged will, purporting to be Roberta's and bequeathing Moormann her estate in exchange for shares in his business, together with a forged letter explaining the reasons for the exchange.There was also evidence at trial that Roberta had planned to move away from Arizona when Moormann became eligible for parole in April 1984.

At trial, Moormann presented an insanity defense and declined the court's offer to instruct the jury on lesser-included offenses.The jury convicted him of first-degree murder after deliberating for two hours.

At sentencing, Moormann's counsel argued that Moormann's inability to fully understand his actions and his record of good behavior in prison weighed against imposing the death penalty.In support of this mitigation argument, counsel provided the trial judge with mental health records and letters from individuals who had known Moormann at various points in hislife, and presented the testimony of two prison employees who had been acquainted with Moormann during his incarceration to testify about his good behavior in prison and his mental deficiencies.Moormann's counsel also asked the trial judge to consider all mitigating evidence presented at trial, including the evidence relating to Moormann's background and mental defects that was introduced as part of his insanity defense.The trial judge found as a mitigating factor that Moormann had an impaired capacity to appreciate the wrongfulness of his conduct or to conform his actions to the requirements of the law.SeeAriz.Rev.Stat. § 13-703(G)(1)(WestSupp.1982-83).The court nevertheless sentenced Moormann to death on the basis of its finding there were three statutorily-enumerated aggravating factors: conviction of a previous offense for which a life sentence could be imposed, seeid.§ 13-703(F)(1); pecuniary motive, seeid.§ 13-703(F)(5); and the especially heinous, cruel, or depraved manner in which Moormann committed the murder, seeid.§ 13-703(F)(6).

Moormann appealed his conviction and sentence to the Arizona Supreme Court, and was appointed new counsel for the appeal.Appellate counsel raised a number of issues, but none relating to the ineffectiveness of trial counsel.The Arizona Supreme Court unanimously affirmed Moormann's conviction and sentence in October 1987.SeeMoormann I,744 P.2d at 688.

In May 1988, Moormann filed his first petition for state post-conviction relief("PCR") with the Arizona Superior Court.The court appointed the same lawyer who had handled Moormann's direct appeal to the Arizona Supreme Court to represent him in the initial PCR proceedings.Moormann's first PCR petition alleged that he received ineffective assistance of counsel at trial for various reasons.The Superior Court denied Moormann's ineffective assistance claims as procedurally barred under Arizona Rule of Criminal Procedure 32.2, because he did not raise them in the direct appeal of his conviction and sentence as required by then-existing Arizona law.See, e.g., State v. Carriger,143 Ariz. 142, 692 P.2d 991, 994-96(1984);cf.State v. Spreitz,202 Ariz. 1, 39 P.3d 525, 526-27, ¶¶ 5-9(2002).

Moormann filed a second PCR petition with the Arizona Superior Court in January 1991.The court then appointed new counsel to represent Moormann, and Moormann's new counsel supplemented his pro se PCR petition with the ineffective assistance of counsel claims Moormann's prior counsel had raised in the first PCR petition.Moormann's new counsel also added a claim that Moormann's counsel in his direct appeal and first PCR proceeding had rendered ineffective assistance.The court denied Moormann's second PCR petition, ruling that all of the claims were either precluded or waived under state law, because they had either been previously presented to the state courts and rejected, or they had not been previously raised in Moormann's direct appeal or first PCR petition.Moormann sought review by the Arizona Supreme Court; the court denied his petition.

In 1991, Moormann filed his federal habeas corpus petition, which was stayed pending completion of the state PCR proceedings.The district court denied the petition in April 2000.On appeal, we affirmed the district court's denial of the majority of Moormann's claims, but vacated the district court's judgment and remanded for further proceedings to determine whether Moormann had shown sufficient cause and prejudice to excuse the procedural default of any claims asserted in his federal habeas petition that had been raised in his first or secondstate PCR petitions, but had not been raised by Moormann's counsel in his direct appeal to the Arizona...