Robinson v. Schriro

Decision Date22 February 2010
Docket NumberNo. 05-99007.,05-99007.
Citation595 F.3d 1086
PartiesFred Lawrence ROBINSON, Petitioner-Appellant, v. Dora B. SCHRIRO, Director, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Patrick E. McGillicuddy, Phoenix, AZ, for the petitioner-appellant.

Terry Goddard, Attorney General, Kent Cattani, Chief Counsel, Capital Litigation Section, J.D. Nielsen, Assistant Attorney General, and Jeffrey A. Zick (argued), Assistant Attorney General, Capital Litigation Section, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona, James A. Teilborg, District Judge, Presiding. D.C. No. CV-96-00669-JAT.

Before: B. FLETCHER, MARSHA S. BERZON, and JOHNNIE B. RAWLINSON, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge RAWLINSON.

BETTY B. FLETCHER, Circuit Judge:

Petitioner Fred Lawrence Robinson appeals the district court's denial of his Petition for Writ of Habeas Corpus. Robinson faces a death sentence imposed by the state of Arizona for the murder of Sterleen Hill. Robinson sought relief from his sentence and conviction on ten grounds in his petition to the district court. Following denial of the petition, the district court granted a certificate of appealability as to four issues, and we subsequently certified an additional five issues for appeal. We have jurisdiction over this pre-AEDPA appeal pursuant to 28 U.S.C. § 1291 and reverse in part and remand in part the district court's determination. We hold that the Arizona courts arbitrarily found that Robinson committed the murder in an especially cruel, heinous, or depraved manner in violation of the Eighth Amendment and that Robinson received ineffective assistance of counsel at sentencing in violation of the Sixth Amendment. We reverse the district court's denial of those claims and remand to the district court for issuance of a writ of habeas corpus striking the application of the especially cruel, heinous, or depraved aggravating factor to Robinson and ordering a new sentencing proceeding. We affirm the district court's denial of Robinson's remaining claims in a memorandum disposition filed concurrently with this opinion.

I. Factual and Procedural Background
A. The Crime1

At around 6 p.m. on June 8, 1987, Robinson drove from Banning, California, to Yuma, Arizona with two friends, Theodore Washington ("Washington") and Jimmy Lee Mathers ("Mathers"). Earlier that afternoon, Robinson told his son, Andre, that the three men were going to Yuma to see if Susan Hill ("Susan"), Robinson's common law wife, was there. As Andre looked on, the three men loaded two handguns and a shot gun into Robinson's car.

At around 11:30 p.m., Sterleen Hill ("Sterleen"), Susan's stepmother, heard sounds outside the Hills' house in Yuma. She told her son LeSean to investigate, but he saw no one. At approximately 11:45, someone knocked on the door. When LeSean opened it, a man identified himself as James and told LeSean that he had some money for Ralph Hill ("Ralph"), Susan and LeSean's father. When LeSean opened the door to accept the money, the man, whom LeSean believed to be a black man, attempted to grab him. LeSean escaped the man's grasp, fled the house, and ran to a neighbor's house to call the sheriff.

As LeSean fled his house, two people entered the home. One of these was later identified by Ralph as a black man with a red bandana who was not Robinson. Ralph heard the intruders say that they were narcotics agents and that they wanted the drugs and the money. The intruders forced Sterleen and Ralph to lie face-down on the floor of their bedroom and bound their hands and feet with electrical cords and neckties. The intruders repeatedly asked where the money was and searched through the bedroom closet and dresser. When Sterleen asked that her feet be covered up, the Hills were both shot in the back with a shotgun. Ralph survived with severe injuries, but Sterleen died. A girl who lived across the street heard what sounded like gunshots and then heard footsteps on the gravel outside, muffled voices say "hurry up," a car door slam, and a car driving away.

Shortly after the shootings, Deputy Koteles, who was responding to LeSean's emergency call, saw Robinson driving near the Hills' house. When Robinson passed Koteles, Robinson smiled and accelerated as he passed. Robinson was apprehended in his car shortly thereafter on a road near the Hills' home. Deputy Koteles found several bullets in Robinson's pants pockets. Mathers was apprehended the next day after Susan Hill, who had heard about the shooting and was on her way to Yuma after stopping in Banning, saw Mathers walking along the road in the direction of Banning. Washington, who had called his girlfriend at 2:00 a.m. on June 9th to tell her that he was stranded in Yuma, was apprehended in Banning several days later.

Subsequent to the shootings, the police found several pieces of evidence in the fields surrounding the Hill house, including Robinson's shotgun, several spent and unspent shotgun shells, a revolver cylinder, a bag containing several bullets, and a coat that appeared to belong to Washington. The police also found evidence in Robinson's car, including a box of shotgun shells a red bandana (on which hairs probably belonging to Mathers were found), and a piece of paper with the Hills' address on it, which had probably been written by Robinson.

In front of the Hills' home, the police found footprints which they believed belonged to Robinson, although they did not have a forensic expert evaluate the prints. There was no evidence, however, that Robinson had been inside the home. No fingerprints of his were found inside the house, on the shotgun, or on any other items believed to have been used in the shooting. Moreover, neither LeSean nor Ralph Hill identified Robinson as having been one of the intruders, even though Ralph knew Robinson and was shown a photo lineup containing Robinson's photo.

B. The Trial
1. Guilt Phase

The three men were tried together. The prosecution's theory at trial was that Robinson had recruited Washington and Mathers to go with him to Yuma to kidnap Susan Hill. The prosecution's evidence established that Robinson had brought guns on his trip to Yuma, had been present in front of the Hills' house, and had driven away after the shooting. But the prosecution neither argued nor presented evidence that Robinson entered the residence or participated in the actual shooting. In fact, Ralph specifically testified that the person he saw was not Robinson. Additionally, the prosecution presented no evidence or argument that Robinson had instructed Washington and Mathers to kill the Hills, much less tell them how to do so.

As further evidence of Robinson's motive, the prosecution presented evidence of two other occasions on which Robinson attempted to get Susan to return to him. The first time, in June 1986, Susan was staying with her sister in North Hollywood, California. Two men entered the house one after the other, threatened Susan's sister and 11-year-old niece with handguns, and tied up their hands with stockings. Approximately two minutes later Robinson entered the house, by which time the niece had already been untied. Robinson had the sister take him to Susan, who was hiding in the bedroom closet. Robinson then cut the stockings off of the sister's hands, told her to return to the living room, and spoke to Susan for about half an hour. During the conversation, Robinson tried to make Susan believe that he missed her and wanted her to come back to him, but he also told Susan that he had come with the intention of killing her and her sister and that the only thing that stopped him was that Susan's niece was there. The next day, Susan left with Robinson for Banning.

The second occasion was in January of 1987, after Susan went to Philadelphia to stay with family without telling Robinson where she was going. When Robinson eventually located her, he went to Philadelphia with Mathers, lured Susan to him through a ruse, grabbed her, and took her back to Banning.

All three defendants were found guilty of first-degree murder, attempted first-degree murder, two counts of aggravated assault, first-degree burglary, and armed robbery.

2. Sentencing Phase

The prosecution changed its theory of the case at sentencing. The new theory was that Sterleen died as a result of a drug deal gone bad. Accordingly, the prosecution argued two statutory aggravating circumstances: (1) the defendants committed the offense in expectation of the receipt of something of pecuniary value, and (2) the defendants committed the offense in an especially cruel, heinous, or depraved manner. Additionally, the prosecution specifically argued that the possibility that the conviction rested upon felony-murder was not a mitigating circumstance in this case because there was no doubt of the defendants' specific intent to kill.

In his sentencing memorandum, Robinson's attorney, Robert Roberson made several arguments. First, Roberson argued that the Supreme Court's opinions in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), counseled against sentencing Robinson to death because Robinson was not present at the scene of the killing and the prosecution could not show beyond a reasonable doubt that Robinson intended to kill or acted with a reckless indifference to human life. Second, Roberson argued that the prosecution could not prove the statutory aggravating circumstances beyond a reasonable doubt. Third, he argued that two statutory mitigating circumstances applied: (1) that Robinson was a minor participant in the offense, and (2) that it was not reasonably foreseeable that Robinson's conduct would cause or create a grave risk of death to another person. Finally, he briefly argued that...

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