Scott v. Schriro

• Decision Date: 02 June 2009
• Docket Number: No. 05-99012.,05-99012.
• Citation: 567 F.3d 573
• Parties: Roger Mark SCOTT, Petitioner-Appellant, v. Dora B. SCHRIRO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

567 F.3d 573

Roger Mark SCOTT, Petitioner-Appellant, v. Dora B. SCHRIRO, Respondent-Appellee.

No. 05-99012.

United States Court of Appeals, Ninth Circuit.

June 2, 2009.

Jon M. Sands, Michael L. Burke, Jennifer Y. Garcia, Federal Public Defender's Office, Phoenix, AZ, for the petitioner-appellant.

Terry Goddard, Kent Cattani, J.D. Nielsen, Office of the Attorney General of Arizona, Capital Litigation Section, Phoenix, AZ, for the respondents-appellees.

Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, District Judge, Presiding. Argued and Submitted July 15, 2008.

Before: ALEX KOZINSKI, Chief Judge, JEROME FARRIS and CARLOS T. BEA, Circuit Judges.

PER CURIAM:

Roger Scott, an Arizona state prisoner sentenced to death, appeals the denial of his petition for a writ of habeas corpus in federal district court. When a state prisoner files such a petition, the district court will usually not hear any claim the petitioner did not first present to the state courts. This process is referred to as the prisoner "exhausting" his state remedies. Nor will the district court decide a claim denied by a state court because the petitioner failed to follow a rule of state procedure that is both adequate and independent of federal law. To be considered "adequate," the state rule must be one that is consistently applied by the courts of that state in the same manner it was applied to the current petitioner's case.

The dispositive issue in this case is whether the Arizona Superior Court relied on an adequate state bar, consistently applied, by the Arizona courts when it denied Scott's state petition for post-conviction relief. We conclude it did not. It held Arizona Rule of Criminal Procedure 32.6(d) ("Rule 32.6(d)") prohibited Scott from filing an amendment to his previously-dismissed Arizona post-conviction petition for relief. His amendment alleged Scott had suffered ineffective assistance of counsel at his trial. In doing so, the post-conviction court ignored Arizona precedent holding such a petition could be so amended. See State v. Rodriguez, 183 Ariz. 331, 903 P.2d 639, 641 (Ct.App.1995) (holding a post-conviction court has the authority under Rule 32.6(d) to allow the filing of an amended petition upon a showing of good cause, even after the court has already dismissed the first petition). Scott's first petition for post-conviction relief was filed in 1995. Accordingly, the amended Rule 32.6(d) was not an "adequate" state procedural rule that barred subsequent federal review of Scott's ineffective assistance of counsel claims. We will remand those claims for the district court to consider in the first instance.

We reverse the district court's denial of Scott's petition in part and remand to the district court to hold an evidentiary hearing and rule on the merits of these claims. We affirm the district court's ruling that Scott was not prejudiced solely by his counsel's failure to present a recommendation for leniency from the victim's father as mitigation evidence. Nevertheless, on remand the district court should hold an evidentiary hearing and consider whether the failure to present such a recommendation from the victim's father, combined with the failure of Scott's counsel to submit other mitigating evidence as discussed below, resulted in prejudice.

I. Facts and Procedural History

This case stems from the premeditated murder of a four-year-old named Christopher Milke. Christopher's mother, Debra Milke, her roommate James Styers, and Styers's friend, Roger Scott, were each tried separately for first-degree murder, conspiracy to commit murder, kidnapping, and child abuse. All were convicted.

At Scott's trial, he was represented by Roland Steinle. The State's theory of the case was that Scott, Styers, and Debra Milke planned to kill Christopher to claim $5,000 from a life insurance policy covering Christopher, which Debra had taken out through her work. Scott was to receive $250. Scott testified during trial that he was only a dupe, lured into helping his friend Styers after the fact. However, Scott had given a full confession to the police of his own role in the planning and execution of the kidnapping and murder of Christopher. Scott confessed he drove with Styers and Christopher out into the desert, where Styers shot Christopher. Scott led the police to Christopher's body, the firearm used to kill Christopher (which was in Scott's closet), and a pair of bloody shoes worn by Styers when he shot Christopher.¹

After a jury trial, Scott was found guilty of first-degree murder, conspiracy to commit murder, and kidnapping.² The relevant facts of the case are set forth in the Arizona Supreme Court's opinion affirming Scott's conviction. State v. Scott, 177 Ariz. 131, 865 P.2d 792, 795-96 (1993). The details of the facts supporting the underlying conviction, horrible as they are, are not important for purposes of this appeal. Scott does not contest his conviction; he contests only his sentence.

Scott received the death penalty for the first-degree murder charge, and consecutive terms of imprisonment totaling 47 years-to-life for the conspiracy and kidnapping charges. When sentencing Scott, the trial judge found three statutory aggravating factors:³ (1) Scott committed the murder as an accomplice for pecuniary gain; (2) the murder was "heinous" and "depraved" because it was a senseless murder and the victim was helpless; and (3) Scott was an adult and the victim was under the age of fifteen. Ariz.Rev.Stat. § 13-703(F)(5), (6), (9). The court also found four non-statutory mitigating circumstances: (1) Scott's cooperation with the police in investigating the crime; (2) his conduct while incarcerated and during trial; (3) his "bond of love" with his mother; and (4) his psychological history. However, the judge concluded these mitigating factors did not outweigh the aggravating factors and imposed the death penalty.

Scott's conviction and sentence were affirmed on direct appeal to the Arizona Supreme Court. Scott, 865 P.2d at 806. That court found one additional mitigating factor: Scott's lack of any prior felony convictions. Id. After adding this additional factor to the mitigating factors found by the trial court, the Arizona Supreme Court held the aggravating factors still carried more weight and affirmed Scott's death sentence. Id. This procedure of re-weighing the evidence is allowed under Arizona law. See State v. Gallegos, 178 Ariz. 1, 870 P.2d 1097, 1117-18 (1994).

During the Arizona post-conviction proceedings, Neil Bassett initially represented Scott. Pursuant to Arizona law at the time, the post-conviction court was the same Superior Court where Scott's trial was held. The same judge heard the proceedings. Bassett raised a single issue: whether Scott's trial counsel, Steinle, rendered ineffective assistance of counsel by his failure to submit proper proof of the victim's father's recommendation for leniency at sentencing.

Prior to its decision, Scott had written the Arizona post-conviction court repeatedly, seeking to have the court replace Bassett with new counsel. He told the court Bassett refused to communicate with him. Scott even wrote the court, stating he had fired Bassett. The court ignored Scott's letters and did not hold a hearing to determine whether Scott was seeking to represent himself or whether new counsel should be appointed. Instead, the court summarily denied the petition for post-conviction relief in a minute order. Scott then filed a formal motion to represent himself, and Bassett filed a motion to withdraw and to allow new counsel an extension of time to file a motion for rehearing or other filing. The court granted Scott's motion for an extension of time and appointed new counsel, Rachel Yosha.

The court gave Yosha 30 days, plus one extension, to make her first filing in the case. Within the time allowed, Yosha filed motions to vacate the denial of the petition for post-conviction relief and for leave to file an amended petition raising 23 additional claims. As good cause for Scott's failure to file all his proposed claims in his first petition, Yosha argued Scott's previous counsel, Bassett, had been ineffective — a claim accepted by the post-conviction court when it granted the motion for new counsel.

Among the proposed claims in the amendment to his petition for post-conviction relief were claims that Scott's trial counsel, Steinle, provided Scott ineffective assistance of counsel when Steinle failed to accept a plea bargain offer for second-degree murder, even though Scott said he wanted to accept the offer, and even though Steinle recognized the offer was "the only viable way [for Scott] to avoid the death penalty" given his confession. Rather than plead guilty to second-degree murder, Scott went to trial and was found guilty of first-degree murder, as his confession meant he would be. At sentencing, Steinle also failed to present several mitigating circumstances, including evidence of four traumatic head injuries Scott had suffered, a brain scan showing Scott's brain had atrophied, evidence Scott suffered from seizures, as well as evidence of the plea bargain offer, which Scott wanted to accept but Steinle rejected.

The motions filed by Yosha contained the legal and factual bases for each claim Scott wished to make in the post-conviction petition for relief. The post-conviction court denied the motions, holding it had "no authority" under Arizona Rule of Criminal Procedure 32.6(d) to allow the filing of an amended petition because the motion was filed after the original petition had been denied.

Following the post-conviction court's denial, Scott filed a petition for review with the Arizona Supreme Court seeking review of denial of his petition for post-conviction relief and the denial of his motion to amend his petition.⁴ Yosha attached the proposed amended petition in the appendix to Scott's brief.⁵ The amended petition...