Summerlin v. Schriro

• Decision Date: 17 October 2005
• Docket Number: No. 98-99002.,98-99002.
• Citation: 427 F.3d 623
• Parties: Warren Wesley SUMMERLIN, Petitioner-Appellant, v. Dora B. SCHRIRO, Director of Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 623

427 F.3d 623

Warren Wesley SUMMERLIN, Petitioner-Appellant, v. Dora B. SCHRIRO, Director of Arizona Department of Corrections, Respondent-Appellee.

No. 98-99002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 22, 2005.

Filed October 17, 2005.

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Ken Murray and Leticia Marquez, Federal Public Defender's Office, Phoenix, AZ, for the petitioner-appellant.

John Pressley Todd, Attorney General's Office, Phoenix, AZ, for the respondent-appellee.

On Remand from the United States Supreme Court. D.C. No. CV-86-00584-ROS.

Before: SCHROEDER, Chief Judge, and PREGERSON, REINHARDT, O'SCANNLAIN, HAWKINS, THOMAS, McKEOWN, WARDLAW, W. FLETCHER, FISHER, and RAWLINSON, Circuit Judges.

THOMAS, Circuit Judge.

In this appeal we consider whether petitioner received ineffective assistance of counsel at the penalty phase of his capital murder trial. We conclude that he did and reverse the judgment of the district court denying a writ of habeas corpus.

I

Extraordinary plot lines rarely end; they frequently reappear in sequels. Thus, this case returns to us from the Supreme Court for us to write the next chapter in this unusual saga.

We need not recount the prior episodes in detail; the underlying factual and procedural history is chronicled in our prior opinion. Summerlin v. Stewart ("Summerlin I"), 341 F.3d 1082, 1084-92 (9th Cir.2003) (en banc). In brief, Warren Summerlin was convicted of the murder of Brenna Bailey by a jury and was sentenced to death by a state judge. The Supreme Court of Arizona reviewed and affirmed Summerlin's convictions and his sentence. See State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1983), recons. denied Jan. 17, 1984. After an initial petition for writ of habeas corpus in federal district court and four unsuccessful post-conviction attempts in state court to overturn his conviction, Summerlin filed a second amended petition for writ of habeas corpus in the federal district court in Arizona on November 22, 1995. See 28 U.S.C. § 2254 (1994). The federal district court denied Summerlin's second amended petition for writ of habeas corpus on October 31, 1997. Pursuant to Fed.R.Civ.P. 59(e), Summerlin moved to vacate the judgment on November 28, 1997. The district court denied this motion on January 12, 1998, but issued a certificate of probable cause enabling Summerlin to appeal pursuant to Fed. R.App. P. 22(b)(1). This timely appeal followed.

A divided three-judge panel of this Court issued its opinion on October 12, 2001, affirming the district court in part and reversing in part. See Summerlin v. Stewart, 267 F.3d 926 (9th Cir.2001), withdrawn, 281 F.3d 836 (2002). The case was remanded for an evidentiary hearing as to whether the state trial judge was competent when he was deliberating on whether to impose the death penalty. Id. at 957.

In the interim, before the mandate issued in the appeal, the United States Supreme Court held that Arizona's death penalty statute violated the Sixth Amendment because the penalty of death was imposed by a judge, rather than a jury. Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We granted rehearing en banc to consider, inter alia, the potential retroactive effect of Ring. After rehearing en banc, we upheld Summerlin's conviction, but also held that Ring applied retroactively so as to require that the penalty of death imposed upon Summerlin be vacated. Summerlin I, 341 F.3d at 1121. The Supreme Court granted a writ of certiorari in part, Schriro v. Summerlin, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003), and reversed Summerlin I, holding that Ring did not apply retroactively to cases already final on direct review. Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (2004). The Court remanded the remaining sentencing issues, namely:

1. Whether Summerlin received ineffective assistance of counsel during the sentencing phase of his capital trial in violation of his rights under the Sixth Amendment;

2. Whether Summerlin's court-appointed public defender had a conflict of interest that adversely affected her representation at a critical stage of the proceedings, in violation of his rights under the Sixth Amendment;

3. Whether Summerlin was deprived of his right to due process of law because the trial judge was addicted to marijuana during his trial and deliberated over his sentence while under the influence of marijuana; and

4. Whether cumulative errors require reversal of his sentence.

Because the petition for a writ of habeas corpus was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), pre-AEDPA law governs our consideration of the merits of the claims. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th Cir.1997) (en banc). Under pre-AEDPA law, we consider a claim alleging ineffective assistance of counsel as a mixed question of law and fact that we review de novo. Rios v. Rocha, 299 F.3d 796, 799 n. 4 (9th Cir.2002). We review the district court's denial of Summerlin's habeas petition de novo and the district court's factual findings for clear error. Id. Because this is a pre-AEDPA case, we do not review the state court's legal conclusions to determine whether they are "objectively unreasonable;" rather, we "simply resolve the legal issue on the merits, under the ordinary rules." Belmontes v. Brown, 414 F.3d 1094, 2005 WL 1653620, *1 (9th Cir.July 15, 2005); see also id. ("`[A]n unreasonable application of federal law is different from an incorrect application of federal law.'") (quoting Williams v. Taylor, 529 U.S. 362, 365, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (plurality opinion)). We owe less deference to state court factual findings under pre-AEDPA law, but "we must still presume such findings to be correct unless they are `not fairly supported by the record.'" Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir.1998) (quoting 28 U.S.C. § 2254(d)(8) (1996)).

II

The first sentencing issue is whether Summerlin received constitutionally effective assistance of counsel at sentencing. We conclude that he did not, requiring reversal of the district court order denying the petition for a writ of habeas corpus.

A

The Sixth Amendment right to counsel in a criminal trial includes "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). This right extends to "all critical stages of the criminal process," Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), including capital sentencing, Silva v. Woodford, 279 F.3d 825, 836 (9th Cir.2002). Indeed, "[b]ecause of the potential consequences of deficient performance during capital sentencing, we must be sure not to apply a more lenient standard of performance to the sentencing phase than we apply to the guilt phase." Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir.1992).

To prevail on his claim of ineffective assistance of counsel during the penalty phase of his trial, Summerlin must demonstrate first that the performance of his counsel fell below an objective standard of reasonableness at sentencing, and second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that `[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). However, general principles have emerged regarding the duties of criminal defense attorneys that inform our view as to the "objective standard of reasonableness" by which we assess attorney performance, particularly with respect to the duty to investigate. For example, the Supreme Court has cited with approval the ABA Standards for Criminal Justice as indicia of the obligations of criminal defense attorneys. Rompilla v. Beard, ___ U.S. ___ _ ___, 125 S.Ct. 2456, 2465-66, 162 L.Ed.2d 360 (2005); Williams, 529 U.S. at 396, 120 S.Ct. 1495; see also Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (noting that "we have long referred [to the ABA standards] as `guides to determining what is reasonable'" (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052)). The standards in effect at the time of Summerlin's trial clearly described the criminal defense lawyer's duty to investigate, providing specifically that:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.

ABA Standards for Criminal Justice 4-4.1 (2d ed.1980).

The duty to investigate is critically important in capital penalty phase proceedings. In a capital case, a criminal defendant has a constitutionally protected right to provide the jury with mitigating evidence. Williams, 529 U.S. at 393, 120 S.Ct. 1495. Accordingly, a criminal defense attorney has a duty to investigate, develop, and present mitigation evidence during penalty phase proceedings. Wiggins, 539 U.S. at 521-23, 123 S.Ct. 2527. "To perform effectively in the penalty phase of a capital case, counsel must...