Theodore Wash. v. Ryan, No. 05-99009

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: GOULD, Circuit Judge
• Citation: 922 F.3d 419
• Parties: Theodore WASHINGTON, Petitioner-Appellant, v. Charles L. RYAN, Warden, Respondent-Appellee.
• Docket Number: No. 05-99009
• Decision Date: 17 April 2019

922 F.3d 419

Theodore WASHINGTON, Petitioner-Appellant,
v.
Charles L. RYAN, Warden, Respondent-Appellee.

No. 05-99009

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 26, 2018 Pasadena, California
Filed April 17, 2019

GOULD, Circuit Judge:

922 F.3d 423

Arizona state prisoner Theodore Washington appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 1987, a jury found Washington guilty of six crimes involving the robbery and murder of Sterleen Hill in her Arizona home. The court sentenced Washington to death.

In his habeas corpus petition, Washington challenges his conviction and sentence on the first-degree murder charge. He asserts that he is entitled to habeas relief on several grounds, the majority of which are addressed in a separate memorandum disposition filed concurrently with this opinion. This opinion solely addresses Washington’s certified claim for ineffective assistance of trial counsel. Washington contends that his counsel did not investigate and present mitigating evidence at the penalty phase, including evidence of diffuse brain damage, childhood abuse, and substance abuse. The Arizona court previously considered and rejected this claim on post-conviction review.

Because review under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-122, 100 Stat. 1214 ("AEDPA"), does not apply in this case, we are not bound by the highly deferential "double deference" in considering Washington’s claim of ineffective assistance of counsel and its proper analysis. See Hardy v. Chappell , 849 F.3d 803, 824–26 (9th Cir. 2016) (explaining the interaction of 28 U.S.C. § 2254(d) and the standard for deficiency under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Instead, we apply the familiar standard articulated in Strickland , and assess the state court record to determine whether Washington’s counsel was constitutionally deficient and whether the deficient performance resulted in prejudice. See Bobby v. Van Hook , 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) (applying the Strickland analysis in a pre-AEDPA case). Because Washington’s counsel did not properly investigate Washington’s background, the trial court at the penalty phase was not presented with substantial mitigation evidence regarding Washington’s education and incarceration, his diffuse brain damage, and his history of substance abuse. This raises a reasonable probability that, had the court been presented with the mitigation evidence in the first instance, the outcome would have been different. The sentencing judge might have decided that Washington should be spared death and be imprisoned for life.¹ We reverse the district court’s denial of habeas relief and remand with instructions to grant habeas relief against the death penalty, unless within a reasonable time the state retries the penalty phase or decides to modify the sentence to life in prison.

I

At around 11:45 p.m. on the night of June 8, 1987, two men forced their way into Ralph and Sterleen Hill’s Yuma, Arizona

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home in what turned out to be a disastrously violent home invasion. The men forced the Hills to lie face down on the floor of the master bedroom and bound their hands behind their backs. One of the men intermittently "screwed" a pistol in Ralph’s ear while both men yelled at the couple demanding that the Hills give them drugs or money. Ralph glimpsed one of the assailants as he ransacked the drawers and closets in the room. The Hills were discovered lying face down in their bedroom. Both had been shot in the back of the head. Ralph survived the horrendous shot to his head, but was seriously injured. Sterleen did not survive the shooting.

Police arrested Fred Robinson shortly after the incident. Robinson was the common law husband of Susan Hill, Ralph Hill’s daughter from a prior marriage. Police also arrested Jimmy Mathers and Theodore Washington in connection with the crimes. The state charged the three men with (1) first degree murder for the death of Sterleen Hill, (2) attempted first degree murder, (3) aggravated assault causing serious physical injury, (4) aggravated assault using a deadly weapon, (5) burglary in the first degree, and (6) armed robbery. The three men were tried together, and the jury convicted on all counts.

A

The penalty phase of the trial commenced on January 8, 1988. In this appeal, we are concerned with the penalty phase of Washington’s trial and the death penalty sentence he received.

Washington’s trial counsel, Robert Clarke, called three witnesses to testify on Washington’s behalf: Washington’s friend, Steve Thomas; Washington’s mother, Willa Mae Skinner; and Washington’s half-brother, John Mondy.

Steve Thomas testified that he knew Washington for two years. He testified that Washington was easily influenced but not violent. He also testified that Washington was a dedicated father. When asked if Washington had a drug problem, Thomas testified that he had not noticed one. Willa Mae Skinner testified that Washington was a good child and that he dropped out of school when he was in high school. She also testified that Washington was a good father, and that he was gentle and "liked to party." Finally, John Mondy reiterated that Washington was affable but easily led. He also confirmed that Washington had trouble in school as a child.

During closing argument, Clarke focused primarily on attacking the sufficiency of the court’s findings under 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). Regarding mitigation, Clarke did not entirely ignore all mitigation, but rather urged the court to consider Washington’s age, his relatively minor criminal record, his good relationship with his son, and his general demeanor as a caring individual. This appeal is concerned primarily with the mitigation evidence and argument that Clarke did not present.

The trial court found that the state had established two aggravating factors beyond a reasonable doubt: (1) that the murder was committed in an especially cruel, heinous, or depraved manner, and (2) that the murder was committed for, or motivated by, pecuniary gain. With respect to mitigation, the court found that Washington’s age was not a mitigating factor and that the remaining mitigating factors did not outweigh the aggravating factors. The court sentenced all three defendants to death on the first-degree murder charges.

B

Washington, Robinson, and Mathers each appealed their convictions and sentences

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to the Arizona Supreme Court. The state high court affirmed Washington and Robinson’s convictions and sentences, State v. Robinson , 165 Ariz. 51, 796 P.2d 853, 865 (Ariz. 1990), but found insufficient evidence to convict James Mathers and vacated his conviction, State v. Mathers , 165 Ariz. 64, 796 P.2d 866 (Ariz. 1990).

Following the direct appeal process, Washington and Robinson challenged their convictions and sentences on post-conviction review ("PCR"). The court held a joint PCR hearing on September 8, 1993. The Honorable Stewart Bradshaw, the same judge who presided over the trial, also presided over the post-conviction review proceeding. Washington, through his appellate counsel, argued that Clarke was ineffective at the penalty phase due to his failure to present mitigating evidence. Specifically, Washington argued that Clarke erred by failing to conduct a more thorough review of his school, medical, and incarceration records. He also argued that Clarke should have obtained a psychological evaluation and presented the results to the court.

The bulk of the new evidence presented at the PCR hearing was elicited through the testimony of Dr. Roy, the defense counsel’s retained psychologist. Dr. Roy evaluated Washington in 1992. He conducted clinical interviews and several psychological tests. Dr. Roy’s interviews with Washington revealed that he suffered abuse as a child in the form of daily whippings with straps and belts and that adults in the home used alcohol as a means to sedate him as a child. His review of Washington’s school and Department of Corrections ("DOC") records revealed that he was placed in classes for the "educable mentally retarded" when he was five years old and that he had been marked as low-IQ while incarcerated. However, Dr. Roy testified that these records conflicted with his own clinical findings because Washington tested at a low-average IQ of 96.

Dr. Roy’s interviews with Washington also revealed that Washington had substance abuse problems relating to alcohol and cocaine use. Washington told Dr. Roy that he began drinking recreationally at age eight and was a functional alcoholic by age fourteen. He also told Dr. Roy that he was heavily intoxicated on the night of the murder. Washington also said that he was a heavy cocaine user and that he consumed about $ 175 in cocaine per day at the time of the crime.

Finally, Dr. Roy testified that he believed that Washington suffered from diffuse brain damage resulting from early and prolonged drug and alcohol use and numerous traumatic head...