Ward v. Neal, 16-1001

• Decision Date: 26 August 2016
• Docket Number: No. 16-1001,16-1001
• Citation: 835 F.3d 698
• Parties: Roy L. Ward, Petitioner–Appellant, v. Ron Neal, Superintendent, Indiana State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

835 F.3d 698

Roy L. Ward, Petitioner–Appellant,

v.Ron Neal, Superintendent, Indiana State Prison, Respondent–Appellee.

No. 16-1001

United States Court of Appeals, Seventh Circuit.

Argued August 18, 2016

Decided August 26, 2016

Rehearing and Rehearing En Banc Denied October 11, 2016

Marie F. Donnelly, Attorney, Evanston, IL, Laurence E. Komp, Attorney, Manchester, MO, for Petitioner–Appellant.

Andrew A. Kobe, James Blaine Martin, Attorneys, Office of the Attorney General, Indianapolis, IN, Respondent–Appellee.

Before Wood, Chief Judge, and Easterbrook and Rovner, Circuit Judges.

Wood

, Chief Judge

Roy L. Ward is under a sentence of death for the brutal murder of Stacy Payne, just 15 years old at the time of the crime. He pleaded guilty to the charge at his second trial; a jury recommended death; and the trial court sentenced him accordingly. His conviction and sentence have passed muster through all the appropriate stages of review in the state courts, and the district court found no reason to disturb their conclusions when Ward sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254

. His primary ground for relief, and the only theory he pursues on appeal, is that his trial counsel rendered constitutionally ineffective assistance when they portrayed him as a dangerous, incurable “psychopath” to the jury, and that this failing is enough to undermine confidence in the sentence. We conclude, however, that the Indiana Supreme Court's decision that Ward suffered no prejudice from counsel's shortcomings was reasonable. This is enough to require us to affirm the district court's judgment denying the petition for a writ of habeas corpus.

I

We will be brief with the underlying facts, as most of them are not disputed and they are horrifying. Shortly after noon on July 11, 2001, 15-year-old Stacy Payne opened the front door of her home in Dale, Indiana, and found a stranger—Ward—ostensibly looking for a lost dog. Ward was lying. Shortly after Stacy let him in, her sister Melissa, who had been upstairs taking a nap, woke to the sound of screams. Looking down from the top of the stairs, she saw Stacy on the ground with a man on top of her. Stacy was screaming as the man assaulted her. Melissa promptly went to her parents' room and called 911; police arrived about ten minutes later.

Dale Town Marshal Matt Keller was the first to enter the house. He saw Ward standing near the door with a knife in his hand, sweating. Keller immediately took Ward into custody, moved Ward outside, and went back into the house. There he saw Stacy lying in a huge pool of blood in the kitchen, disemboweled, evidently raped, trying to speak. Keller watched over her while he waited for an ambulance. The Emergency Medical Technicians did what they could to stabilize her for transport and took her to a local hospital, from which she was later moved by helicopter to a Level One trauma center in Louisville. Doctors there tried to save her, but to no avail; she died approximately four or five hours after the attack. Although her wounds

were awful—her throat was severed to the back of her windpipe, her midsection was almost completely cut apart, and her left hand had been slashed to the bone—she was still able for some time to communicate with the nurses by squeezing her hand.

There was never any doubt that Ward was the person who had murdered Stacy so violently. The proceedings focused instead on the penalty that he should receive. He was first indicted and tried on capital charges in Spencer County, Indiana, where Dale is located. Ward's attorneys at this trial tried through the use of mitigating evidence to convince the jury that death was not appropriate. They introduced evidence of Ward's troubled upbringing, his difficulties in school, his psychological problems, his obsession with exposing himself (for which he had some 32 convictions), and his previous good deeds. That strategy failed. The Spencer County jury convicted him and recommended death, and the trial judge accepted its advice. On appeal to the Indiana Supreme Court, however, his conviction and sentence were vacated, because the court found that he had been denied his right to a fair trial when his motion for a change of venue was denied. A fair trial in Spencer County, it said, would have been impossible. Ward v. State (Ward I ), 810 N.E.2d 1042, 1050 (Ind. 2004)

.

We are concerned with Ward's second trial, at which he was represented by attorneys Lorinda Youngcourt and Steven Ripstra. They had handled his appeal to the Indiana Supreme Court and were thus familiar with his case. The judge for the new trial was Robert J. Pigman, an appointed special judge; the trial was conducted in the Vanderburgh County Superior Court, with a jury venire drawn from Clay County. After the trial court denied Ward's motion to dismiss the state's request for the death penalty, he pleaded guilty to murder and Class A felony rape, and the state agreed to dismiss the charge of criminal deviate conduct (which supported one aggravating circumstance for purposes of the death penalty). Ward requested a jury for his penalty trial.

Although Youngcourt in particular was an experienced criminal defense lawyer who had handled numerous capital cases, she was quite overextended when she undertook to represent Ward at his second trial. Two of her clients had “real” execution dates, which she was trying to have set aside. Another client was under a federal sentence of death and Youngcourt was handling his motion under 28 U.S.C. § 2255

. Finally, she was in the early stage of preparing for two additional capital trials. Perhaps that is why she exercised such poor oversight over a social worker, Micki Delph Rushton, whom she had hired to develop mitigation evidence. They had counted on using materials that had been developed for the first trial, but the file turned out to be very thin, and they concluded that they needed to start from scratch.

Rushton did very little on the case, though she ultimately completed 12 comprehensive witness interviews out of some 45 that Youngcourt wanted. (Most of the people on this list had knowledge of Ward's convictions for exposing himself.) Youngcourt was able to secure a continuance of the trial, which had been set for October 2006. In January 2007 there was a conference to set a new trial date. Youngcourt asked for a year, but the court gave her only until May 7, 2007. Youngcourt describes her state of readiness for that trial as “zero.” It then turned out that Rushton's life was “falling apart” and that she had “a bad drinking problem.”

Youngcourt filed several other motions for continuances, but the court denied them. She retained other witnesses, including a mitigation investigator who abandoned the case after one day. She also retained a mental health consultant, Dr. George Parker, but he did not meet Ward until the end of March. She eventually also hired Dr. Alan Friedman, who was supposed to conduct neuropsychological testing but did not. He did, however, interview Ward during three visits to the prison, and he reviewed substantial materials that Youngcourt had furnished. Ultimately, the defense team decided not to stress mitigation, but instead to emphasize Ward's serious psychological problems. Dr. Friedman thought that Ward was a “psychopath,” and Dr. Parker agreed.

That was what the jury heard at the penalty trial, which began on May 9, 2007.

It also heard Dr. Friedman's opinion that Ward should never be “on the streets” because he was born without a conscience. James E. Aiken, a former Commissioner of the Indiana Department of Correction, testified that Indiana had the ability safely to incarcerate a psychopath such as Ward. Drs. Friedman and Parker, unhelpfully for Ward, thought that he would be more dangerous than the average prisoner, and Dr. Parker opined that Ward might be a threat to someone in the prison who was smaller or weaker than himself, or perhaps someone whom Ward caught in a moment when Ward had the upper hand.

The lawyers also introduced mitigating evidence at the second trial; witnesses discussed his bad parental modeling (his father was also an exhibitionist), his attention deficit hyperactivity disorder

, his learning difficulties, his depression, and his psychopathy. Counsel did not have much material that they could use to humanize Ward, but they tried nonetheless to introduce what they could. As we noted, the jury recommended death; the trial court accepted that recommendation; and it sentenced Ward to death on June 8, 2007. The Indiana Supreme Court affirmed on direct appeal from the second trial. Ward v. State (Ward II ), 903 N.E.2d 946 (Ind. 2009). Ward sought post-conviction relief in the state court, but the trial court denied his petition after an evidentiary hearing, and the Indiana Supreme Court again affirmed. Ward v. State (Ward III ), 969 N.E.2d 46 (Ind. 2012). Ward then filed his petition under 28 U.S.C. § 2254, which the district court denied, paving the way for this appeal.

II

The sole issue Ward presents is “[w]hether trial counsel were ineffective when they failed to adequately investigate and present readily available mitigating evidence; and, due to their lack of preparation, instead presented Ward as a dangerous, incurable, remorseless ‘psychopath.’ ” As the Indiana Supreme Court recognized in Ward III

, this claim must be analyzed “under the two-part test announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Ward III , 969 N.E.2d at 51. Strickland, as the state supreme court went on to recognize, requires a petitioner to show two things in order to prove a Sixth Amendment violation: first, that counsel's performance was deficient, by showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”; and second, that “the deficient performance prejudiced the defense,” by depriving the defendant of a trial whose result is reliable. 466...