Washington v. Shinn
| Decision Date | 20 December 2021 |
| Docket Number | 05-99009 |
| Citation | 46 F.4th 915 |
| Parties | Theodore WASHINGTON, Petitioner-Appellant, v. David SHINN, Director, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nathaniel C. Love (argued), Grace L.W. St. Vicent, Andrew F. Rodheim, and Julia G. Tabat, Sidley Austin LLP, Chicago, Illinois; Jean-Claude André, Sidley Austin LLP, Los Angeles, California; Gilbert H. Levy, The Law Offices of Gilbert H. Levy, Seattle, Washington; Mark E. Haddad, University of Southern California Gould School of Law, Los Angeles, California; for Petitioner-Appellant.
Laura P. Chiasson (argued), Assistant Attorney General; Lacey Stover Gard, Acting Chief Counsel, Capital Litigation Section; Mark Brnovich, Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.
Before: Ronald M. Gould, Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges.
;
The opinion filed on December 20, 2021, is amended by the opinion along with Judge Gould's separate concurrence filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are otherwise DENIED, and no further petitions will be accepted.
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 convicted Washington for the murder of Sterleen Hill and the attempted murder of Ralph Hill, and the trial court judge sentenced him 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 we addressed in our memorandum disposition filed on January 15, 2021, Washington v. Ryan , 840 F. App'x 143 (9th Cir. 2021). In this opinion we again address Washington's certified claim for ineffective assistance of trial counsel.1 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. Applying the standard for evaluating ineffective assistance of counsel set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),2 we conclude that Washington has not shown either that his trial counsel's performance was constitutionally deficient or that the deficiencies were prejudicial. Accordingly, we affirm the district court's denial of his habeas petition.
At around 11:45 p.m. on the night of June 8, 1987, at least two men forced their way into Ralph and Sterleen Hill's home in Yuma, Arizona. The men forced the Hills to lie face down on the floor of the master bedroom with their hands bound in preparation to be shot execution-style. 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. Sterleen was forced to listen helplessly as her husband was shot first and then wait as the shotgun was reloaded, knowing that she would be next. Had the Hills' teenage son, LeSean, not run off, it is evident that he would have suffered the same fate. (Ralph testified he heard a voice in the background say, "We better get the kid."). The Hills were discovered lying face down in their bedroom. 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. Arizona charged the three men with first-degree murder for the death of Sterleen Hill, attempted first degree murder, aggravated assault causing serious physical injury, aggravated assault using a deadly weapon, burglary in the first degree, and armed robbery. The three men were tried together, and the jury convicted on all counts.
The penalty phase of the trial commenced on January 8, 1988. 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. 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, 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 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.
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.
Washington, Robinson, and Mathers each appealed his conviction and sentence 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 (1990), but found insufficient evidence to convict James Mathers and vacated his conviction, State v. Mathers , 165 Ariz. 64, 796 P.2d 866 (1990).
Following the direct appeal process, Washington and Robinson challenged their convictions and sentences on post-conviction review ("PCR"). The trial court held a joint PCR hearing on September 8, 1993. The Honorable Stewart Bradshaw, the same judge who presided over the trial, 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. Washington 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. Tod 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 to sedate him as a child. Dr. Roy's review of Washington's school and Department of Corrections ("DOC") records revealed that Washington 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-to-average IQ of 96.
Dr. Roy's interviews with Washington also disclosed that Washington had substance abuse problems relating to cocaine and alcohol 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 used 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 injuries. Dr. Roy testified that diffuse brain damage can result in disinhibition and poor social judgment as well as poor impulse control and an inability to appreciate the long-term consequences of one's actions. Dr. Roy testified that, in his opinion, Washington's cocaine addiction and his impaired impulse control likely contributed to his ability to be manipulated by others into making poor decisions.
The state called Dr. Eva McCullars, a psychiatrist who also evaluated Washington. Dr. McCullars reviewed Dr. Roy's report and conducted clinical interviews with Washington in June 1993. Dr. McCullars testified that she did not review Washington's DOC records, school records, or adult incarceration records. Dr. McCullars agreed that Washington suffered from diffuse brain damage, but concluded that Washington also suffered from antisocial personality disorder. On direct examination, ...
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