White v. Ryan

• Citation: 895 F.3d 641
• Decision Date: 11 July 2018
• Docket Number: No. 15-99011,15-99011
• Parties: Michael Ray WHITE, Petitioner–Appellant, v. Charles L. RYAN, Warden, Director, Arizona Department of Corrections; James O’Neil, Warden, Arizona State Prison–Eyman Complex, Respondents–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

895 F.3d 641

Michael Ray WHITE, Petitioner–Appellant,

v.Charles L. RYAN, Warden, Director, Arizona Department of Corrections; James O’Neil, Warden, Arizona State Prison–Eyman Complex, Respondents–Appellees.

No. 15-99011

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2017 Pasadena, California

Filed July 11, 2018

Jennifer Y. Garcia (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner–Appellant.

John Pressley Todd (argued), Assistant Attorney General, Capital Litigation Section; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents–Appellees.

Before: Milan D. Smith, Jr., Mary H. Murguia, and Jacqueline H. Nguyen, Circuit Judges.

NGUYEN, Circuit Judge:

Michael White shot and killed David Johnson ("David"), the husband of White’s lover, Susan Johnson ("Susan"). The only question is why. White was initially sentenced to death based on the state court’s finding of one aggravating factor—that he committed the murder for pecuniary gain. David had a life insurance policy, and there was some evidence that Susan was going to share the payout with White. After White lost his direct appeal, the state court granted him post-conviction relief as to the penalty phase and ordered a new mitigation hearing and sentencing. During these proceedings, however, White’s new counsel abandoned any challenge to the sole aggravating factor relied on by the state court despite compelling evidence that, rather than financial gain, White acted out of love for Susan and killed David only after she repeatedly pressured him to do so. Counsel’s failure to challenge the aggravating factor was not based on any strategic decision; instead, it was simply due to his mistaken belief that the issue already had been conclusively decided in a prior appeal.

Worse still, counsel utterly failed to investigate White’s background for mitigating circumstances. Had he done so, counsel would have found abundant and readily available evidence that White was suffering from serious mental illness as well as Graves’ disease

and its attendant neuropsychological effects. White also struggled with low intellectual functioning and had a troubled and abusive childhood. None of this background evidence was presented at his resentencing hearing. Instead, counsel relied on and presented White’s statement to the probation officer that "he had a normal childhood and enjoyed growing up."

White filed a federal petition for a writ of habeas corpus based on ineffective assistance of counsel at his resentencing, which the district court denied.¹ We reverse and remand with instructions to grant a conditional writ. Under similar circumstances, the United States Supreme Court has held that even less egregious lapses by defense counsel violated the defendant’s Sixth Amendment rights. The state court’s finding that counsel performed reasonably was an unreasonable application of this precedent, and the state court’s prejudice determination was contrary to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We hold White’s counsel performed deficiently by failing to challenge evidence that White committed the murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors, including the unreasonable decision not to hire any experts to assist with the penalty phase. Reviewing de novo, we conclude that but for counsel’s errors, it is reasonably likely that the result would have been different. This was a relatively weak case for imposition of the death penalty. Even the trial prosecutors believed that the death penalty was inappropriate because this was a "run-of-the-mill" case, Susan was the "mastermind" behind the murder, and White succumbed to pressure from her to commit the crime. White had no criminal record when he committed the murder at age 36, pecuniary gain was the only aggravating factor, and there was substantial evidence that White acted out of love or infatuation rather than profit.

I. Factual Background

White met Susan in January 1987 when they worked together at a nursing home in Prescott, Arizona.² At the time, Susan was in a relationship with David. White was living with another woman, Becky Fisher, whom he had recently married. White began visiting Susan at her home every day, and they began a romantic relationship.

That April, White and Susan went to Michigan, where they lived together and worked at the same nursing home. David apparently felt "burned" by Susan, but still continued contact with her despite his friends’ "serious misgivings." One friend believed that Susan was "taking advantage of him" based on things that David had said.

In October, Susan returned to Bagdad, Arizona, and White to Prescott. They continued their sexual relationship notwithstanding Susan’s engagement and subsequent marriage to David. White and Susan spoke on the phone up to six times each day when David was at work, and White was frequently at Susan’s house. At a restaurant where White worked for a few weeks that fall, he told a server about his "girlfriend." According to White, he and his girlfriend "were planning on getting married sometime" although "she was living with someone else in Bagdad." This other boyfriend "had money," which White’s girlfriend "was going to use ... to start a business." White said that he and his girlfriend were planning to go to Phoenix, where they would start the business or go to school.

After Susan’s marriage, White began to visit Fisher, purportedly to visit their children and "get back with" Fisher, but he used her phone to call Susan. Around November 1, White told Fisher that Susan had asked him to help kill David. He explained that Susan "wanted to be with [him]." White also said that Susan was marrying David "[b]ecause of his money" and that "as soon as David put everything into [Susan’s] name ... something was going to happen to David." Several days later, White admitted to Fisher that he was "confused" and "didn’t know what to do" about Susan’s request that he kill David. White also told another friend, Carol Sexton, that "Susan was planning to kill David" and "wanted [him] to do it."

In early November, Susan called several insurers about life insurance policies. She called Colonial Penn Insurance in Prescott to inquire about the "time frame on life insurance policies," and in particular, "when you can receive monies." She also called Mutual of Omaha Insurance in Prescott to inquire about a $100,000 life insurance policy. Susan expressed concern about how long it would take the insurer to pay out if David were accidentally killed in the mine where he worked. Later that month, Susan told the agent that the payout would be enough to open a nursing home in Michigan, where she had family. Susan also arranged with David’s employer to add herself and her two children from a previous marriage to David’s life insurance policy.

Around November 10, White and Sexton had another conversation about Susan. Susan had told White that David "just took out a big life insurance policy" for $100,000. A few days later, White told Sexton that "Susan still had the crazy idea about killing David, and she still wanted [him] to do it." Sexton "tried to talk [White] out of it." White agreed with Sexton that "you just don’t take another man’s life."

On November 19, at a pawn shop, White made a down payment on the .357 magnum revolver that he used to kill David. He made a second payment the next day, and on November 27 he returned to pay the remaining balance and pick up the weapon.

Around November 20, when Fisher was upset with White for not making child support payments, he told her that she "didn’t have to worry about money" because he would be getting $100,000 from Susan. A few days later he told Fisher that "he didn’t get the money." Sometime in November, White asked Fisher if he could stay with her on December 15 and 16 because he "needed a place to stay." When pressed, he admitted to Fisher that "something might happen to David" and he needed an alibi. Fisher refused.

On December 12, at approximately 11:00 p.m., David and Susan’s neighbors heard gunshots at the Johnson residence. Neighbors saw a man run from the Johnsons’ carport, get into a green car, and drive off. Shortly thereafter, David walked to a neighbor’s home, where he collapsed, covered in blood. He had been shot in his chin and lower back with a .357 magnum revolver.³ Before he died, David stated that his assailant was an unknown man wearing a mask. Susan claimed that David had identified the shooter as her ex-husband, Clifford Minter. Minter’s name and the description of the green car were broadcast over the police radio.

An officer on his way to the murder scene stopped a green sedan heading away from Bagdad. White was the sole occupant. White stated that he had just dropped off a companion in Bagdad and was heading back to Prescott. Because the officer was looking for Minter, he let White proceed.

The police soon discovered that Minter was not involved in the shooting and began to focus their investigation on White and Susan. White traveled to Phoenix, where he sold the revolver used to kill David to a pawn shop. While White was staying at various motels in Phoenix, he and Susan made several calls to each other.

White was arrested in Phoenix on December 18. Officers searched his car and found an empty box of .38 caliber bullets, a holster, a ski mask, and a bag of potatoes. They concluded that the murderer had placed a potato over the barrel of the revolver to act as a silencer due to pieces of dried potato with gunpowder particles found at the scene of the shooting and potato starch found on the barrel of the revolver and David’s glasses. White’s car also contained a glove with human blood stains on it and an envelope. On the back of the envelope was...