The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
Order Regarding Respondent's Motion for Reconsideration of Order Granting Petition and Vacating December 14, 2009 Hearing
An order granting the petition for writ of habeas corpus filed by Petitioner Douglas Ray Stankewitz ("Stankewitz") was issued September 22, 2009, and judgment entered concurrently. On October 1, 2009, Respondent Robert Wong ("the Warden") filed a request for stay of the judgment and a motion for reconsideration, setting a hearing on the motion for Monday, December 14, 2009, at 2:30 p.m. An order granting the Warden's request for a stay of the judgment pending resolution of the motion for reconsideration was issued October 15, 2009. Stankewitz filed an opposition to the motion for reconsideration November 30, 2009.
The Warden presents two objections to the order granting the petition:
1. This Court's conclusion granting the petition fails to recognize the extent to which the factual allegations relied on by the Ninth Circuit were decimated on remand and misconstrues the extent to which the Ninth Circuit's prejudice assessment dictated the conclusion in light of those changed facts.
The Warden asserts the Ninth Circuit's opinion was rendered under the assumption that Stankewitz's allegations were true in finding that trial counsel was ineffective in failing to adequately investigate and present mitigation, and that it became clear on remand Stankewitz's allegations included falsehoods, misrepresentations, and exaggerations which completely undermined the claim.*fn1
In light of these changes, the Warden asserts the Ninth Circuit's conclusion that a "more complete presentation" could have made a difference in Stankewitz's sentence, and that "there was a reasonable probability that the jury would not have sentenced Stankewitz to death" with the presentation of this evidence, has been completed undermined.
The Warden contends that Stankewitz's emotional outbursts and acts of violence over the course of his life, as chronicled in the order granting the petition,*fn2 do not establish prejudice but simply confirm the numerous diagnoses that Stankewitz was a sociopath. The Warden asserts there is no reasonable probability that presentation of such evidence would have impacted the sentence imposed by jurors in both of Stankewitz's trials, and that it is highly improbable that the failure to present this evidence was prejudicial.
Stankewitz responds that the Warden's motion rehashes arguments made in his brief on remand, which remain unavailing. Stankewitz urges the Court to make additional findings of prejudice due to trial counsel's failure to present evidence of his sub-average intellectual functioning, his drug use around the time of the crime, and further evidence of his family history.
Accepting the Warden's argument that Goodwin's review of the investigation files from Stankewitz's first trial would satisfy the performance prong of Strickland, and so undermine the Ninth Circuit's conclusion that trial counsel was ineffective for failing to investigate, it does not undermine the Ninth Circuit's conclusion of prejudice: that a "more complete presentation, including even a fraction of the details Stankewitz now alleges," could have made a difference in the sentence. Stankewitz v. Woodford, 365 F.3d 706, 724-725 (9th Cir. 2004).
2. The Court's conclusion fails to address the significance of Schriro v. Landrigran, 550 U.S. 465 (2007) with respect to Stankewitz's opposition of a penalty phase defense.
The Warden observes that in rejecting Stankewitz 's petition in 2000, this Court noted that Stankewitz was opposed to presenting any penalty defense, and particularly to any defense which involved the use of family members as witnesses or the use of expert witnesses. On remand, the Ninth Circuit responded that Stankewitz's purported objections to mitigating evidence appears not to have been 'informed and knowing' since there was no evidence trial counsel conducted an adequate investigation. The Warden contends, as he did in his brief on remand, that it is now known trial counsel did obtain and review all the evidence from the first trial and appeal, and given that Stankewitz received a death sentence after his counsel at the first trial conducted a full investigation, his objection was informed and knowing. The Warden argues that following the Ninth Circuit's remand, a United States Supreme Court case cast substantial doubt on whether there is an informed and knowing requirement for a defendant's decision not to present mitigation. Schriro v. Landrigan, 550 U.S. 465, 478-79 (2007). The Warden contends that absent an informed and knowing requirement, trial counsel's acceptance of Stankewitz's desire not to present further mitigation was clearly not prejudicial. The Warden urges this Court to address the issue and the impact of the Landrigan decision.
Stankewitz responds the Ninth Circuit already has rejected, as "belied by the record," the argument that trial counsel was justified in not presenting mitigation due to Stankewitz's alleged opposition. Further, Stankewitz notes this Court found the uncontested facts were sufficient to establish prejudice from trial counsel's failure to present more than a minimal case in mitigation. Stankewitz asserts the Warden has not disputed most of the basic facts regarding trial counsel's performance,*fn3 and has instead repeated the unsuccessful argument that trial counsel's failure to present available mitigation is excused by Stankewitz' s alleged objections. As noted by the Ninth Circuit and shown by the record, trial counsel did introduce penalty phase witnesses, including a member of Stankewitz's family (by marriage), and a probation officer who testified briefly about Stankewitz's abuse and early institutionalizations. Stankewitz argues that where trial counsel has not refrained from presenting mitigation evidence, disregarding any objections by the defendant, the effect of an alleged refusal to cooperate does not need to be analyzed. Hamilton v. Ayers, 583 F.3d 1100, 1119 (9th Cir. 2009). Stankewitz notes that while this Court found trial counsel's conduct unreasonable, the Warden's continuing arguments on this issue have not been explicitly rejected, and asserts the Court should do so now to clarify the record on appeal.
Landrigan is distinguishable from Stankewitz's case. Mr. Landrigan stated to the trial court that he did not want mitigation presented, and when the trial judge questioned counsel about available mitigation, Mr. Landrigan interrupted with contradictory and damaging information. 550 U.S. at 469-470. As noted in the 2000 order denying the petition, Stankewitz made appropriate and understandable objections to various events during the trial, indicating he could, and did, make his objections known. See Doc. 448 at p. 18-19. But despite his ...