Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, Senior District Judge, Presiding D.C. No. 2:97-cv-00146-RCB
The opinion of the court was delivered by: Callahan, Circuit Judge:
July 26, 2012-San Francisco, California
Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
This is the second time Daniel Wayne Cook seeks habeas review in this court. See Cook v. Schriro, 538 F.3d 1000, 1007 (9th Cir. 2008). Three things have happened since we issued our decision in 2008. First, the Supreme Court issued its decision in Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). Martinez "changed the landscape with respect to whether ineffectiveness of post-conviction counsel may establish cause for procedural default." Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir. 2012). Second, the State of Arizona issued a death warrant and set August 8, 2012, as Cook's execution date. Third, the district court denied Cook's Federal Rule of Civil Procedure 60(b)(6) motion for relief from judg- ment under Martinez. Cook v. Ryan, No. 97-cv-00146-RCB, 2012 WL 2798789 (D. Ariz. July 9, 2012) (unpublished).*fn1
Cook asserts that his pretrial counsel was ineffective and that his post-conviction relief ("PCR") counsel was ineffective in Cook's presentation of that claim. In Cook's view, Martinez requires us to excuse his procedural default because of ineffective assistance of counsel ("IAC") in his state PCR proceedings. Cook also asks us to stay his execution so that he may further pursue his underlying pretrial IAC claim.
We affirm the district court's decision to deny Cook's Rule 60(b) motion and deny Cook's motion for a stay of execution. Martinez does not apply to this case given Cook's decision to represent himself during his trial and at sentencing. Even if Martinez does apply, that decision affords Cook no relief because his pretrial IAC claim lacks merit.
A unique feature of this case, and one that informs much of our analysis, is that Cook's pretrial counsel ceased to represent Cook after seven months, at which point Cook decided to represent himself. The propriety of Cook's waiver of counsel has been fully litigated and is not at issue in this appeal. During his limited period of representation, Cook's pretrial counsel acted competently by, among other things, procuring two mental evaluations and a hearing on Cook's competence to stand trial. Indeed, in Cook's waiver of counsel hearing, Cook stated that his lawyer "has worked hard for my defense; [he] cares about the outcome of my trial."
Cook's pretrial counsel cannot be faulted for failing to develop a mitigation case based on information that Cook knew but decided not to disclose, either before or during sen- tencing. Even if such fault could be assigned to Cook's pre-trial counsel, Cook cannot show prejudice because Cook affirmatively chose not to present any mitigation information. Moreover, the same judge who sentenced Cook in 1988 recently reviewed most of the "new" mitigation information Cook has since developed and concluded that it would not have changed his decision. Thus, even assuming Martinez applies to this case, Cook has not raised a "substantial" claim that his pretrial counsel was ineffective.
The facts are set forth in our opinion affirming the denial of Cook's first federal habeas petition, as well as in the Arizona Supreme Court's opinion denying Cook's direct appeal. See Cook v. Schriro, 538 F.3d 1000, 1008-09 (9th Cir. 2008); State v. Cook, 821 P.2d 731, 736-37 (Ariz. 1991). To summarize, at about 6 p.m. on July 19, 1987, Cook suggested to his roommate, John Eugene Matzke, that the two men steal money from Carlos Cruz-Ramos, a co-worker at a local restaurant who recently had moved in with Cook and Matzke. After Cruz-Ramos realized his money was gone, Cook and Matzke tied Cruz-Ramos to a chair and tortured him for six hours. Among other things, Cook and Matzke beat Cruz-Ramos with a metal pipe; burned his chest, stomach, and genitals with cigarettes; and cut his chest with a knife. Cook also raped Cruz-Ramos and stapled Cruz-Ramos's foreskin to a chair. Matzke finally strangled Cruz-Ramos to death with a metal pipe, and the two men put his body in a closet.
At around 2:30 or 3 a.m., Kevin Swaney arrived at Cook and Matzke's apartment. Swaney was a 16-year-old dishwasher at the restaurant where Cook and Matzke worked. Cook originally told Swaney to go away, but then invited him in. Cook barricaded the door after telling Swaney that he and Matzke had drugs they wanted to get rid of. Cook took Swaney upstairs and showed him Cruz-Ramos's body. When they returned downstairs, Swaney was crying. Cook and Matzke forced Swaney to undress and then gagged him and tied him to a chair. Matzke told Cook he wanted no part of any torture, and went to the living room and fell asleep. At around 4:30 or 5 a.m., Cook woke Matzke. Swaney remained tied and gagged and was crying. Cook told Matzke they had to kill Swaney because he (Cook) had raped him. Cook then strangled Swaney, and the two men put his body in the closet. Cook and Matzke went to sleep.
Matzke went to work that afternoon but returned home a few hours later. He and Cook went to a bar and then hung out with Byron Watkins and other friends by the pool of their apartment complex, as well as in their apartment. The following morning, Matzke showed Watkins the bodies. Watkins convinced Matzke to go to the police. The two men went to the police department, whereupon Matzke gave a videotaped statement.
The police went to Cook and Matzke's apartment and arrested Cook. After receiving Miranda warnings, Cook said, "we got to partying; things got out of hand; now two people are dead." Cook then said, "my roommate killed one and I killed the other." He specifically admitted choking Swaney to death. After making these statements, Cook refused to say anything further.
1. Proceedings before and during trial
The long procedural history of this matter is set forth in Cook, 538 F.3d at 1009-14. As relevant here, Cook and Matzke were charged with two counts of first-degree murder, including a death penalty allegation under Arizona Revised Statute § 13-703. The trial court appointed attorney Claude Keller (hereinafter "pretrial counsel") to represent Cook. A grand jury returned an indictment on two counts of first-degree murder against both defendants.
Cook was given two pretrial psychological evaluations. After a hearing, the trial court concluded that Cook was competent to stand trial. Cook was then given an additional neurological examination, the results of which were filed with the trial court. A couple of months later, Cook filed a pro se motion to waive counsel and have his counsel appointed as advisory counsel. During the ensuing hearing, Cook asked that the trial court "not appoint Mr. Keller as my legal advisor." Cook explained, "Mr. Keller has worked hard for my defense; cares about the outcome of my trial. My personal belief[ ] is that he cannot advise me according to my defense." Cook asked for a specific attorney, but the trial court said only someone else was available, whom Cook rejected. The trial court explained at length the perils of self-representation, but Cook still wanted to proceed pro se. The court then conducted extensive questioning pursuant to Faretta v. ...