and Submitted En Banc January 11, 2016 Pasadena, California
from the United States District Court for the District of
Arizona, No. 4:03-CV-00213-CKJ Cindy K. Jorgenson, District
S. Sandman (argued), Federal Public Defender's Office,
Tucson, Arizona; Amy Krauss, Law Office of Amy B. Krauss,
Tucson, Arizona; for Petitioner-Appellant.
Pressley Todd (argued), Assistant Attorney General; Kent
Cattani, Chief Counsel; Mark Brnovich, Attorney General of
Arizona; Capital Litigation Section, Office of the Attorney
General, Phoenix, Arizona; for Respondent-Appellee.
Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber,
M. Margaret McKeown, Kim McLane Wardlaw, Marsha S. Berzon,
Richard R. Clifton, Consuelo M. Callahan, N. Randy Smith,
Morgan Christen, Paul J. Watford, and John B. Owens, Circuit
Corpus / Death Penalty
banc court affirmed the district court's judgment denying
Arizona state prisoner Eric Owen Mann's 28 U.S.C. §
2254 habeas corpus petition challenging his conviction and
capital sentence for two counts of first-degree murder.
banc court held that Mann is not entitled to relief on his
claims of guilt-phase ineffective assistance of counsel.
his claim of ineffective assistance of counsel at sentencing,
Mann argued that the state post-conviction court applied an
improper "more-likely-than-not" prejudice standard.
The en banc court concluded that the state post-conviction
court's invocation of the Strickland prejudice
standard might have been ambiguous but was not clearly
incorrect. As a result, Mann's petition presented this
court with the question: When, in the absence of clarity, can
this court conclude that a state court has applied the wrong
standard to review a Strickland claim raised in a
petition for post-conviction relief? The en banc court held
that it must approach this question with the deference AEDPA
requires and grant habeas relief only if no fairminded jurist
could conclude that the adjudication was consistent with
clearly established Supreme Court precedent. The en banc
court held that fairminded jurists could conclude that the
state court's review of Mann's claim of ineffective
assistance of counsel comported with Strickland.
Mann's argument, in reliance on Eddings v.
Oklahama, that the state court improperly excluded
mitigating evidence presented during post-conviction
proceedings on the ground that Mann had not demonstrated a
causal link between the evidence and the crime, the en banc
court explained that Eddings cannot provide a back
door to de novo review where there is no indication that the
state post-conviction court excluded evidence that would have
led to a reasonable probability of a different sentence in
violation of clearly established federal law.
banc court held that it was not contrary to, and did not
involve an unreasonable application of, federal law for the
state court to conclude that Mann failed to show that the
mitigating circumstances he presented before the sentencing
and post-conviction courts outweighed the aggravating
circumstances of his crimes.
AEDPA deference to the state court's conclusion that Mann
was not prejudiced by his counsel's alleged failure to
present certain mitigation evidence at sentencing, the en
banc court could not conclude that it was unreasonable for
the state post-conviction court to find that the new evidence
as to Mann's capacity for remorse and the effect of a
1985 car accident on Mann's behavior did not undermine
confidence in the outcome of sentencing.
in part and dissenting in part, Chief Judge Thomas agreed
with the majority that Mann is not entitled to relief on his
guilt-phase claims of ineffective assistance of counsel, and
disagreed that he is not entitled to relief on his claim of
ineffective assistance of counsel at sentencing.
in part and dissenting in part, Judge Christen, joined by
Judge Berzon, agreed with the majority and the Chief Judge
that petitioner did not meet his burden of establishing a
meritorious guilt-phase claim, joined the Chief Judge's
analysis and conclusion that Mann is entitled to de novo
review on his sentencing-phase ineffective assistance of
counsel claim, joined the Chief Judge's discussion of
Strickland's deficient performance prong, but
concluded that Mann is not entitled to relief because she was
not persuaded that he met his burden of establishing
CLIFTON, Circuit Judge:
Eric Owen Mann lured Richard Alberts and Ramon Bazurto to his
house in 1989 with a promise to sell them cocaine for about
$20, 000. Instead, he took the money and shot both men to
death. Mann was eventually arrested and tried in Arizona
state court in 1994. A jury found him guilty on two counts of
first-degree murder, and the trial judge sentenced him to
death, noting his long criminal history and his apparent lack
of remorse for the killings. Following the affirmance of his
convictions and sentence by the Arizona Supreme Court, Mann
filed a petition for post-conviction relief in state court in
2000 asserting, among other claims, that he had received
ineffective assistance of counsel at trial and sentencing.
That petition was assigned to the same judge who had presided
over Mann's trial and imposed the capital sentence upon
him a few years before. The judge denied in full Mann's
petition for post-conviction relief, and the Arizona Supreme
Court thereafter denied Mann's petition for review. Mann
then filed a petition for habeas corpus under 28 U.S.C.
§ 2254 in federal district court. That petition was
denied, and Mann appeals.
primary importance here is Mann's argument that the state
post-conviction court applied the wrong standard to his claim
of ineffective assistance of counsel at sentencing, in
violation of Supreme Court precedent in Strickland v.
Washington, 466 U.S. 668 (1984). Because of this error,
Mann argues, our review of that claim should not be
constrained by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), which requires federal courts to defer
to state court decisions on the merits of habeas corpus
claims unless they are contrary to clearly established
federal law. 28 U.S.C. § 2254(d). After careful review
of the underlying state court decision, we conclude that its
invocation of the Strickland prejudice standard
might have been ambiguous but was not clearly incorrect. As a
result, Mann's petition presents us with the question:
When, in the absence of clarity, can we conclude that a state
court has applied the wrong standard to review a
Strickland claim raised in a petition for
post-conviction relief? The answer is that we must approach
this question with the deference AEDPA requires and grant
habeas relief only if no fairminded jurist could conclude
that the adjudication was consistent with clearly established
Supreme Court precedent. See Harrington v. Richter,
562 U.S. 86, 101 (2011).
fairminded jurists could conclude that the state court's
review of Mann's claim of ineffective assistance of
counsel comported with Strickland. Applying AEDPA
deference to Mann's claims, we conclude that the state
post-conviction court's denial of post-conviction relief
was not contrary to, or an unreasonable application of,
federal law. We therefore affirm the district court and deny
Mann's petition for habeas relief.
fall of 1989, a few weeks before Thanksgiving, Mann arranged
to sell Richard Alberts a kilogram of cocaine in exchange for
about $20, 000. Mann never intended to provide Alberts with
the drugs. Instead, he planned to hand Alberts a shoebox full
of newspaper and take his money in exchange. He knew he would
have to kill Alberts after this transaction took place.
evening of Thanksgiving Day, Alberts arrived at Mann's
house to complete the sale, accompanied by another man, Ramon
Bazurto. Mann's girlfriend, Karen Miller, was also at the
house to provide Mann with backup. Miller testified that when
Mann saw Alberts had brought along someone else, he became
upset, but after a brief hesitation decided he would
nevertheless go through with his plan to rip Alberts off. The
three men and Miller went to Mann's bedroom, where
Alberts handed Mann the money and Mann gave Alberts the
newspaper-filled shoebox. When Alberts lifted the top of the
box, Mann shot him and then Bazurto.
died almost instantly from a shot through the heart. Bazurto
took longer to die. He fell onto his back and lay on the
ground, attempting to move his hand towards the pistol he was
carrying in his waistband. According to Miller's
testimony, Mann stood over Bazurto's prone body and
described what was happening as Bazurto lost motor control
and died. Miller testified that Bazurto continued to move for
three to five minutes after being shot.
then called a friend, Carlos Alejandro, to help him dispose
of the two bodies. They dumped the bodies on the side of a
gravel road. The next day, Mann and Miller cleaned the
apartment and patched the walls where the bullets that had
killed Alberts and Bazurto had entered. Mann gave
Alberts's car to a friend and disposed of his guns and
the recovered bullets. When police later questioned Mann as
to the whereabouts of Alberts and Bazurto, Mann responded
that the two men had come to his house on the evening of the
murders to conduct a drug deal, but had left after Mann and
Alberts failed to agree on a price for the drugs.
case remained unsolved for four years. Then, in late 1993,
Miller ended her relationship with Mann because of increasing
domestic violence. She told the police about the murders in
January of 1994. Mann was arrested after the police
corroborated Miller's story with Alejandro and the man to
whom Mann had sold Alberts's car.
jury trial took place over five days in the Superior Court of
Pima County, Arizona. Judge John F. Kelly presided. David
Sherman, a criminal defense attorney in private practice, was
appointed as Mann's counsel. Sherman pursued the theory
that Mann had acted in self-defense.
before trial commenced, Sherman told the judge that he would
not be calling any witnesses "except for Mr. Mann."
Sherman successfully persuaded the trial court that, should
Mann testify, his previous conviction for burglary would be
excluded from evidence and any mention of his previous
conviction for felony possession of a firearm would be
limited to the fact that he had been convicted of a felony.
trial, the state presented testimony from six witnesses,
including Miller and Alejandro, both of whom had been granted
immunity from prosecution for their roles in the crime.
Miller and Alejandro testified that the murders had been
premeditated. Mann ultimately did not testify, and Sherman
did not call any witnesses of his own, instead attempting to
discredit the state's witnesses through cross-
examination. The jury found Mann guilty of two counts of
first-degree murder on November 1, 1994.
weeks later, the court granted Sherman's request that
Mann undergo psychological evaluation prior to sentencing.
Sherman recommended that the court appoint Dr. Todd Flynn, a
psychologist with the court psychological clinic. With the
consent of the attorney for the state, the judge agreed to
appoint Dr. Flynn to perform an evaluation.
Flynn diagnosed Mann with alcohol abuse or dependence,
polysubstance abuse or dependence, and antisocial personality
disorder. He also noted that Mann had scored highly for
"acting out" on the Minnesota Multiphasic
Personality Inventory-2 scale, and made the following
As a group, people with acting out as a primary psychological
defense tend to be emotionally shallow, deficient in their
capacity for empathy, poor at frustration tolerance,
unwilling or unable to delay gratification, and poor at
anticipating the consequences of future actions. When
combined with a history of victimization of others, this
group becomes the worst of offenders because there is little
sense of conscience or inhibition to stop the criminal
lifestyle. Those who act out intensively and in a criminal
manner may also qualify for the designation of Psychopath . .
report concluded, "It is more probable than not that Mr.
Mann fits this designation."
state's presentence report concluded that three
aggravating factors were present in the crime: it was
committed for pecuniary gain, there were two victims, and
Bazurto's murder was committed "in an especially
heinous, cruel or depraved manner." Sherman argued for
ten mitigating factors: Mann's positive relationship with
his daughters, his positive influence on his mother, his
unstable and abusive family background, his poor educational
experience, his history of substance abuse, his remorse, his
cooperation with authorities, his non-violent history, his
good behavior while incarcerated, and the disparity between
his sentence and Miller and Alejandro's sentences.
sentencing hearing, which took place on January 31, 1995,
four witnesses testified in support of Mann: a former boss, a
former co-worker, his older daughter, and his mother. Mann
also submitted a handwritten autobiography.
Kelly found that the state had demonstrated all three of the
aggravating circumstances they had identified: (1) the crime
was committed for pecuniary gain, (2) there were two victims,
and (3) Bazurto's murder was committed "in an
especially heinous, cruel or depraved manner."
mitigating factors, he found that Mann had a positive
relationship with his daughters and his mother, an abusive
and unstable family background, a poor educational
experience, a history of substance abuse, good conduct while
incarcerated, and recent stable employment. The judge
declined to find that Mann had cooperated with the
authorities, that he had a non-violent history, or that a
capital sentence would be disproportionate to sentences
imposed on Miller and Alejandro.
judge concluded that Mann, "by his actions for a period
of four years . . . showed no indication of any remorse,
particularly his actions as introduced at trial after the
murders." The court noted that in his autobiography Mann
described getting into a car accident in which two people
died, but observed that "he indicates no remorse in that
situation." Ultimately, the judge concluded: "[T]he
defendant is not capable of remorse. The psychological
evaluation is that he has an anti-social personality disorder
and that he is a psychopath. Basically, that he has no
conscience. The Court believes that his expression[s] of
remorse are not genuine." The judge sentenced Mann to
death on both counts of murder.
appealed to the Arizona Supreme Court, which affirmed.
State v. Mann, 934 P.2d 784 (Ariz. 1997) (en banc).
The United States Supreme Court denied Mann's petition
for a writ of certiorari. Mann v. Arizona, 522 U.S.
895 (1997) (mem.).
Post-conviction relief proceedings
filed for post-conviction relief under Rule 32 of the Arizona
Code of Criminal Procedure. He alleged, among other claims,
that he had been denied effective representation of counsel
at trial and sentencing and that newly discovered evidence
probably would have changed the verdict at the trial or
sentencing. Among the arguments in his post-conviction brief,
Mann claimed that Sherman "did little mitigation
investigation or preparation for the mitigation
hearing." The brief described Mann's 1985 automobile
accident in great detail, including his remorse at the deaths
of his two passengers, the injuries to his leg and head, and
the changes in his personality and circumstances that
also filed two additional expert reports: one from Dr.
Richard Hinton, a clinical psychologist, and one from Dr.
James Comer, a clinical neuropsychologist. Dr. Hinton's
Despite Mr. Mann's extremely difficult childhood and his
relatively long pedigree as a violator of the law, it does
appear that his functioning changed dramatically following
the automobile accident. At that time he experienced a severe
injury to his leg which caused him to be unable to work and
which resulted in mounting debt. It also appears likely that
he was tormented by a sense of guilt that he was somewhat
responsible for the death of the two passengers in his car.
From that time forward he began to behave much more
aggressively and to use cocaine much more regularly.
Comer's report concluded that "Mann appears to have
experienced a T[ramuatic ]B[rain ]I[njury] leading to subtle
though lasting cognitive deficits and other symptoms of
post-conviction proceedings were assigned to Judge Kelly, the
same judge who had presided over Mann's trial and
sentencing. Judge Kelly held several evidentiary hearings, in
which he heard testimony from Miller,  Mann, Sherman,
and Dr. Comer. The bulk of the post-conviction factfinding
concerned the 1985 car crash. Miller testified that
"[t]hings took a drastic turn" after the accident,
that the doctors who examined Mann after the accident were
"very concerned that he had had some head injuries,
" and that he became "very depressed." In
particular, she said, the information that Mann's
14-year-old passenger had been decapitated in the accident
"really tore him up" and "many times he said
he wished he had died in the accident too." Mann
testified that he had "suffered some type of
concussion" as a result of the accident and that the
accident "was a huge burden emotionally, physically, the
way it affected friends, family." Sherman testified that
he had not learned of the severity of the accident until
after Mann's conviction and that he was "not focused
on mitigation" during his representation.
Comer testified that some of Mann's test results
suggested "that he may have experienced a head injury,
from which he recovered rather well in most respects, but
which had left [him] with some residual, subtle cognitive
deficits." Dr. Comer noted that it was the "typical
course of events" for the effects of a brain injury to
be more severe closer in time to the accident, and that
behavioral changes stemming from a brain injury generally
"take the form of increased aggression, sexual
indiscretions, poor ability to monitor one's behavior,
difficulty in appreciating the effect of one's behavior
on other individuals, increased irritability, agitation at
times, [and increased] egocentricity." He also noted
that the records that he reviewed "certainly indicated
that there was a significant behavioral and emotional change,
perhaps some change in personality as well" that
occurred after the 1985 accident. He clarified that any one
of the test results "could easily have been produced by
other factors as well, " but that the significant
majority of the test results "fell into that cluster of
tests that are known to be sensitive to subtle, longlasting
effects" from brain damage.
Kelly responded to Dr. Comer's testimony by commenting
that it was "not clear how such a brain injury could
have a role" in Mann's crimes, as they had been
planned out in advance without "any indication . . .
that the murders were committed out of anger or
irritability." Dr. Comer replied that he was not stating
a finding that Mann's head injury caused him to commit
the crimes but rather that "some of the behavior we see
postconcussion could produce the disinhibitory
aggression" that followed Mann's accident.
Kelly denied Mann's Rule 32 petition in full in an order
that will be discussed in more detail below. Subsequently,
the Arizona Supreme Court summarily denied Mann's
petition for review on all issues except for the jury
determination of aggravating factors, which is not at issue
in this appeal. Mann then filed a federal habeas petition in
the District of Arizona. The district court denied the
petition but issued a Certificate of Appealability for three
claims: that the Arizona Supreme Court violated Mann's
Eighth Amendment rights in reviewing his death sentence, that
he received ineffective assistance of counsel at trial, and
that he received ineffective assistance of counsel at
sentencing. Mann has limited his appeal to the two claims of
ineffective assistance of counsel.
three-judge panel of this court unanimously affirmed the
denial of habeas relief for ineffective assistance of counsel
at trial, but, over a dissent, reversed the denial of habeas
relief for ineffective assistance of counsel at sentencing.
Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014). A
majority of the nonrecused active judges on our court
subsequently voted to rehear the case en banc. Mann v.
Ryan, 797 F.3d 654 (9th Cir. 2015) (mem.). We affirm the
district court's denial of habeas relief on the
ineffective assistance of counsel claims at both trial and
Antiterrorism and Effective Death Penalty Act
Mann filed this petition for habeas corpus after April 24,
1996, AEDPA applies to his claims. See Lindh v.
Murphy, 521 U.S. 320, 326 (1997). Under that statute we
may not grant an application for habeas corpus for any claim
adjudicated on the merits in state court unless the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). We review the last reasoned state
court decision according to this deferential standard.
Towery v. Ryan, 673 F.3d 933, 944 (9th Cir. 2012)
(per curiam). The district court's application of AEDPA
to the last reasoned state court decision is a mixed question
of law and fact ...