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Mann v. Ryan

United States Court of Appeals, Ninth Circuit

July 15, 2016

Eric Owen Mann, Petitioner-Appellant,
v.
Charles L. Ryan, Respondent-Appellee.

          Argued and Submitted En Banc January 11, 2016 Pasadena, California

         Appeal from the United States District Court for the District of Arizona, No. 4:03-CV-00213-CKJ Cindy K. Jorgenson, District Judge, Presiding

          Cary S. Sandman (argued), Federal Public Defender's Office, Tucson, Arizona; Amy Krauss, Law Office of Amy B. Krauss, Tucson, Arizona; for Petitioner-Appellant.

          John 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 Judges.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The en 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.

         The en banc court held that Mann is not entitled to relief on his claims of guilt-phase ineffective assistance of counsel.

         Regarding 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.

         Regarding 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.

         The en 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.

         Applying 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.

         Concurring 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.

         Concurring 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 prejudice.

          OPINION

          CLIFTON, Circuit Judge:

         Petitioner 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.

         Of 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).

         Here, 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.

         I. Background

         A. The murders

         In the 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.

         On the 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.

         Alberts 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.

         Mann 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.

         The 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.

         B. Trial

         Mann's 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.

         The day 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.

         At 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.

         Two 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.

         Dr. 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 observation:

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 . . . .

         The report concluded, "It is more probable than not that Mr. Mann fits this designation."

         The 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.

         At the 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.

         Judge 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."

         As for 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.

         The 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.[1]

         Mann 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.).

         C. Post-conviction relief proceedings

         Mann 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 resulted.

         Mann 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 report concluded:

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.

         Dr. 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-concussional syndrome."

         The 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, [2] 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.

         Dr. 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.

         Judge 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.

         Judge 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.

         A 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 sentencing.

         II. Legal Standards

         A. Antiterrorism and Effective Death Penalty Act

         Because 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 court adjudication:

(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; or
(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 ...


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