WILLIAMS v. RYAN
Aryon WILLIAMS, Petitioner-Appellant,
v.
Charles L. RYAN, Respondent-Appellee.
United States Court of Appeals
For the Ninth Circuit
No. 07-99013.
Argued and Submitted Nov. 5, 2009. -- October 26, 2010
Before MARY M. SCHROEDER, MARSHA S. BERZON and SANDRA
S. IKUTA, Circuit Judges.
Julie Hall, Oracle, AZ, for petitioner-appellant,
Aryon Williams.Jeffrey A. Zick, Phoenix, AZ, for respondent-appellee,
Charles L. Ryan.
OPINION
Aryon Williams was convicted in Arizona state court
in 1992 and sentenced to death for the first degree murder of his former
girlfriend Rita DeLao, and for the later robbery and attempted murder of
Norma Soto. The Arizona appellate courts upheld his convictions and
sentence. See State v. Williams, 904 P.2d 437 (Ariz.1995). In this
habeas proceeding, the most significant issues concern a claim of
concealment of partially exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and the failure of the state court to
consider mitigating evidence at sentencing in violation of Lockett v.
Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104 (1982).
The evidence at trial included the testimony of
Michelle Deloney, Williams' then girlfriend, that Williams had confessed
to her he murdered DeLao. The murder occurred in a relatively remote
area of Pinal County, Arizona and there were no eyewitnesses and little
physical evidence. On the robbery/attempted murder charge, the victim,
Norma Soto, testified at trial and identified Williams as her attacker.
Two years after the convictions were affirmed on
appeal, an Assistant Attorney General for Arizona turned over to
Williams' attorney a packet of jailhouse letters written before trial
that suggested that Williams was not the actual murderer. These letters
suggested that Williams had paid another man, Patrick Fields, to do the
job. The jailhouse letters led Williams to two witnesses who said they
had seen Fields disposing bloody clothing in a park a morning around the
time of the murder. Fields turned out to have a history of assaulting
women.
By the time Williams became aware of this evidence,
these federal habeas proceedings had been instituted. The district court
stayed the proceedings so that Williams could, in state court, exhaust a
Brady claim arising from the jailhouse letters. The state court, however,
refused to grant a request for a first extension of time to prepare a
postconviction petition. Williams was, therefore, unable to exhaust
state remedies. When he returned to federal court, the district court
rejected the State's position that the Brady claim was procedurally
barred, but denied the claim on the merits. Like the district court we
consider this claim without regard to the deferential strictures of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We
agree with the district court that it is not appropriate to view the
claim as procedurally barred because Williams did not have an
opportunity to raise it in state court. The district court granted a
certificate of appealability (“COA”) and we have determined that this
claim warrants an evidentiary hearing.
The district court also granted a COA for the claim
that the trial court violated Williams' due process rights by failing to
provide funds for a mental health expert at sentencing to establish drug
dependence as a mitigating factor. Like the district court, we agree
that the state court's rejection of this claim was not contrary to or an
unreasonable application of Supreme Court precedent.
Of the numerous claims that had not been certified,
but that have been briefed pursuant to our rules, we find one to be
meritorious. Williams offered his addiction to crack cocaine as a
mitigating factor at sentencing. The Arizona Supreme Court refused to
consider this as a mitigating factor under applicable Arizona law
because Williams did not show he was under the influence of drugs at the
time of the murder. Because Williams' challenge to this determination
raises a substantial constitutional issue, 28 U.S.C. § 2253(c)(2), we
certify the issue and decide it. As we have done in other cases
emanating from Arizona courts in the same period, we find that the state
court erred by its refusal to consider all mitigating evidence. See
Eddings, 455 U.S. at 114-15; Lockett, 438 U.S. at 604-05; Lambright v.
Schriro, 490 F.3d 1103, 1114-15 (9th Cir.2007).
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are set out in
detail in the Arizona Supreme Court's opinion on direct appeal. State v.
Williams, 904 P.2d 437 (Ariz.1995). We summarize them here.
On Saturday, January 27, 1990, Williams and DeLao
made plans to spend the night together at Williams' apartment in Casa
Grande. When DeLao called, though, Williams told her not to come over
since his girlfriend Deloney was still at his apartment. DeLao came over
nonetheless and had an argument with Williams outside the building.
DeLao pulled a gun on Williams, but Williams was able to disarm her.
Williams briefly returned to his apartment, then left it, and did not
return until the following morning.
On Sunday morning, a hunter discovered DeLao's body
on a dirt road about twenty minutes from Williams' apartment. DeLao had
been shot three times and her body had suffered a number of gruesome
injuries. She had been beaten, and tire tracks across her stomach
indicated that she had been run over by an automobile. Bullets recovered
at the scene were consistent with the gun Williams had taken from DeLao
shortly before her death.
Deloney testified that Williams confessed to her on
Monday that he was with several friends who killed DeLao. According to
Deloney, Williams said he had only kicked DeLao, and that his friends
had killed her. Williams denied ever confessing involvement in DeLao's
death. Also on Monday, Williams drove Deloney to the place where DeLao's
car had been abandoned, less than a mile from his apartment in Casa
Grande. As Williams approached the car, a police officer processing the
car stopped them, and Williams told the officer he thought it was
DeLao's car.
Deloney testified that, two weeks after the murder,
Williams told her that he had killed DeLao, admitting that he shot her,
hit her with an iron, and ran over her repeatedly with his car. Williams
told Deloney that if she ever told anyone, he would kill her.
Five weeks after the murder, Norma Soto, a Circle-K
convenience store clerk, was shot several times during a robbery of the
store. Soto survived and identified Williams as her attacker, testifying
that he shot her after telling her to stop spreading the story that he
had killed DeLao. Police soon arrested Williams for both the murder of
DeLao and the robbery/attempted murder of Soto.
An Arizona jury, in a consolidated trial, convicted
Williams in 1992 of the murder of DeLao, armed robbery, and the
attempted murder of Soto. At trial, Deloney was the State's principal
witness on the murder charge. She testified about Williams' confessions.
The State also presented evidence that, prior to the murder, Williams
had burned DeLao's car, shot at her apartment, and slashed her tires.
Soto testified and identified Williams as the man who robbed the store
and shot her. Williams testified in his own defense and denied any
involvement in either criminal episode. Williams did not have a criminal
record, although the State introduced evidence that he had abused crack
cocaine and become physically abusive to Deloney. On the stand, Williams
denied using drugs on the day of the murder.
At sentencing, Williams sought to have the state
provide a mental health expert to explore whether his drug usage had
affected his mental state when he killed DeLao. The trial court denied
this motion, and the Arizona Supreme Court upheld the decision without
discussion. See 904 P.2d at 450 (“Defendant also asserts ․ that the
trial court's denial of funds for an expert violated his right to due
process and equal protection under the law. Under the facts of this
case, we reject these claims as well.”).
Williams also offered his addiction to crack as a
mitigating circumstance at sentencing. The trial court refused to
consider Williams' drug use in mitigation. The Arizona Supreme Court
agreed, holding that “[w]ithout a showing of some impairment at the time
of the offense, drug use cannot be a mitigating circumstance of any kind.”
Id. at 453.
After filing two unsuccessful state postconviction
petitions in which he raised the sentencing claims of erroneous denial
of a mental health expert and the refusal to consider his addiction as a
mitigating factor, Williams instituted federal habeas proceedings. In
1997, while his federal petition was pending, an Assistant Attorney
General for Arizona turned over to defense counsel a series of letters,
and stated they were discovered “by a secretary during an annual house
cleaning at the [Pinal] County Attorney's Office.” The State said the
letters had “no evidentiary value.”
The letters purported to have been written from jail
in 1991, prior to Williams' trial, by a woman named Beverly Sweat, to
Detective Tom Solis, the lead investigator in the DeLao murder. In the
letters, Sweat expressed the desire to provide information she had about
a murder, in return for an early release from jail. Solis has denied
ever having seen these letters, but has not testified or given a
statement under oath to this effect.
The letters contained information Sweat allegedly
obtained from a fellow inmate, Yolanda McKaney, that Williams had paid
Patrick Fields to kill Rita DeLao and that McKaney had seen a bloodied
Fields on one morning around the time of the murder. One letter stated
that Sweat was going to have Yolanda McKaney “tell [her] the story about
Rita and Patrick Fields.” The letter also noted that “Aaron” (apparently
a reference to petitioner Aryon Williams) was “going to get” two people:
Fields and Milton Barnett. According to this letter, McKaney told Sweat
that the day of the DeLao murder, in Casa Grande, she saw Fields who was
“all bloody” and who stated that “Aaron” had paid him a thousand dollars
to kill DeLao. According to Sweat, Fields told McKaney that he had cut
DeLao's eyes out and run over her with a moped. Sweat also stated that
she knew “Aaron is guilty of some part of it,” and in the subsequent
letters, promised that she could obtain additional information, if she
obtained an early release.
Counsel for Williams conducted an investigation on
the basis of the Sweat letters and in 1999 obtained declarations from
three people mentioned in the letters: McKaney, Barnett, and Fields.
McKaney's declaration stated that around the time of the DeLao murder,
she saw Fields in a park in the small town of Casa Grande, Arizona, less
than a mile from where police discovered DeLao's abandoned car the
morning after the murder. She saw a bloodied Fields throw a bloody shirt
into a dumpster and burn it. Barnett stated that about this same time,
and a few blocks from where McKaney saw Fields, he saw a shirtless
Fields throw something into a dumpster. Barnett said that, while sharing
a cigarette with Fields, he noticed blood on Fields' clothing. Barnett
asked Fields about this blood, and Fields fled. Barnett said he learned
of DeLao's murder the next day. Fields' declaration stated he was in
county jail at the time of the DeLao murder, but the State later
conceded that Fields was not in custody at that time. In the district
court Williams produced evidence that Fields had a history of sexual
assaults against women. Williams has admitted that he knows Sweat,
McKaney, Barnett, and Fields.
In 2002, the district court placed the federal
proceedings in abeyance to allow Williams to exhaust a Brady claim based
upon the Sweat letters and the subsequent investigation. The Arizona
courts never considered the merits of this claim, however, because the
Superior Court denied Williams an extension of time to file his state
petition, finding that Williams had failed to show good cause under
Arizona Rule of Criminal Procedure 32.4(c). The Arizona Supreme Court
then summarily denied review.
Back in federal court, Williams moved for “Discovery,
Expansion of the Record and [an] Evidentiary Hearing” on the Brady claim.
The State opposed on the ground that this claim was procedurally barred.
The district court refused to treat the Brady claim
as procedurally barred, holding in effect that the state courts had
prevented exhaustion without following any well established rule that
would have rendered the petition untimely. The district court noted that
the State had failed to cite any case denying a first request for an
extension of time in a capital case. To the contrary, Williams cited a
number of examples where the state courts had granted such requests.
Thus, the district court found that Rule 32.4(c) was not “firmly
established and regularly followed.” See Ford v. Georgia, 498 U.S. 411,
423-24 (1991).
The district court also granted Williams additional
discovery related to the investigation of the Sweat letters. The court
declined to order an in-court hearing, finding it appropriate to
consider documentation and review written evidence, rather than hear
witnesses. The court said that it did so because of what it determined
to be the “narrow focus” of the Brady claim.
After completion of discovery and briefing, the
district court denied the Brady claim on the merits, holding that
Williams was not prejudiced because the letters did not contain any
material information. The court noted that none of Williams' new
information directly impeached or undercut the evidence presented at
trial-evidence the jury found sufficient to convict. Rather, the
district court found the letters provided further evidence that Williams
was culpable by suggesting he had paid Fields to kill DeLao. The court
also pointed to inconsistencies in the various declarations, noting that
the fact the information originated in a jailhouse undermined its
credibility.
The district court issued a COA on the Brady claim
and the claim that Williams was entitled to a mental health expert at
sentencing. We additionally certify the claim that addiction should have
been considered a mitigating factor at sentencing.
ANALYSIS
I. The Brady Claim
First, we address as a threshold matter the State's
renewed contention that Williams' Brady claim is procedurally barred,
even though Williams was prevented from raising it because the state
trial court denied him a first extension of time. In this court, as in
the district court, the State has not cited to a single other instance
of an Arizona court denying a first extension of time to file a habeas
petition in a capital case. The State, therefore, has not shown the
denial was pursuant to a well established rule against first extensions
in capital cases. Procedural default must be based on the application of
a well established rule. See Ford, 498 U.S. at 423-24.
Because this claim was denied in state court on an
inadequate procedural ground, there was thus no failure on the part of
Williams. We agree with the district court that Rule 32.4(c) was
arbitrarily applied in this case. As the district court concluded “every
first request for an extension of time in a capital case” had been
granted previously in Arizona courts.
As a result of the state court's arbitrary
application of its rules, there is no state court decision to which this
court can defer. The deference AEDPA requires for state court
determinations, therefore, does not apply and our review of this claim
is de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002).
A state commits a Brady violation where 1) the
evidence in question is favorable to the accused, 2) the state “wilfully
or inadvertently” suppressed the information, and 3) the suppression
prejudiced the defendant. See Strickler v. Greene, 527 U.S. 263, 281-82
(1999). Prejudice exists where the state suppresses “material”
information; evidence is material if had it been disclosed “there is a
reasonable probability ․ the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation omitted).
The Brady materials here consist of the packet of
Sweat letters that turned up in the District Attorney's office years
after trial, and led counsel to obtain the declarations of McKaney,
Barnett, and Fields. See Paradis v. Arave, 240 F.3d 1169, 1178-79 (9th
Cir.2001) (noting that Brady material consists of admissible evidence or
inadmissible evidence that could have been used to impeach a government
witness). The Sweat letters thus suggested there were witnesses who,
around the time of DeLao's murder, saw a bloodied Patrick Fields
disposing of bloody clothing into dumpsters about a half a mile from
where police found DeLao's abandoned car. When defense counsel followed
up on these leads after the letters were disclosed, she obtained
declarations from the witnesses identified in the letters substantially
reiterating this information. The Sweat letters further suggested that
there might be a witness who could testify that Williams did not commit
the murder himself, but paid Fields to do it.
Williams contends that this information is sufficient
to justify habeas relief. The State contends, however, with some
validity, that the new evidence does not undermine Deloney's testimony
that Williams confessed his involvement in the murder to her. Nor does
it, according to the State, have any impact on the evidence that
Williams was the last known person to be with DeLao, and that they had
an argument when DeLao threatened Williams with the firearm that was
used in her murder. The Sweat letters are also consistent with Williams'
first confession to Deloney that he had only kicked DeLao, and that
someone else killed her. See 904 P.2d at 441. The State also points out
that prior to the murder, Williams had burned DeLao's car and shot at
her house; the Sweat letters do not conflict with that evidence either.
Insofar as the letters suggest Williams was involved
in the murder in a different capacity than as the actual killer, the
State contends the letters suggest only an alternate theory of equal
culpability, and we have held such evidence undermines a Brady claim
where the new evidence fails to show the defendant was “less guilty.”
See Morris v. Ylst, 447 F.3d 735, 740-41 (9th Cir.2006) (finding no
Brady violation where new information “did not say Petitioner was not
guilty, or that he was any less guilty” and did not suggest another
party “struck” the victim).
Here, we must part company with the State's position,
because new evidence suggesting an alternate perpetrator is “classic
Brady material.” Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir.2001); see
United States v. Jernigan, 492 F.3d 1050, 1056-57 (9th Cir.2007) (en
banc) (“Withholding knowledge of a second suspect conflicts with the
Supreme Court's directive that the criminal trial, as distinct from the
prosecutor's private deliberations, be preserved as the chosen forum for
ascertaining the truth about criminal accusations.”) (internal quotation
marks, citation, and brackets omitted). Not only are the Sweat letters
inconsistent with the State's theory at trial-that Williams was the only
individual responsible for DeLao's murder-but they also point to an
alternative suspect who may himself have been responsible for the brutal
crime.
The two witnesses mentioned in the letters, McKaney
and Barnett, provided declarations that pointed only to Fields. There is
also reason to believe the declarations from Barnett and McKaney are
more reliable than the Sweat letters. Sweat prepared the letters in
hopes of obtaining an early release from jail, and thus had every
motivation to tell the police what she thought they wanted to hear.
Barnett and McKaney, in contrast, had no apparent motivation to sign a
false declaration implicating Fields. Williams has also provided a
plausible explanation that the statement in the Sweat letters that he
was “going to get” Fields was unrelated to the murder. Williams believed
Fields was responsible for the violent assault of one of his longtime
friends.
Fields is at least a plausible alternative suspect:
he had a history of violence against women and lied about being in jail
at the time of the murder. McKaney and Barnett both saw Fields disposing
of bloody clothing around the time of the murder and a short walk away
from where police discovered DeLao's abandoned car. Williams, Fields,
Barnett, and McKaney all knew one another and lived in the same small
town. Juror affidavits suggest that at least one juror reluctantly voted
to convict on the basis on the evidentiary record. There was also little
physical evidence connecting Williams to the crime. This lends
materiality to new evidence that someone else was involved-and possibly
solely responsible. See Jernigan, 492 F.3d at 1054 (considering the
strength of the prosecutor's case in weighing the materiality of
suppressed evidence); Gantt v. Roe, 389 F.3d 908, 913 (9th Cir.2004)
(holding that newly discovered information is material when it
undermines a conviction based upon little physical evidence).
The Sweat letters thus provided the government with
information concerning a possible alternative suspect that, if disclosed
to the defense, would have allowed Williams to decide whether to put
McKaney and Barnett on the stand to testify. We have recognized the
principle that the government may not, consistent with Brady, suppress
information that another person committed the crime for which the
defendant is on trial. See Jernigan, 492 F.3d at 1056-57.
The Sweat letters also provided the names of two
potential witnesses that could have testified to events that undercut
the prosecution's theory that Williams was the lone assailant. Rather
than focusing on the information in the letters, and the potential
materiality of the witnesses' testimony that might implicate another
perpetrator, the district court prematurely deemed these two witnesses
presumptively not credible on the basis of inconsistencies in their
declarations. Yet, the two declarations were executed in 1999, nine
years after the murder. Given this fact, some inconsistencies do not
necessarily make their stories wholly incredible. More important,”[w]hen
analyzing a Brady claim, we do not reweigh evidence [or] assess the
credibility of witnesses [to] decide whether the suppressed evidence
establishes the guilt of a third party beyond a reasonable doubt or
exonerates petitioner.” Scott v. Mullin, 303 F.3d 1222, 1232 (10th
Cir.2002) (internal quotation marks, citation, and brackets omitted).
The critical question is whether the suppressed Brady material could
have provided material evidence that may have changed the result. The
district court concluded on the basis of written statements alone that
Barnett and McKaney were inherently unbelievable witnesses. The court
did so without holding an in-court evidentiary hearing in order to
determine whether they would have been able to provide material evidence
that may have changed the result of Williams' trial. This was error. We
follow our opinion in Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th
Cir.2005).
In Earp, also a death penalty case, we stressed that
credibility should be assessed on the basis of an in-court hearing where
the judge can see and hear the witnesses. See id. There, as here, the
district court had resolved a habeas claim on the basis of written
declarations and we held that to be error. See id. We stated that
“[b]ecause the veracity of the witnesses who signed the affidavits on
which Earp based his claim was at issue, the claim could not be
adjudicated without an evidentiary hearing on this disputed issue of
material fact.” Id. at 1170.
We are similarly unable to determine on this limited
record, whether there is a “reasonable probability” of a different
result at trial had this information been available. See Kyles, 514 U.S.
at 433. Although there are many questionable aspects in the statements
and their sources, this is a capital case in which courts'
responsibility to ensure that due process was afforded the defendant is
critical in order to prevent the execution of an individual in the face
of evidence that might show him innocent of the crime of conviction. See
Burger v. Kemp, 483 U.S. 776, 785 (1987) (“Our duty to search for
constitutional error with painstaking care is never more exacting than
it is in a capital case .”). The district court abused its discretion in
determining these issues on the basis of the documentary evidence alone.
This case is not one of the “rare instances” where “credibility may be
determined without an evidentiary hearing.” See Earp, 431 F.3d at
1169-70.
The dissent states that Williams is not entitled to
an in-court evidentiary hearing on his Brady claim because he “actively
opposed one” in the district court. (Dissenting Op. at 17762.) This is
not an accurate description of the record. Williams expressly moved for
an evidentiary hearing on his Brady claim, and the district court found
he had satisfied AEDPA's strict requirements for obtaining one. See 28
U.S.C. § 2254(e)(2). The State then argued that the district court
should summarily deny the claim without holding an evidentiary hearing
because Williams had not shown that he was unaware of the information
about Fields in the Sweat letters and the letters were not credible.
Alternatively, the State requested an evidentiary hearing so that it
could conduct discovery and develop evidence related to Williams' and
Williams' counsel's knowledge of Field's alleged participation in the
murder, and cross-examine Sweat, McKaney, and Barnett to investigate the
inconsistencies between the letters and the declarations. At that point,
Williams opposed the State's attempt to use an evidentiary hearing to
conduct investigatory discovery when the court had previously granted
the State a five-month extension to investigate these matters, and it
had failed to do so. We do not view this course of events as active
opposition to an in-court evidentiary hearing, and disagree with the
dissent's conclusion that Williams invited error by “express [ly]
disavow[ing]” an in-court hearing.
We also disagree with the dissent's conclusion that
the Sweat letters could not have been material to the guilt phase of
Williams' trial because the letters were not exculpatory. (Dissenting Op.
at 17758-59.) As the dissent recognizes, the standard for materiality is
whether “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Kyles, 514 U.S. at 433 (citation omitted). The dissent
contends that because Sweat claimed in her letters that Williams had
paid Fields to kill DeLao, and under Arizona law a person could be
convicted of first-degree murder if he hired someone else to commit a
homicide, the Sweat letters could not have provided evidence that would
have exculpated Williams from culpability for DeLao's murder. But if the
account of events provided by McKaney and Barnett in their declarations
is accurate, it is not altogether clear that Williams was involved in
DeLao's murder at all. For that reason, an in-court evidentiary hearing
was needed so that the district court could assess the credibility of
these witnesses and determine whether there was a reasonable probability
the result at the guilt phase of Williams' trial would have been
different had the State disclosed the Sweat letters in a timely fashion.
The dissent faults us for considering the McKaney and
Barnett declarations in our analysis of whether the Sweat letters are
material. (Dissenting Op. at 17764.) This contention, however, is
premised on the faulty assumption that the prosecution could not have
known that the information in the Sweat letters was material. Clearly, a
reasonable prosecutor would have known that the Sweat letters, which
identified two new witnesses and an alternative suspect, could lead to
evidence material to Williams' culpability for the murder of DeLao. The
declarations confirm that is so, by indicating that the witnesses were
available and possessed material information which may have exculpated
Williams. The Supreme Court has explained that a prosecutor who has any
doubt about the materiality of a piece of evidence favorable to the
defendant should disclose the evidence. Kyles, 514 U.S. at 439 (“[A]
prosecutor anxious about tacking too close to the wind will disclose a
favorable piece of evidence.”); United States v. Agurs, 427 U.S. 97, 108
(1976) (“[T]he prudent prosecutor will resolve doubtful questions in
favor of disclosure.”). It is therefore appropriate to consider the
declarations of McKaney and Barnett, and any testimony they may provide
at an evidentiary hearing on remand, to determine whether the State's
suppression of the Sweat letters violated Williams' due process rights
under Brady.
We hold the district court erred by not further
developing the factual record of the Brady claim. It would be improper
to dismiss the possibility that Williams was denied access to
information tending to implicate the guilt of another in the
perpetration of this heinous crime. We thus remand this Brady claim in
order for the district court to decide, on the basis of an appropriate
record, whether there were witnesses who could have provided material
evidence favorable to Williams at trial. After hearing any available
testimony from McKaney, Barnett, Fields, Solis, and Sweat, the district
court will be in a better position to assess whether this newly
discovered evidence undermines the jury's verdict, and whether the
government violated the Brady principle in failing to inform Williams
about it before trial.
II. Williams' Request for a Mental Health Expert
to Present Mitigating Evidence
Williams next contends the state court unreasonably
applied Ake v. Oklahoma, 470 U.S. 68 (1985), when it denied him
psychiatric assistance at sentencing to present mitigating evidence
related to his crack cocaine usage. Because Williams failed to make our
required threshold showing that his mental state was in issue, we reject
this claim.
The Supreme Court in Ake held that due process
requires the state to provide an indigent defendant funds for
psychiatric assistance when he makes a preliminary showing that his
mental state was a significant factor at the time of the offense. 470
U.S. at 83. The Arizona Supreme Court did not explain its reasoning in
rejecting Williams' Ake claim. We therefore independently review the
record, but only, as required by AEDPA, may grant relief if the state
court unreasonably applied controlling federal law as determined by the
Supreme Court. See Pirtle, 313 F.3d at 1167.
The district court denied the Ake claim in this case
on two bases. First, the district court noted that other circuits have
interpreted Ake to require a state to provide a defendant expert
psychiatric assistance at sentencing only where the state also planned
to rely on psychiatric testimony. See Mason v. Mitchell, 320 F.3d 604,
616 (6th Cir.2003). Yet, we have never read Ake so narrowly. See Hoffman
v. Arave, 455 F.3d 926, 934 (9th Cir.2006) (“[In Ake ], the Supreme
Court held that where an indigent defendant can demonstrate that his
mental capacity is likely to be a ‘significant issue’ at trial or
capital sentencing, he has an absolute right to be provided with
psychiatric and psychological expert assistance.”), vacated in part on
other grounds, 552 U.S. 117 (2008); Ronald Williams v. Stewart, 441 F.3d
1030, 1049 (9th Cir.2006) (per curiam); Smith v. McCormick, 914 F.2d
1153, 1157 (9th Cir.1990).
The district court also ruled that Williams had
himself failed to make a sufficient threshold showing that his mental
state was at issue at the time of the murder, because there was so
little in the record to indicate, that due to drug use, Williams' mental
state was impaired. The district court granted a COA. We affirm on the
latter ground.
Before triggering Ake's due process right to
psychiatric assistance, a defendant must “demonstrate[ ] to the trial
judge that his sanity at the time of the offense is to be a significant
factor.” Ake, 470 U.S. at 83. The defendant in Ake made this threshold
showing for the trial phase by relying on an insanity defense. Id. at
86. In addition, he had exhibited “bizarre” behavior at arraignment, and
established that he required heavy medication to control his illness. Id.
A competency examination revealed his illness had begun years earlier.
Id. At sentencing the prosecution sought to prove, as an aggravating
factor, that the defendant posed a future danger. Id. The defendant then
placed his mental state at issue at sentencing by relying upon the trial
testimony of a psychiatrist that because of mental illness he posed a
future danger. Id. He requested the court to appoint an expert to assist
at the capital sentencing phase and the Supreme Court ultimately agreed
he was entitled to one. Id. at 86-87.
Williams' initial showing, in contrast, was weak. His
defense at trial was not insanity or diminished capacity, but that he
did not do it. He contends he put his mental state at issue at
sentencing through Michelle Deloney's trial testimony that he used crack
the day before the murder, and through other testimony that a violent
change in character coincided with his starting to use drugs. Applying
the required level of deference, we find that it was not “objectively
unreasonable” for the state courts to determine this was an insufficient
threshold showing. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); 28 U.S.C.
§ 2254(d)(1), (2). Even with Deloney's testimony, there was little
evidence that Williams' drug use had in fact affected the crime. For
example, there was no evidence of bizarre behavior exhibited by Williams
at the time of the offense. See Ronald Williams, 441 F.3d at 1048-50
(holding that a defendant who did not rely on an insanity defense, had
been found competent, and failed to exhibit “bizarre” or “psychotic”
behavior failed to put his mental state at issue); see also James v.
Gibson, 211 F.3d 543, 554 & n. 5 (10th Cir.2000) (holding that the
defendant had not made a sufficient showing that his mental state was at
issue at the time of a murder even though there was evidence that at one
point he had suffered from a mental disorder). Petitioner thus made no
showing that drugs impaired his mental state “at the time of the offense.”
See Ake, 470 U.S. at 83.
The dissent incorrectly suggests that whether a
defendant has placed his mental state at issue is irrelevant at
sentencing. (Dissenting Op. at 17765-66.) The Court in Ake made clear
that a defendant must show that his mental state was a “significant
factor” at both the guilt and penalty phases. See id. at 83-84.
We thus affirm the district court's denial of
Williams' Ake claim. The trial court was not required to appoint a
mental health expert at sentencing because the defendant did not make
any showing that his mental state at the time of the murder was at issue
by virtue of drug use.
III. Drug Use as a Mitigating Circumstance
Williams also asked the sentencing court to treat his
drug use as a mitigating factor. The trial court refused and he contends
the Arizona Supreme Court improperly required a direct causal nexus
between his drug use and the murder before it would afford the drug use
any mitigating weight at sentencing. This claim has merit, because the
Supreme Court has repeatedly held no such nexus is required in capital
cases. See, e.g., Tennard v. Dretke, 542 U.S. 274, 284-87 (2004).
Although Williams had denied drug use during the
guilt phase of the trial, he presented drug use as a mitigating factor
at sentencing through the testimony of Deloney and a friend, Raymundo
Mendez. Deloney testified that Williams was a nonviolent person up until
the time he started to abuse crack. She stated that once he started to
abuse drugs he became progressively more violent. Mendez testified that
he had known Williams most of his life. He said Williams initially had a
reputation as a quiet and peaceful person. He also testified that about
the time Williams became known as a drug user, that he became violent
and started carrying guns with him. Williams did not testify at his
sentencing hearing.
The state trial court ruled that Williams failed to
establish his drug use as a mitigating factor because it found “there
was no evidence, including considering [Williams'] own testimony, to
indicate that cocaine usage by [Williams] was a factor in the
perpetration of the murder.” The Arizona Supreme Court affirmed this
ruling on direct appeal. The court stated that, under Arizona law,
“[w]ithout a showing of some impairment at the time of the offense, drug
use cannot be a mitigating circumstance of any kind.” 904 P.2d at 453.
The court thus refused to consider this mitigating circumstance because
Williams “offered no evidence showing that he was intoxicated when he
murdered [DeLao].” Id.
The district court considered and rejected this claim
on the merits, holding the state court was not required to consider
Williams' drug use as a mitigating circumstance. The district court
declined to issue a COA, but the issue, at the very least, is one upon
which reasonable jurists could disagree. See Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). We therefore certify this issue and consider its
merits.
We may reverse only if the Arizona Supreme Court's
decision was contrary to clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). The federal law is clear that a sentencing court must
consider all mitigating evidence. The decision of the Arizona Supreme
Court that drug use could not be considered as a mitigating factor “of
any kind,” is contrary to the Supreme Court's consistent decisions in
capital cases beginning more than a decade before Williams' trial. See
Smith v. Texas, 543 U.S. 37, 45 (2004); Tennard, 542 U.S. at 284-87;
Eddings, 455 U.S. at 114-15; Lockett, 438 U.S. at 604-60.
The Lockett plurality in 1978 struck down an Ohio
statute that allowed courts to consider only specified mitigating
factors. 438 U.S. at 597, 609-11. The Court held that “in all but the
rarest kind of capital case, [the sentencer should] not be precluded
from considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.” Id. at
604.
A court majority in Eddings extended Lockett and held
that an Oklahoma court violated the Constitution when it refused to
consider evidence of a defendant's abusive childhood. 455 U.S. at 113.
The Court stated that a trial court “may determine the weight to be
given relevant mitigating evidence [but that it] may not give it no
weight by excluding such evidence from [its] consideration.” 455 U.S. at
114-15.
In Tennard, the Court rejected a Fifth Circuit test
that barred the consideration of mitigating evidence unless “the
criminal act was attributable to this severe permanent condition.” 542
U.S. at 283. The Court held that “a State cannot bar the consideration
of ․ evidence if the sentencer could reasonably find that it warrants a
sentence less than death.” Id. at 285 (internal quotation marks and
citation omitted).
In Smith the Court explicitly rejected a Texas
court's refusal to consider mitigating evidence unless there was a
“nexus” between the mitigating circumstance and the murder. 543 U.S. at
45. The Court found that such a “nexus test” was a “a test [it had]
never countenanced and now ․ unequivocally rejected.” Id. Tennard and
Smith are retroactively applicable. See Schad v. Ryan, 602 F.3d 1022,
1045 (9th Cir.2010) (per curiam) (“Tennard and Smith are retroactively
applicable to the Arizona Supreme Court's ․ decision in this case.”);
see also Styers v. Schriro, 547 F.3d 1026, 1035-36 (9th Cir.2008) (applying
Smith retroactively).
At the time of Williams' trial, Arizona courts
recognized a nexus test similar to those rejected in Tennard and Smith.
See, e.g., State v. Djerf, 959 P.2d 1274, 1289 (Ariz.1998) (“The trial
court considered the evidence but found it irrelevant and declined to
give it weight because proof was lacking that [the defendant's] family
background had any effect on the crimes.”). This court has repeatedly
ordered habeas petitioners resentenced when the death penalty rested
upon Arizona courts' use of this unconstitutional test. See, e.g.,
Lambright, 490 F.3d at 1114-15; Styers, 547 F.3d at 1035-36.
The Arizona Supreme Court made the same error in this
case and we must reach the same result. By holding that “drug use cannot
be a mitigating circumstance of any kind” unless Williams demonstrated
“some impairment at the time of the offense,” the Arizona Supreme Court
imposed a “nexus” requirement contrary to Eddings, Lockett, Tennard, and
Smith. The Arizona courts had discretion as to the weight to be given
Williams' drug addiction, but erred by refusing to consider it at all
unless he proved it was a factor in the crime. We thus vacate the death
sentence, reverse, and remand for issuance of a writ of habeas corpus.
“Further sentencing by the state court shall be conducted in conformance
with applicable law.” Lambright, 490 F.3d at 1128.
IV. Williams' Remaining Claims
Williams' brief to this court raised a number of
issues the district court declined to certify. The district court found
these issues procedurally barred and did not consider them on the merits.
We have reviewed the district court's decision and reviewed the record
and decline to certify any additional issues.
CONCLUSION
We vacate the judgment of the district court denying
the petition and remand for an in-court evidentiary hearing on the
petitioner's Brady claim challenging the conviction. We also remand with
instructions to grant the petition on petitioner's claim of denial of
due process at sentencing for failure to consider all mitigating
circumstances. We otherwise affirm the denial of relief.
AFFIRMED in part, VACATED in part, and REMANDED.
*****
I respectfully dissent from the majority's
disposition of petitioner Aryon Williams's claim based on Brady v.
Maryland, 373 U.S. 83 (1963). While I concur in the result reached by
the majority on Williams's other two claims, I write separately to
express my disagreement with the majority's reasoning.
I
I agree with the majority that Williams's Brady claim
is not procedurally barred and that we may consider its merits. I
disagree, however, with the majority's decision to remand to the
district court for an in-court evidentiary hearing. Instead, I would
hold that the prosecution's suppression of the letters written by
Beverly Sweat rose to the level of a Brady violation with respect to the
penalty phase of Williams's capital case, but not with respect to the
guilt phase. Accordingly, I would uphold the district court's denial of
the habeas writ as to Williams's conviction, but grant the writ as to
his sentence.
A
Five years after Williams was convicted and sentenced
to death for the murder of Rita DeLao, the prosecution turned over to
the defense a series of jailhouse letters offering to provide
information about the DeLao murder in exchange for early release from
jail. The letters had been received by the government six years earlier,
before Williams's trial had begun, and were written by a woman named
Beverly Sweat. They were addressed to Detective Tom Solis, the lead
investigator in DeLao's murder.
In the letters, Sweat identified two individuals with
information about DeLao's murder, Yolanda McKaney, a fellow jailmate of
Sweat, and Milton Barnett. The letters also identified an additional
perpetrator in the commission of the murder, Patrick Fields, and an
alternate theory of the crime, namely that Williams had paid Fields to
commit the murder on his behalf. Relevant here, the letters stated:
Try questioning Milton Barnett Jr. [Yolanda McKaney]
mention his name too so may he knows something last WED, we went to the
yard and me and Yolanda [McKaney] was talking to [Williams] an he said
there was two people he was going to get one from Eloy->Patrick Fields
one from Casa Grande Milton Barnette [Williams] kept asking question
about Milton so check it out.
․
I went ahead an talk to Yolanda [McKaney] an she told
me the what happen the night Rita [DeLao] good killed, she said she was
walking down trekelle Road in Casa Grande an ran into Patrick [Fields]
he was all bloody an she ask him why was he all bloody an he told her he
had just killed Rita [DeLao] an [Williams] had paid him 1000 for doing
it he had a knife on him, an said he used it to cut her eyes out also
used a mopad to run over her an her an Patrick burned up the cloths he
had on an the went an spent the money which took about two or three days.
I think you should talk to her about this I know [Williams] is guilty of
some part of it but I wish you would get me out of here before you bring
it to surface․
Patrick Fields was a mentally unstable person who, at
the time of DeLao's murder, had an extensive criminal history with
charges including burglary, aggravated assault, and sexual assault.
Fields was also responsible for a series of attacks against women in the
months after DeLao's murder, in the same area where DeLao was killed.
Based on the government's withholding of these
letters, Williams attempted to raise a Brady claim in a state
postconviction petition. The state post-conviction court did not reach
the merits of this claim, however, because it held that the claim was
procedurally barred. Williams had asked for an extension of time to file
the petition under Arizona Rule of Criminal Procedure 32.4(c)(1), which
permits the state court to grant a defendant a sixty-day extension in
which to file a successive post-conviction petition “[o]n a showing of
good cause.” The state court determined that there was no good cause for
the extension and, as such, denied Williams's request.
Presenting the Brady issue to the district court,
Williams moved for an evidentiary hearing to explore the scope of the
prosecutor's potential wrongdoing. The district court granted the
request, but determined that, “[i]n light of the narrow focus” of the
Brady claim and “because[Williams's] motion d[id] not ․ indicate why
particular evidence requires oral presentation,” it would conduct the
hearing “through receipt of written evidence” rather than through live
testimony. The government contested this ruling, arguing that an in-court
hearing was necessary to permit cross-examination of Williams's
witnesses. Williams responded that an in-court hearing was not warranted
because the government had been given sufficient time to investigate the
claim through discovery. The district court ultimately declined the
government's request to conduct the hearing in person.
Reviewing the Brady issue on the merits, the district
court focused its analysis on the declarations of McKaney and Barnett,
which Williams's counsel had collected in the course of an investigation
into the Brady issue after the government's disclosure of the Sweat
letters, years after Williams's conviction and sentencing. McKaney's
declaration reported that she had witnessed Fields burning a bloody
shirt in an alley dumpster around the time of DeLao's death. Similarly,
Barnett's declaration reported that he had seen Fields, covered in blood,
dispose of something in an alley dumpster the day before he heard DeLao
had been killed.
Ultimately, the district court concluded that the
information regarding Patrick Fields was not material under Brady
because it neither impeached Michelle Deloney's testimony that Williams
had confessed to the crime nor “exculpate[d] [Williams]; rather it
affirm[ed Williams's] involvement in the murder.” The district court
noted that McKaney and Barnett would be subject to “adversarial testing”
in the event of a new trial because their declarations were inconsistent,
both with each other and with the Sweat letters. In addition, the
district court observed that the Sweat letters erroneously described the
manner in which DeLao was killed, and that the credibility of Sweat and
McKaney was subject to question because of the nature of their jailhouse
discussions. Based on its holding that Williams had failed to satisfy
Brady's materiality prong, the district court denied habeas relief.
B
As explained by the majority, the state court's
denial of Williams's request for an extension under Arizona Rule of
Criminal Procedure 32.4(c)(1), which had the effect of barring
consideration of Williams's claim on procedural grounds, was not a
“firmly established and regularly followed state practice” in the
capital context, Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (internal
quotation marks omitted), and therefore the state court's ruling was
inadequate to bar habeas relief. Because Williams's claim was not
“adjudicated on the merits,” 28 U.S.C. § 2254(d)(1), there is “no state
court decision on this issue to which to accord deference,” and I agree
with the majority that our review of this claim is de novo. See Pirtle
v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002) (“[W]hen it is clear that
a state court has not reached the merits of a properly raised issue, we
must review it de novo.”).
“[W]hen the State withholds from a criminal defendant
evidence that is material to his guilt or punishment, it violates his
right to due process of law in violation of the Fourteenth Amendment.”
Cone v. Bell, 129 S.Ct. 1769, 1782 (2009). As the majority states,
“[t]here are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Stated
otherwise, a Brady violation results when the prosecution suppresses
evidence that is “material,” that is, when “there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Id. at 280. Under
this standard, reversal of a conviction or sentence is required upon a
“showing that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in
the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). Here, there is
no dispute that the government suppressed the Sweat letters; therefore,
the court's inquiry is confined to whether the suppressed letters are
favorable to Williams and whether their suppression was prejudicial to
the result of his proceeding. Williams articulates a number of reasons
why the Sweat letters are material. The letters identify by name an
additional suspect in DeLao's murder and two individuals with
information about the crime. The perpetrator identified in the letters,
Fields, was mentally ill and had an extensive criminal history.
According to the letters, Fields confessed to McKaney that he committed
the murder, and this confession occurred on the night the murder
occurred, while Fields was still covered in blood.
Williams argues that, because he was convicted and
sentenced on the basis of circumstantial evidence, there is a reasonable
probability that the result of the proceeding would have been different
had the letters been disclosed. First, Williams contends that disclosure
of the letters would have enabled him to point to another person who
committed the crime, thereby supporting his claim of innocence. Williams
asserts that, had he known about Barnett and McKaney, he would have been
able to call them to the stand and they would have testified regarding
their knowledge of Fields's participation in the crime. Williams claims
he also could have introduced evidence that Fields was a likely suspect,
based on his mental instability and history of committing criminal acts
in the area.
Second, Williams theorizes that disclosure of the
letters and the police's failure to follow up with Sweat, McKaney, and
Barnett would have furthered his trial theory that the police were
negligent in their investigation of the crime. Like the defendant in
Kyles, Williams argues that the information in the letters would have
permitted “the defense[to] examine[ ] the police to good effect on their
knowledge of[Fields's] statements and so have attacked the reliability
of the investigation in failing even to consider [Fields's] possible
guilt.” 514 U.S. at 446.
Last, Williams contends that he could have used the
information in the letters to impeach Michelle Deloney's testimony that
Williams confessed to committing the crime, because the version of
events described by Deloney differed from that depicted in the letters.
Our recent en banc decision United States v. Jernigan
supports Williams's argument that the information regarding Patrick
Fields as an additional perpetrator was material to Williams's defense.
492 F.3d 1050 (9th Cir.2007) (en banc). Jernigan also dealt with a
situation where the prosecutor withheld information regarding another
possible perpetrator of the crime for which the defendant was on trial.
See id. at 1051. There, the defendant was charged with bank robbery
based primarily on her physical likeness to eyewitnesses' descriptions
of the robber. Id. The prosecutor withheld evidence of an alternative
suspect fitting the same physical description who had been arrested for
robbing nearby banks after the defendant was already in custody. Id. at
1054-55. In reviewing whether the suppression of the existence of the
alternative suspect constituted a Brady violation, we determined that
the information was material and therefore that the defendant's habeas
writ should be granted. Id. at 1057.
Our holding in Jernigan was based on the principle
that “[w]ithholding knowledge of a second suspect conflicts with the
Supreme Court's directive that ‘the criminal trial, as distinct from the
prosecutor's private deliberations, be preserved as the chosen forum for
ascertaining the truth about criminal accusations.’ “ Id. at 1056-57 (brackets
omitted) (quoting Kyles, 514 U.S. at 440). Jernigan indicates that
credible information about a second suspect to a crime is generally
material and therefore should be disclosed to the defendant.
Like the suppressed evidence in Jernigan, the Sweat
letters provide information that credibly indicates the existence of a
second suspect. The letters give a detailed description of specific,
named individuals, at least one of whom was known to the informant, all
of whom were part of the same community in a small town. At least one of
the individuals identified in the letters, Yolanda McKaney, allegedly
interacted with Patrick Fields near the time of the murder and reported
that he was covered in blood and confessed to the crime. Moreover, the
prosecutor would have known at the time of receiving these letters that
Fields was a plausible suspect, based on then-recent incidents in which
Fields had attacked other women in the area. Under Jernigan, these
circumstances weigh in favor of the letters' materiality.
For Williams to prevail on this claim, however, he
must also prove that the letters are “favorable” to him, Strickler, 527
U.S. at 281, either because they are exculpatory or because they have
impeachment value. See id. at 281-82. On this point, Williams's case and
Jernigan diverge. Unlike the suppressed evidence in Jernigan, the Sweat
letters do not exculpate Williams by proposing an alternative suspect to
the DeLao murder; rather, they identify Fields as an additional suspect
or accomplice to the crime. At most, the letters state that Williams
paid Fields to commit the act, and they expressly maintain that
“[Williams] is guilty of some part of it.”
That the letters identify an accomplice rather than
an alternative suspect is dispositive of Williams's claim that the
letters are material as to his conviction. Our case law advises that
suppressed evidence is not exculpatory (and a Brady claim will fail) if
the evidence merely suggests that another person is “equally guilty” as
the defendant, or if it fails to show that “the [defendant is] not
guilty, or that he [is] any less guilty.” Morris v. Ylst, 447 F.3d 735,
740 (9th Cir.2006). In Arizona, a person may be guilty of first degree
murder whether he hires someone to commit the act or commits it himself,
see Ariz.Rev.Stat. § 13-1105 (1989); e.g., State v. Carlson, 48 P.3d
1180 (Ariz.2002). Thus, while the information in the Sweat letters might
have changed the prosecutor's theory of the case at trial, it would not
have made Williams any “less guilty” of first degree murder. Accordingly,
the nondisclosure of the letters cannot constitute a Brady violation
with respect to the jury's finding of guilt on the murder charge.1
The majority points out that the Sweat letters could
be exculpatory as to Williams's guilt “if the account of events provided
by McKaney and Barnett in their declarations is accurate.” Maj. Op. at
17743. I disagree. As discussed below, information that comes to light
years after trial and sentencing cannot alter the materiality of
potential Brady information because the Brady analysis must be made from
the perspective of the prosecutor at the time of non-disclosure. The
Sweat letters, not the McKaney and Barnett declarations (which were
never in the prosecutor's files), are the potential Brady material. The
Sweat letters are not exculpatory as to Williams's culpability for the
crime, and McKaney and Barnett's post hoc declarations cannot
retroactively make them so.
This does not end the inquiry, however. The Supreme
Court has made clear that suppressed evidence which is not material to
the defendant's guilt may still be material to the defendant's sentence.
See Cone, 129 S.Ct. at 1786. Indeed, such was the case in Brady, in
which the prosecutor suppressed an accomplice's confession to the crime
for which the defendant was convicted and sentenced to death. Brady v.
State, 174 A.2d 167, 168 (Md.1961). The state court determined that
nothing in the accomplice's confession would have reduced the
defendant's offense to a lesser crime than murder in the first degree,
and hence the suppression was not material to the defendant's guilt. Id.
at 172. However, the suppression was material to the defendant's
sentence, and therefore the state court ordered a new trial on the
question of punishment only. Id.; see also Cone, 129 S.Ct. at 1786
(holding that suppressed evidence was not material to the defendant's
guilt but was material to his sentence). The Supreme Court affirmed.
Brady, 373 U.S. at 91.
In this case, as in Brady, the distinction between
the value of suppressed evidence as to guilt and as to punishment is
significant. While the Sweat letters are not exculpatory with respect to
Williams's culpability for the crime, they are exculpatory with respect
to his role in the physical act of murder, and thus raise a “reasonable
probability” that, had they been disclosed, Williams would not have been
sentenced to death. See Cone, 129 S.Ct. at 1783.
The state court sentenced Williams to death based on
the presence of two statutory aggravating factors: (1) Williams was
previously convicted of a felony involving the use or threat of violence
(the armed robbery and attempted murder of Norma Soto), see
Ariz.Rev.Stat. § 13-703(F)(2) (1989); and (2) Williams murdered DeLao in
an especially heinous and depraved manner, see Ariz.Rev.Stat. §
13-703(F)(6) (1989).2
State v. Williams, 904 P.2d 437, 452 (Ariz.1995). The state supreme
court upheld application of this latter factor because the murder
involved gratuitous violence “in excess of that necessary to kill,” and
because DeLao was helpless during the attack. Id.
In Arizona, the “heinous and depraved portion of the
(F)(6) aggravator focuses on the defendant's state of mind at the time
of the crime[ ] ․ as evidenced through [the defendant's] actions.” State
v. Carlson, 48 P.3d 1180, 1193 (Ariz.2002) (internal citation omitted);
see also State v. Gretzler, 659 P.2d 1, 10 (Ariz.1983) (holding that
“heinous and depraved go to the mental state and attitude of the
perpetrator as reflected in his words and actions”). The state court's
ruling that “[Williams] committed the murder in an especially heinous or
depraved manner,” Williams, 904 P.2d at 452, was based on the assumption
that Williams physically committed the crime (and hence the gratuitous
violence of the slaying and helplessness of the victim could be
attributed to his actions). The Sweat letters suggest, however, that
Fields, and not Williams, committed the actual killing. There is nothing
in the letters to indicate that Williams was even present when the
murder occurred.
If the Sweat letters had been disclosed, Williams
could have argued that he did not commit the crime in a heinous and
depraved manner, because he did not physically murder DeLao and was not
even a witness to the act. Thus, as pertains to sentencing, the letters
contain exculpatory information that could have reduced the likelihood
that Williams would be sentenced to death. The government's failure to
disclose the letters was also prejudicial: without the aggravating
factor of heinousness and depravity, the only basis for sentencing
Williams to death would have been his prior violent felony conviction,
and there is a reasonable probability that the trial court would not
have applied the death penalty on that basis alone. Thus, by suggesting
that Fields and not Williams committed the physical act of murder, the
letters “could reasonably be taken to put the whole [sentencing
proceeding] in such a different light as to undermine confidence in the
[penalty applied].” Kyles, 514 U.S. at 435. As such, it was a violation
of Brady for the prosecutor to withhold the letters from Williams for
sentencing purposes.
C
I respectfully dissent from the majority's decision
to remand this case for an in-court evidentiary hearing. The majority
errs in its decision to remand, both because Williams has waived any
right to such a hearing, and because Brady does not allow a court to
evaluate the materiality of suppressed evidence through the lens of
information and testimony gathered years after trial.
First, the majority fails to acknowledge that
Williams has waived his right to an in-court evidentiary hearing on this
claim. Williams's appellate brief makes only passing mention of the in-court
hearing issue without any analysis or legal authority. The rule in this
circuit is that “we review only issues which are argued specifically and
distinctly in a party's opening brief.” Greenwood v. F.A.A., 28 F.3d
971, 977 (9th Cir.1994). “We will not manufacture arguments for an
appellant.” Id. Williams's single observation that the district court
should have conducted an in-person evidentiary hearing, without
supporting reasoning, is insufficient to raise this issue on appeal. See
Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 4 (9th Cir.1996).
To the extent this issue is even before us, Williams
is barred from arguing for an in-person evidentiary hearing. Not only
did Williams fail to move the district court for an in-person hearing,
he actively opposed one. Indeed, the reason given by the district court
for holding a paper hearing rather than an in-court one was that
Williams's motion for a hearing did “not identify specific evidence to
be developed at an evidentiary hearing, or indicate why particular
evidence requires oral presentation.” Later, when the government
requested that the hearing be conducted in-person, Williams objected,
arguing that an in-person hearing was unwarranted because “[t]he State
of Arizona has had over fifteen years since they received the letters to
investigate these issues, and ․ five additional months provided by [the
district court] specifically for” the purpose of exploring
inconsistencies in the McKaney and Barnett declarations. Given
Williams's express disavowal of an in-court hearing, the district
court's decision not to hold the hearing in-person was at most invited
error, and certainly not a basis for remand here. See Marx v. Loral Corp.,
87 F.3d 1049, 1056 (9th Cir.1996) (stating that appellants “should be
barred from asserting [a] theory on appeal” that directly contradicts
their position in the district court); Deland v. Old Republic Life Ins.
Co., 758 F.2d 1331, 1336 (9th Cir.1985) (stating that a litigant “may
not on review complain of issues ․ where the objection is inconsistent
with the position taken below” (internal quotation marks omitted)).
The majority's reasoning on this point misses the
mark. While the majority explains Williams's motivation for opposing the
State's motion (because in Williams's view, the State should have
already completed its investigation of these matters), the majority does
not make clear how this additional information negates the fact that
Williams expressly opposed an in-court evidentiary hearing. See Maj. Op.
at 17742-43. Rather, the majority acknowledges that the State moved for
an in-court evidentiary hearing, and that Williams opposed it. Maj. Op.
at 17742-43.
Second, an in-person evidentiary hearing would serve
no purpose in this context. A reviewing court's evaluation of whether
the suppression of a particular piece of evidence violated the
prosecutor's duties under Brady is based on the character of the
information known to the prosecutor at the relevant time, that is,
before trial, during the course of trial, and during sentencing. See
United States v. Agurs, 427 U.S. 97, 107 (1976) (“[I]n advance of trial,
and perhaps during the course of a trial as well, the prosecutor must
decide what, if anything, he should voluntarily submit to defense
counsel.”); Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir.2004) (
“[T]he prosecutor's absolute duty to disclose under Brady is limited to
evidence a reasonable prosecutor would perceive at the time as being
material and favorable to the defense.” (emphasis added)). Information
that comes to light after trial and sentencing cannot alter the
materiality of potential Brady information from the only perspective
that matters: the perspective of the prosecutor at the time of non-disclosure.
See Agurs, 427 U.S. at 108 (stating that, though there is a “significant
practical difference between the pretrial decision of the prosecutor and
the post-trial decision of the judge” in determining what evidence must
be disclosed, “[l]ogically the same standard [for evaluating the
evidence] must apply at both times”). While it is true that Brady holds
the prosecutor responsible for determining whether some seemingly
insignificant piece of information may become material in the course of
trial, the prosecutor has never been held responsible for foreseeing
that such information could turn out to be material in the context of
evidence developed years after trial. See Kyles, 514 U.S. at 437 (stating
that, under Brady, “the prosecution, which alone can know what is
undisclosed, must be assigned the consequent responsibility to gauge the
likely net effect of all such evidence and make disclosure when the
point of ‘reasonable probability’ is reached”). In light of this
principle, neither the McKaney and Barnett declarations nor any further
testimony at an in-court hearing can shed additional light on the
question whether the prosecutor should have known that the Sweat letters
were material as to Williams's guilt.
Rather than accepting this point, the majority
attempts to smuggle post hoc evidence (such as the McKaney and Barnett
declarations and an evidentiary hearing) into the Brady determination
for an obvious reason: the Sweat letters themselves are not exculpatory
as to Williams's guilt. Nor could a reasonable prosecutor have known
that the Sweat letters might lead to exculpatory evidence, because
contrary to the majority's suggestion, see Maj. Op. at 17743-44, the
declarations contradict the Sweat letters as to the crucial issue of
Williams's culpability for the crime. Prosecutors have no obligation
under Brady to weigh whether the evidence in their files might somehow
lead to future contradictory evidence in determining whether to disclose.
To hold otherwise would be tantamount to requiring prosecutors to
disclose everything in their case files, which Brady does not do. See
United States v. Bagley, 473 U.S. 667, 675 (1985) (stating that a
prosecutor is not required under Brady to “deliver his entire file to
defense counsel”). Because the Sweat letters themselves are not material
to the guilt phase, and because post-hoc evidence will not make them so,
there is no reason to require the district court to hold an evidentiary
hearing.
For the same reason, the majority's reliance on Earp
v. Ornoski, 431 F.3d 1158 (9th Cir.2005), for the proposition that
credibility must typically be assessed through live testimony, Maj. Op.
at 17741-42, is misplaced. It may be that, where credibility is properly
at issue, “an in court hearing where the judge can see and hear the
witnesses” is appropriate. Maj. Op. at 17741-42 (citing Earp, 431 F.3d
at 1169-70). But because no credibility question arises in Williams's
claim, there is no basis to hold such a hearing here.
Accordingly, the majority errs both in providing a
form of relief to which Williams is not entitled, and in requiring the
district court to consider the materiality of the Sweat letters in the
context of after-acquired evidence that was not known and could not have
been known to the government at the time of trial. The majority's new
formulation of the prosecutor's Brady obligation represents a dangerous
expansion, one which is contrary to the Supreme Court's balanced
approach.
II
Although I concur in the result reached by the
majority on Williams's other two claims, namely his claim under AEDPA
that the state court unreasonably applied Ake v. Oklahoma, 470 U.S. 68
(1985), and his claim under AEDPA that the state court should not have
required a causal nexus between his drug use and crime of conviction at
sentencing, I disagree with the majority's analysis, for the reasons
described below.
A
Williams argues that the state court unreasonably
applied Ake, 470 U.S. 68, when it denied him psychiatric assistance at
sentencing to present mitigating evidence related to his crack cocaine
usage. The state supreme court reached this claim, but did not explain
its reasoning in rejecting it. I agree with the majority that when the
state court denies relief on the merits but provides no rationale for
its decision, we “perform an ‘independent review of the record’ to
ascertain whether the state court decision was objectively unreasonable.”
Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003) (quoting Delgado v.
Lewis, 223 F.3d 976, 982 (9th Cir.2000)). In this situation, AEDPA
deference still applies; “[t]hat is, although we independently review
the record, we still defer to the state court's ultimate decision.”
Pirtle, 313 F.3d at 1167. “Independent review of the record is not de
novo review of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision is
objectively unreasonable.” Himes, 336 F.3d at 853.
In setting forth the standard for when a criminal
defendant is entitled to a psychiatric expert provided by the state, Ake
distinguishes between the trial and sentencing phases of the defendant's
criminal proceedings. See 470 U.S. at 83. At trial, “when a defendant
demonstrates to the trial judge that his sanity at the time of the
offense is to be a significant factor at trial,” Ake holds that “the
State must, at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense.” Id.
Psychiatric assistance in this context is limited by its terms to the
defendant's trial and trial preparation, and does not extend to the
defendant's sentencing proceedings. See id.
With respect to the defendant's due process
entitlement to a psychiatric expert at sentencing, Ake provides a
separate test. Under Ake, entitlement to a psychiatric expert at
sentencing is limited to defendants charged with capital crimes. See id.
(“We have repeatedly recognized the defendant's compelling interest in
fair adjudication at the sentencing phase of a capital case.”). “[I]n
the context of a capital sentencing proceeding,” Ake holds that a
defendant is entitled to a mental health expert only “when the State
presents psychiatric evidence of the defendant's future dangerousness.”
Id. at 84. The defendant may use the psychiatric expert in this
situation to “rebut the State's evidence of his future dangerousness.”
Id.
The majority fails to even acknowledge that Ake
provided distinct tests for the trial phase and penalty phase of a
defendant's case. Instead, the majority applies Ake's test for the trial
phase to Williams's claim that he was deprived of a psychiatric expert
at sentencing. Maj. Op. at 17746 (interpreting Ake as requiring the
government to provide a psychiatric expert to a defendant, both at trial
and capital sentencing, when the defendant can make the threshold
showing that “his sanity at the time of the offense is to be a
significant factor” (internal quotation mark omitted)); cf. Tuggle v.
Netherland, 516 U.S. 10, 12 (1995) (“[W]e held in Ake [ ], that when a
prosecutor presents psychiatric evidence of an indigent defendant's
future dangerousness in a capital sentencing proceeding, due process
requires that the State provide the defendant with the assistance of an
independent psychiatrist”); Simmons v. South Carolina, 512 U .S. 154,
165 (1994) (interpreting Ake as holding that a defendant is entitled to
a psychiatric expert at capital sentencing proceedings “where the State
presents psychiatric evidence of a defendant's future dangerousness”).
The majority's interpretation of Ake, in my view, is erroneous.
Because Williams argues that he was denied a
psychiatric expert only at sentencing, the state court's rejection of
Williams's Ake claim could be contrary to or an unreasonable application
of Ake only if the government presented psychiatric evidence of
Williams's future dangerousness in his capital sentencing proceedings.
470 U.S. at 86 (holding that the defendant was entitled to a psychiatric
expert at sentencing because his “future dangerousness was a significant
factor at the sentencing phase”). Here, the government did not. Applying
the required level of AEDPA deference, it was therefore not objectively
unreasonable for the state court to deny this claim. See § 2254(d)(1);
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
B
The state court refused to treat Williams's drug use
as a mitigating factor in deciding his sentence. Williams contends that
the state court's refusal was based on a requirement that his drug use
have a direct causal nexus to his crime of conviction, and that this
causal requirement was contrary to or an unreasonable application of
Supreme Court precedent. See, e.g., Eddings v. Oklahoma, 455 U.S. 104,
114-15 (1982). Because the state supreme court adjudicated this claim on
its merits in a reasoned decision, the deferential AEDPA standard
applies. See Himes, 336 F.3d at 852-53. Therefore, under § 2254(d)(1),
we can reverse the state court's decision only if it “was contrary to,
or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.”
As described in the majority opinion, at the time of
Williams's trial, Arizona courts refused to consider mitigating evidence
unless that evidence had a nexus to the crime for which the defendant
was being sentenced. See, e.g., State v. Djerf, 959 P.2d 1274, 1289 (Ariz.1998).
Following this rule, the state sentencing court declined to consider
Williams's drug use as a mitigating factor because it determined that,
“[w]ithout a showing of some impairment at the time of the offense, drug
use cannot be a mitigating circumstance of any kind.” Williams, 904 P.2d
at 453.
I agree with the majority that this decision by the
state court was contrary to the clearly established Supreme Court
holdings in Lockett v. Ohio, 438 U.S. 586 (1978) (plurality), and
Eddings, 455 U.S. 104, both of which prohibit courts from categorically
excluding mitigating evidence from its consideration in capital
sentencing proceedings. See Eddings, 455 U.S. at 114-15 (“[The
sentencing court] may determine the weight to be given relevant
mitigating evidence. But [the court] may not give it no weight by
excluding such evidence from [its] consideration.”); Lockett, 438 U.S.
at 604 (“[I]n all but the rarest kind of capital case, [the sentencing
court should] not be precluded from considering, as a mitigating factor,
any aspect of the defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.” (emphasis and footnote omitted)).
I write separately, however, because I disagree with
the majority's reliance on Tennard v. Dretke, 542 U.S. 274, 284-87
(2004), and Smith v. Texas, 543 U.S. 37, 45 (2004), as “clearly
established Federal law” relevant to analyzing the state court's
decision under AEDPA. The Supreme Court has made clear that “ ‘clearly
established Federal law’ under [AEDPA] is the governing legal principle
or principles set forth by the Supreme Court at the time the state court
renders its decision.” Lockyer, 538 U.S. at 71-72 (emphasis added); see
also Murdoch v. Castro, 609 F.3d 983, 990 (9th Cir.2010) (en banc) (“The
Supreme Court has restricted ‘clearly established Federal law’ under §
2254(d)(1) to ‘the holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant state-court decision.’
“ (internal quotation marks omitted) (emphasis added) (quoting Carey v.
Musladin, 549 U.S. 70, 74 (2006)). As such, a federal court reviewing a
state court's decision under AEDPA must consider only those Supreme
Court precedents that were available to the state court at the time it
conducted its review. See Williams v. Taylor, 529 U.S. 362, 390, 412
(2000). We cannot fault the state court for failing to apply a precedent
that did not come into existence until after its consideration of a
petitioner's case. See id.
Here, the state supreme court rendered its decision
on September 26, 1995. Williams, 904 P.2d 437. Therefore, at the time of
its decision, the state supreme court had the benefit of the Supreme
Court's holdings in Lockett, 438 U.S. 586, and Eddings, 455 U.S. 104,
which were issued in 1978 and 1982, respectively. Those cases constitute
“clearly established Federal law” under AEDPA. See § 2254(d)(1); Lockyer,
538 U.S. at 71-72. By contrast, the state supreme court did not have the
benefit of Smith, 543 U .S. 37, and Tennard, 542 U.S. 274, both of which
were decided in 2004, almost a decade after the state court reviewed
Williams's claim. Smith and Tennard are therefore not “clearly
established Federal law,” and the state court's decision cannot be
judged against the principles announced in those cases. See Murdoch, 609
F.3d at 990.
The majority's reasoning that “Tennard and Smith are
retroactively applicable” to Williams's claim, Maj. Op. at 17749, is
beside the point. The issue is whether those cases are “clearly
established” Supreme Court precedents under AEDPA, § 2254(d)(1); whether
they announced retroactively applicable principles poses an entirely
different question, which is not raised here, cf. Schad v. Ryan, 606
F.3d 1022, 1045 (9th Cir.2010). See Williams, 529 U.S. at 412 (explaining
that whether a Supreme Court precedent is retroactively applicable to a
defendant's claim poses a different question than whether the precedent
is “clearly established” for AEDPA purposes). Smith and Tennard are
relevant, at most, because they reiterate the rule announced in Eddings
and Lockett. See Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir.2008) (per
curiam) (citing Smith for the principle articulated in Eddings ). But
beyond this limited applicability, Smith and Tennard are not and cannot
themselves be considered “clearly established Federal law” for purposes
of this court's analysis of Williams's claim.
III
The majority erroneously remands to the district
court for an in-court evidentiary hearing on matters not relevant to
deciding Williams's Brady claim. Not only is an in-court evidentiary
hearing not warranted here, but it is a form of relief that Williams did
not properly request before this court, and expressly disavowed before
the district court. In my view, the government's failure to disclose to
the defense credible information concerning an alternative perpetrator
to the murder constituted a Brady violation with respect to Williams's
sentence, and Williams's writ should be granted as to his punishment. I
therefore respectfully dissent from the majority's treatment of
Williams's Brady claim. Except for the issues identified above, I join
my colleagues' decision as to the remainder of Williams's claims.
FOOTNOTES
1. Nor could
the letters be used to impeach Deloney's credibility. See Strickler, 527
U.S. at 281-82 (suppressed information is favorable to the accused when
it is exculpatory or has impeachment value). Deloney testified that
Williams confessed to her that he committed the crime. The letters do
not bear any relation to Deloney's statements that Williams confessed,
nor do they call into question Deloney's veracity as a witness.
2. The state
court found no statutory mitigating factors, but found as non-statutory
mitigation that Williams had no criminal record prior to the murder and
that defendant had in the past displayed good conduct and character.
Concluding that the mitigating evidence was insufficient to invoke
leniency, the state court sentenced Williams to death. Williams, 904
P.3d at 444.
