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concluding evidence could have been discovered by due diligence where it was "undisputed that . . . counsel knew of at least some of the allegations of [purportedly newly discovered evidence]"
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No. 11–71987.
2011-07-18
Thomas Paul WEST, Petitioner,v.Charles L. RYAN, Respondent.
Jon M. Sands, Arizona Federal Public Defender, Timothy M. Gabrielson, Paula K. Harms, Assistant Arizona Federal Public Defenders, Tucson, AZ, for petitioner-appellant West.Thomas C. Horne, Attorney General, Jonathan Bass, Assistant Attorney General, Tucson, AZ, for respondent-appellant Ryan.
Jon M. Sands, Arizona Federal Public Defender, Timothy M. Gabrielson, Paula K. Harms, Assistant Arizona Federal Public Defenders, Tucson, AZ, for petitioner-appellant West.Thomas C. Horne, Attorney General, Jonathan Bass, Assistant Attorney General, Tucson, AZ, for respondent-appellant Ryan.
ORDER
Thomas Paul West applies to this court for authorization to file a second or successive petition for a writ of habeas corpus in the District of Arizona. See 28 U.S.C. § 2244(b)(3). We deny his application.
BACKGROUND
West was convicted of first-degree felony murder, second degree burglary, and theft in March 1988. In our opinion denying his first federal habeas petition, we set out the facts surrounding the murder and trial:
West moved to Arizona from Illinois in June 1987. While living in Tucson with a family friend, he met Donald Bortle (“Bortle”). Bortle had various items for sale in his home, including assorted electronic equipment and videotapes of popular movies. West's friend wanted to buy some things from Bortle, and West accompanied her to his house. About two weeks later in mid-July 1987, West broke into Bortle's home, beat him severely about the head, and bound his limbs. He left Bortle to die, stealing his car and various other items, including several pieces of electronic equipment.
West transported the stolen goods to the desert where he hid them, and then drove to Glendale where some of his friends lived. After retrieving the goods from Tucson with an acquaintance, West returned to Glendale and spent a couple of days with his friends. FN1 He made several allusions to beating up and robbing “some guy,” but expressed no remorse about it. West then absconded to Illinois with much of the stolen property. Soon thereafter, one of West's acquaintances contacted the Pima County Sheriff's Office, and an investigation led officers to Bortle's home where they discovered his dead and decaying body. His hands and feet were bound with a vacuum cleaner cord and lamp wire, and he had extensive fractures on the right side of his face. The fractures were so severe that his hard pallet had detached from his skull. The coroner estimated that he had bled to death within forty-five minutes to an hour after the beating.
West was arrested in Illinois when the car in which he was riding was stopped for speeding, and the officer discovered he was wanted for murder in Arizona. A search of the car revealed several pieces of electronic equipment and other items stolen from Bortle's home.West v. Ryan, 608 F.3d 477, 480 (9th Cir.2010). We also set out the facts surrounding West's sentencing. Because West challenges his sentence, rather than his conviction, those facts are important here as well:
The prosecution sought the death penalty, citing the following aggravating factors: (1) the murder was committed for pecuniary gain; (2) the murder was committed in an especially cruel and heinous manner; and (3) West had a prior conviction for a crime of violence (a 1981 manslaughter conviction). FN2
At the initial sentencing hearing on May 4, 1988, West's counsel argued that a conviction for felony murder precluded imposition of the death penalty. Dawley[, West's counsel,] indicated that, as “a matter of strategy,” he and [co-counsel] Fiorillo chose to rely solely on this “legal argument” and not to present mitigation witnesses. Dawley said that they had looked for mitigating factors, explaining that West had been “examined” from “a mental health stand-point,” but that he and Fiorillo had determined that the evidence “was not worth bringing” to the court.
The judge disagreed with the defense's legal theory that the death penalty could not be imposed for a felony murder conviction and asked West if there was anything he wished to say prior to sentencing. West indicated that there were a lot of people who would testify that he was not a “wicked mad man,” but that he did not feel like “dragging them in”
because he felt the court had already made up its mind. The court responded that it would consider any such evidence and would delay sentencing so that West could present it. West agreed, and the court rescheduled the hearing for June 6.
On May 11, Dawley sought and obtained another continuance, delaying the sentencing hearing until August 1. During the interim, defense counsel sent two investigators to Illinois and Oklahoma to interview thirteen witnesses about West's childhood, drug addiction, and the circumstances surrounding the earlier 1981 homicide. Counsel also retained a substance abuse expert, Terry Hickey (“Hickey”), who interviewed West, West's mother, his brother, and LuAnn St. Aubin (West's girlfriend at the time of the 1981 homicide). Hickey reviewed the transcripts of the interviews with West's family and friends, as well as West's Illinois prison records, his medical records, and Dr. Allender's neuropsychological evaluation.
Meanwhile, the probation office submitted an amended presentence report (“PSR”), which described positive letters from West's father, grandmother, maternal aunt, and a family friend. The letter from West's father stated that West was well-liked and that drugs and alcohol were “the bottom line to all of [his] problems.” Other letters opined that West needed drug treatment and that he was a good person when he was not using drugs. The PSR took note of the numerous interviews conducted by the defense investigators and advised the court to consider that West's actions may have been the result of chronic and acute drug abuse, which may have reduced his ability to appreciate the wrongfulness of his actions. It also opined that West's actions may have resulted from an unstable and abusive home environment.
In its pre-hearing sentencing brief, the defense argued that West (1) had an emotionally deprived childhood, (2) suffered from substance abuse, which diminished his capacity to conform his conduct to social and legal norms, (3) could be rehabilitated, (4) did not intend to kill Bortle, (5) could not legally be put to death for felony murder, and (6) had acted in self-defense and defense of another in connection with his 1981 homicide conviction.
At the August 1 sentencing hearing, Hickey and five lay witnesses testified on West's behalf. The defense also submitted newspaper articles about the 1981 homicide, hospital records from West's drug-related hospitalizations in 1983 and 1986, a rap sheet from the Department of Justice, and transcripts of interviews with thirteen witnesses who discussed the extent of West's substance abuse, his emotionally deprived childhood, and/or the circumstances surrounding the 1981 homicide. FN3
Hickey testified that West came from a chemically dependent family, that West's chemical dependency began at age ten, and that it significantly impaired his judgment. He testified that addicts cannot reason normally and that they make increasingly bad decisions as their addiction progresses. He testified that extreme
addictions cause “cognitive impairment[s]” similar to brain damage.
With regard to West's family, Hickey testified that West's father was an alcoholic and that West witnessed physical violence in the family from an early age. Hickey noted that West's father withdrew affection and refused to call the children by their names, calling them “pothead number one” and “pothead number two.” On cross-examination, Hickey admitted that West's prognosis was poor, noting that West had dropped out of treatment programs in 1983 and 1986, but explaining that it is not uncommon for addicts to fail such programs on their first attempts.
At the close of evidence, West made a lengthy statement in which he denied any responsibility for the crime. The sentencing court found three aggravating circumstances: (1) that West previously committed a felony involving the use of violence upon another, (2) that West committed the present offense in expectation of pecuniary gain, and (3) that West committed the present
offense in an especially cruel and heinous manner, in that, A, the [victim] was hog-tied, bound and beaten repeatedly; B, death was not immediate, the deceased was left dying and in a position unable to seek assistance; and C, that the defendant knew or had reason to know that the deceased was dying or had suffered serious physical injuries.
The court found West's emotionally deprived childhood and substance abuse problem to be mitigating, but not sufficiently so as to outweigh the aggravating factors. It sentenced West to death. Id. at 481–82.
West's conviction was affirmed on direct review by the Arizona Supreme Court on September 30, 1993. State v. West, 176 Ariz. 432, 862 P.2d 192 (1993). The Supreme Court denied certiorari on April 25, 1994. West v. Arizona, 511 U.S. 1063, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994). On March 26, 1996, West filed his first petition for post-conviction relief in state court, raising numerous claims including ineffective assistance of counsel for not presenting sufficient mitigation evidence at sentencing. The superior court denied the petition without a hearing, and the Arizona Supreme Court summarily denied the petition.
On May 6, 1998, West filed a timely petition for a writ of habeas corpus in the District of Arizona. On November 9, 2007, the district court denied West's third amended habeas petition. West v. Schriro, No 98–218, 2007 WL 4240859. The court denied West's motion to reconsider on December 11, 2007. We denied his appeal in a published decision on June 10, 2010. West v. Ryan, 608 F.3d 477. The Supreme Court denied certiorari on February 22, 2011. West v. Ryan, ––– U.S. ––––, 131 S.Ct. 1473, 179 L.Ed.2d 314 (2011).
Following the habeas appeals, Arizona moved for a warrant of execution, which was issued by the Arizona Supreme Court on May 24, 2011. The warrant set the execution for July 19, 2011. In opposing the warrant of execution, West filed a successive petition for post-conviction relief in the Arizona Superior Court, which that court denied on June 29, 2011. The Arizona Supreme Court summarily denied review on July 13, 2011, and West filed a petition for a writ of certiorari on July 15, 2011. That petition is currently pending. West filed the instant application pursuant to 28 U.S.C. § 2244(b)(3), seeking permission from the Ninth Circuit to file a second or successive petition for a writ of habeas corpus in the District of Arizona, on July 15, 2011.
DISCUSSION
I. West Raised The Claim of Ineffective Assistance in a Prior Petition
The first step in our consideration of West's application requires us to “determine whether a ‘claim presented in a second or successive habeas corpus application’ was also ‘presented in a prior application.’ ” Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). If it has, “the claim must be dismissed.” Id. The Supreme Court has clarified that the term “claim” means “an asserted federal basis for relief from a state court's judgment of conviction.” Id. West alleges that his claims have not been presented in a previous petition, but, at least as to his first claim, we are not convinced.
In his proposed second or successive petition, West makes two claims: (1) that sentencing counsel rendered ineffective assistance because they failed to adequately investigate his background and introduce evidence that would have invalidated all three statutory aggravating factors found by the sentencing court; and (2) that his recent diagnoses of post-traumatic stress disorder (“PTSD”) rendered him ineligible for the death penalty because it invalidates all three aggravating factors. While the PTSD is a new wrinkle, we have seen at least the first of these claims before. Specifically, in claim A8 of his previous habeas petition, West contended that his counsel were ineffective at sentencing by failing to investigate and present mitigation evidence of West's impaired mental health, head injuries, childhood abuse, immaturity, substance abuse, and failure to complete drug rehabilitation. While the current proposed petition focuses on the effect the evidence of his childhood abuse would have on the aggravating factors rather than the mitigating effect, this is two sides of the same coin. West's complaint is that counsel should have discovered the truth about his childhood and the effect it had on his decision to murder Mr. Bortle.
The current claim adds nothing new except the contention that the investigation would have revealed his PTSD. However, even that is not truly new, because West argued the same thing to this court in his appeal of the prior habeas denial. In fact, West argued his PTSD warranted relief in seven different places in his opening brief of the first habeas appeal and three places in his reply brief. Because West's first claim regarding ineffective assistance of sentencing counsel was raised in a prior habeas petition, it must be dismissed. 28 U.S.C. § 2244(b)(1).
II. Requirements For Filing Second or Successive Petition
Even if West's claims are distinct enough from those raised in his first petition so that we may consider them, we must dismiss his application unless he meets Antiterrorism and Effective Death Penalty Act's (AEDPA) stringent standards. 28 U.S.C. § 2244(b)(2)(B). “Permitting a state prisoner to file a second or successive federal habeas corpus petition is not the general rule, it is the exception, and an exception that may be invoked only when the demanding standard set by Congress is met.” Bible v. Schriro, 651 F.3d 1060, 1063 (9th Cir.2011). Because West is not claiming that a new rule of constitutional law supports his claim, this demanding standard requires that we dismiss his application unless
(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(B). While West must satisfy both requirements to prevail in his application, he cannot satisfy either.
A. The Evidence Could Have Been Discovered Previously
West must first demonstrate that the evidence he now presents is newly-discovered, i.e., it “could not have been discovered previously through the exercise of due diligence.” Id. West offers two pieces of evidence he deems newly-discovered. First, West asserts that he suffered physical and emotional abuse from his family and he was sexually molested by three different men during his childhood. This information was not brought out at trial or in mitigation during sentencing. Second, West was diagnosed after the trial and sentencing as suffering from PTSD. His medical experts opine that West was suffering from PTSD at the time he murdered Bortle.
1. Family and Sexual Abuse
West cannot demonstrate that the evidence of physical and emotional abuse by his family or sexual molestation is newly-discovered because it could have been discovered before trial through the exercise of due diligence. In fact, West knew it all along, and it is undisputed that his counsel knew of at least some of the allegations of sexual abuse in 1996. Under the facts of this case, this was not newly-discovered information which could not have been discovered through the exercise of due diligence. See King v. Trujillo, 638 F.3d 726, 730 (9th Cir.2011).
2. PTSD
B. The Actual Innocence Requirement
Even if the evidence were accepted as newly-discovered, we must still deny West's application unless it “would be sufficient to establish by clear and convincing evidence that ... no reasonable factfinder would have found [him] guilty of the underlying offense.” Bible, 651 F.3d at 1063 (quoting 28 U.S.C. § 2244(b)(2)(B)(ii)). Here, West challenges only his death sentence, and not his conviction. When a “capital defendant challenges his death sentence in particular, he must show by ‘clear and convincing evidence’ that no reasonable juror would have found him eligible for the death penalty in light of the new evidence.” Calderon v. Thompson, 523 U.S. 538, 559–60, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 348, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). Thus, West has the burden of showing, by clear and convincing evidence, that no reasonable sentencing judge aware of his family and sexual abuse and resulting PTSD would have sentenced him to death.
The state trial court found three aggravating circumstances in the penalty phase: (1) prior conviction of a violent crime in Illinois; (2) murder committed for pecuniary gain; and (3) murder committed in an especially cruel and heinous manner. West contends each of these findings is completely negated by the PTSD diagnosis and, had the sentencing court known of his PTSD, it would not have been able to sentence him to death.
1. Prior Conviction of Violent Crime—1981 Manslaughter
West contends that had the Illinois judge in 1981 known West suffered from PTSD, he would not have convicted him, and therefore the prior Illinois conviction should not have been considered by the Arizona court. The Supreme Court has held “that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid.” Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). The Court noted a possible exception to this rule in a case where, “after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner.” Id. at 405, 121 S.Ct. 1567 (emphasis added).
West has not presented “compelling evidence” of actual innocence. In support of this argument, he submitted a letter from the Illinois judge (unsworn, but declared to be “true to the best of [the judge's] information and belief”) in which, 30 years after the fact, the judge states “I may well have acquitted Mr. West at that bench trial had I known that he suffered from PTSD at the time of the shooting.”
This evidence is insufficient to meet the “compelling evidence” standard for at least two reasons. First, there is no evidence
2. Murder Committed for Pecuniary Gain
The mere showing that a murder occurred during the commission of a robbery is not sufficient to establish that the murder was committed with the expectation of pecuniary gain. Woratzeck v. Stewart, 97 F.3d 329, 334 (9th Cir.1996). “To establish the pecuniary gain aggravating circumstance, the state must prove that the expectation of pecuniary gain was a motive, cause, or impetus for the murder and not merely a result of the murder.” State v. Prasertphong, 206 Ariz. 167, 76 P.3d 438, 440 (2003) (internal quotation and alteration omitted). West contends that the murder was committed due to an exaggerated startle response attributable to his PTSD, and was nothing more than a killing during a “robbery gone bad.” The circumstances surrounding Bortle's murder do not support the argument.
West intended to steal Bortle's property. West had been to Bortle's house shortly before the murder and carefully examined the extensive amount of electronics equipment Bortle had for sale. Moreover, West ran out of cocaine on the day of the murder and did not have enough money to buy more. When Bortle interrupted him, West savagely beat Bortle, hog-tied him stuck him in a closet, and left him to die. And then West continued to do what he came for—he stole Bortle's electronic equipment and then stole his car to carry it away. West's alleged PTSD may help explain why West was motivated to steal Bortle's property, but it does nothing to undermine the finding the murder was committed for pecuniary gain. West offers no other explanation for the savageness of the beating he inflicted upon Bortle or hogtying him and leaving him in the closet other than to allow him to complete the robbery.
3. Especially Cruel and Heinous Manner of Killing
West contends that because he was suffering from PTSD, no reasonable factfinder could have found the manner in which he killed Bortle was especially cruel
or heinous. While West offers conclusory statements that a PTSD diagnosis would defeat the factors used to establish heinousness, he does not actually explain how PTSD affects any of the factors that the court weighed to establish that the manner in which he murdered Bortle was especially cruel and heinous. Rather, he primarily argues that the evidence was insufficient to establish the factors. West submits that an exaggerated startle response stemming from his PTSD explains his reaction. However, while a startle response might explain an initial, violent reaction, it does nothing to explain why West took further affirmative actions to hogtie Bortle, to move him into a closet where he left him to die, or why, after that savage outburst, he went on to steal Bortle's possessions and his car. Moreover, it does nothing to undercut the evidence of his behavior after the murder. Lisa Murray testified that she overheard West tell Richard Wojahn that West had “beat the fuck out of this old man and thrown him in a closet” in Tucson. When Lisa confronted him, West told her “not to worry about it” and that she “would have to live with it.” He also bragged to others about getting cuts and bruises on his hand from beating up “the old man he ripped off.” State v. West, 862 P.2d at 208. Taken together with the evidence of the cold-blooded and methodical nature of the crime itself, this severely undercuts West's argument that this aggravating factor would have been negated by evidence that he committed the crime in the midst of a startle response.
West's argument that he is actually innocent of the death penalty under Tison v. Arizona, 481 U.S. 137, 157–58, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), fails because his cruel, calculated conduct in hogtying Bortle and abandoning him to die following the beating shows “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death [and] represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Id.; see also Landrigan v. Trujillo, 623 F.3d 1253, 1257–58 (9th Cir.2010). West's reliance on the trial testimony of the prosecution pathologist suggesting that Bortle may have been rendered unconscious by the first blow does not advance the Tison claim. Even if the PTSD startle response theory were accepted, and even if Bortle had been rendered unconscious right away, it would not overcome West's subsequent behavior of binding the bloody victim, throwing him in a closet, and leaving him to die while later boasting about what happened.
West has not shown that a PTSD diagnosis would have changed the outcome of any of the three aggravating factors found by the sentencing court. At best, it would have supported the mitigating factor the court found—his family life. However, he has not satisfied his burden of showing, by clear and convincing evidence, that strengthening this one mitigating factor would have mandated a different outcome.
CONCLUSION
West has not satisfied his burden of proving, by clear and convincing evidence, that the evidence he now proffers is newly-discovered or that no reasonable factfinder would have found him eligible for the death penalty had he been aware of the evidence. Accordingly, West's application to file a second or successive petition for writ of habeas corpus is DENIED.
FNFN1. The record shows that West was buying and taking large amounts of drugs around the time of the murder and immediately thereafter. Defense counsel successfully excluded this evidence from trial but introduced it during sentencing to establish the extent and effects of West's substance abuse.
FNFN2. The record contains conflicting information as to whether the conviction was for voluntary or involuntary manslaughter.
FNFN3. LuAnn St. Aubin and Mike Richmond, both of whom witnessed the 1981 homicide, testified that the victim was a violent drug dealer who had been terrorizing people at a party and was participating in an attack on St. Aubin when West shot him. Although St. Aubin testified at the sentencing hearing that the victim had pulled a gun on West, she did not offer such testimony during the manslaughter trial, and Richmond provided a contrary account. According to Richmond, when West pointed a gun at the victim, the victim taunted him by saying he “didn't have the balls” to pull the trigger. West then shot him.