Correll v. Schriro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL EMERSON CORRELL, 

Petitioner-Appellant,

No. 03-99006

v.

D.C. No.

CHARLES L. RYAN, Warden, Acting  CV-87-01471-PHX-

Director, Arizona Department of SMM

Corrections; DORA B. SCHRIRO,

OPINION

Director,

Respondents-Appellees.



Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Argued and Submitted

September 26, 2005—San Francisco, California

Filed October 2, 2006

Before: Mary M. Schroeder, Chief Judge,

Diarmuid F. O’Scannlain and Sidney R. Thomas,

Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge O’Scannlain

17127

CORRELL v. RYAN 17131

COUNSEL

Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the

appellant.

James P. Beene, Kent E. Cattani, and Terry Goddard, Phoenix

Arizona, for the appellee.

OPINION

THOMAS, Circuit Judge:

Michael Emerson Correll, an Arizona inmate sentenced to

death, appeals the district court’s denial of his petition for a

writ of habeas corpus following our remand for an evidentiary

hearing. We reverse.

I

The factual history of this case was detailed in our earlier

opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir.

1998) (“Correll I”). Correll was convicted by an Arizona jury

in 1984 of first degree murder, attempted first degree murder,

kidnapping, armed robbery, and first degree burglary for his

role in a triple homicide. Id. at 1408. He was sentenced to

17132 CORRELL v. RYAN

death by the trial judge. Id. at 1410. His conviction was

upheld by the Arizona Supreme Court. State v. Correll, 715

P.2d 721 (Ariz. 1986). However, the Supreme Court modified

his death sentence as to one of the victims and invalidated one

aggravating factor. Id. at 730-31; 734-35.

In 1987, Correll timely filed a petition for post-conviction

relief pursuant to Arizona Rule of Criminal Procedure 32. In

this petition, Correll asserted multiple violations of his consti-

tutional rights, including his right to the effective assistance

of counsel during the guilt and penalty phases of his trial, his

right to confrontation, and his right to reliability in capital

sentencing. Correll later filed five supplements to his petition,

adducing evidence of his mental impairment and his attor-

ney’s ineffectiveness. The Arizona trial court summarily dis-

missed Correll’s petition and subsequently denied Correll’s

motion for rehearing. The Arizona Supreme Court denied

review without comment.

Correll subsequently filed a petition for writ of habeas cor-

pus in federal district court under 28 U.S.C. § 2254. Correll

alleged fifty-three constitutional violations at trial, at sentenc-

ing, and during the appellate process. The district court deter-

mined that twenty-six of Correll’s claims were procedurally

barred, then granted summary judgment against Correll on his

remaining constitutional claims.

On appeal, we affirmed all of the district court’s order

except as to Correll’s contention that he was entitled to an

evidentiary hearing on his claim of ineffective assistance of

counsel at sentencing. Correll I, 137 F.3d at 1420. We

remanded that issue to the district court with instructions to

hold an evidentiary hearing on the claim. Id.

On remand, the district court conducted a nine day eviden-

tiary hearing. Applying the standards set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny, the district

court concluded that the performance of Correll’s attorney at

CORRELL v. RYAN 17133

sentencing was deficient, but that Correll had suffered no

prejudice. Therefore, the district court granted judgment

against Correll on his federal habeas corpus petition. This

timely appeal followed.

Because Correll’s petition for a writ of habeas corpus was

filed before the effective date of the Antiterrorism and Effec-

tive Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (“AEDPA”), pre-AEDPA law governs our consid-

eration of the merits of the claims. Lindh v. Murphy, 521 U.S.

320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494 (9th

Cir. 1997) (en banc). Under pre-AEDPA law, we consider a

claim alleging ineffective assistance of counsel as a mixed

question of law and fact that we review de novo. Rios v.

Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002). We review the

district court’s denial of Correll’s habeas petition de novo and

the district court’s factual findings for clear error. Id.

II

[1] As the Supreme Court has long instructed, the Sixth

Amendment right to counsel in a criminal trial includes “the

right to the effective assistance of counsel.” McMann v. Rich-

ardson, 397 U.S. 759, 771 n.14 (1970). This right extends to

“all critical stages of the criminal process,” Iowa v. Tovar,

541 U.S. 77, 80-81 (2004), including capital sentencing, Silva

v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). “Because of

the potential consequences of deficient performance during

capital sentencing, we must be sure not to apply a more

lenient standard of performance to the sentencing phase than

we apply to the guilt phase of trial.” Mak v. Blodgett, 970

F.2d 614, 619 (9th Cir. 1992).

Under the familiar Strickland standard, to prevail on his

claim of ineffective assistance of counsel during the penalty

phase of his trial, Correll must demonstrate first that the per-

formance of his counsel fell below an objective standard of

reasonableness at sentencing, and second, that “there is a rea-

17134 CORRELL v. RYAN

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” 466 U.S. at 694. Under Strickland, we measure an attor-

ney’s performance against an “objective standard of

reasonableness,” measured “under prevailing professional

norms.” Id. at 688.

There are two aspects of Correll’s penalty phase defense at

issue on this appeal: the investigation of possible defenses,

and the presentation of the penalty phase defense.

A

[2] Counsel has a duty at penalty phase “to conduct a thor-

ough investigation of the defendant’s background.” Landri-

gan v. Schriro, 441 F.3d 638, 643 (9th Cir. 2006) (en banc)

(citing Williams v. Taylor, 529 U.S. 362, 396 (2000)). “To

perform effectively in the penalty phase of a capital case,

counsel must conduct sufficient investigation and engage in

sufficient preparation to be able to ‘present[ ] and explain[ ]

the significance of all the available [mitigating] evidence.’ ”

Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en

banc) (quoting Williams, 529 U.S. at 399) (alterations in origi-

nal). When it comes to the penalty phase of a capital trial, “[i]t

is imperative that all relevant mitigating information be

unearthed for consideration.” Caro v. Calderon, 165 F.3d

1223, 1227 (9th Cir. 1999), as amended.

The ABA Standards for Criminal Justice provide guidance

as to the obligations of criminal defense attorneys in conduct-

ing an investigation. Rompilla v. Beard, 545 U.S. 374, __, 125

S.Ct. 2456, 2466 (2005); Williams, 529 U.S. at 396. The stan-

dards in effect at the time of Correll’s capital trial clearly

described the criminal defense lawyer’s duty to investigate,

providing specifically that:

It is the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case and to

CORRELL v. RYAN 17135

explore all avenues leading to facts relevant to the

merits of the case and the penalty in the event of

conviction. The investigation should always include

efforts to secure information in the possession of the

prosecution and law enforcement authorities. The

duty to investigate exists regardless of the accused’s

admissions or statements to the lawyer of facts con-

stituting guilt or the accused’s stated desire to plead

guilty.

ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982

Supp.).

It is undisputed in this case that Correll’s attorney did little

investigation of potential mitigating evidence for presentation

at the penalty phase, although “[a]dequate consultation

between attorney and client is an essential element of compe-

tent representation of a criminal defendant.” United States v.

Tucker, 716 F.2d 576, 581 (9th Cir. 1983) (citation omitted).

Correll alleges that defense counsel only met with him once,

for five minutes between the trial and penalty phase. Correll

I, 137 F.3d at 1412. Defense counsel testified at the evidenti-

ary hearing that he met with Correll more than one time; how-

ever, it is apparent from the record that the consultation was

not extensive.

[3] Penalty phase investigations in capital cases should

include inquiries into social background and evidence of fam-

ily abuse, potential mental impairment, physical health his-

tory, and history of drug and alcohol abuse. Summerlin v.

Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). An

investigation should include examination of mental and physi-

cal health records, school records, and criminal records. Id.

“Defense counsel should also personally review all evidence

that the prosecution plans to introduce in the penalty phase

proceedings, including the records pertaining to criminal his-

tory and prior convictions.” Id. (citing Rompilla, 125 S.Ct. at

2465).

17136 CORRELL v. RYAN

[4] Although he was aware that potential mitigating evi-

dence existed, defense counsel did not explore any avenues

that might lead to development of evidence. Indeed, in light

of the abundance of classic mitigation evidence of which

counsel was aware, his almost complete failure to investigate

is startling. His attorney knew that, among other things, Cor-

rell came from a dysfunctional family, sustained a serious

head injury, was committed to various psychiatric facilities,

and that he was addicted to drugs; yet defense counsel did not

obtain the records nor did he interview witnesses concerning

these matters. Counsel did meet with the family members who

would cooperate, but he admitted that he met only once with

Correll’s father, sister, and brother, “around the kitchen table

at the same time,” and probably spent “[a] couple hours” with

them. Counsel did not obtain Correll’s school records,

although he admitted that they may have contained mitigating

evidence. He failed to obtain police reports on prior convic-

tions and records regarding the time when Correll was in the

custody of the California Youth Authority. Counsel did not

obtain Correll’s medical records and made no inquiry about

whether an X-ray or other diagnostic test was performed to

determine whether Correll suffered any brain injury following

an incident in which a wall fell on Correll’s head.

During the evidentiary hearing, counsel could not recall

what efforts he made to gather Correll’s psychiatric records,

although defense counsel did remember that he did not obtain

records from Correll’s stays at various mental health centers.1

Defense counsel testified that the principal mitigation evi-

dence he sought was information that would show Correll as

a “good person” and one who had “done good deeds.” But

even this limited investigation was unreasonably narrow.2 For

1

As the district court found, some of these records were destroyed

between the time of the trial and the time of the habeas investigation.

2

Further, such a limitation on the scope of the mitigation investigation

was unreasonable given that it was unlikely that the testimony would have

CORRELL v. RYAN 17137

example, Reverend Curry, a chaplain with the California

Youth Authority, was willing to testify on Correll’s behalf

and assist in anyway he could; indeed his wife told defense

counsel to contact the Reverend. No contact was ever made.

Yet, Curry testified that he would have testified if contacted.3

[5] Based on the foregoing, the district court was correct to

conclude that defense counsel provided deficient representa-

tion when he failed to seek and obtain documents relating to

Correll’s mental health and medical conditions. Defense

counsel’s failure to investigate falls far short of any objec-

tively reasonable standard against which we might measure

attorney performance under the standards of the Sixth

Amendment.

B

“There is no more important hearing in law or equity than

the penalty phase of a capital trial.” Gerlaugh v. Stewart, 129

F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concurring and

dissenting). At the penalty phase, a capital defendant has a

“constitutionally protected right [ ] to provide the jury with

. . . mitigating evidence.” Williams, 529 U.S. at 393. “Failure

to present mitigating evidence at the penalty phase of a capital

case constitutes ineffective assistance of counsel.” Bean v.

Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).

been sufficient to “humanize[ ] him during the time frame of the murder

conspiracy at issue.” Allen v. Woodford, 366 F.3d 823, 851 (9th Cir.

2004). Rather, the most likely type of evidence available was the type that

portrays defendant as a “person whose moral sense was warped by abuse,

drugs, [or] mental incapacity.” Id.

3

Rev. Curry was asked specifically at the evidentiary hearing “if Mr.

Collins had succeeded in getting ahold of you, would you have come to

testify on Mike Correll’s behalf?” He responded “Yes, sir, I would have.”

Later in the hearing, the question was posed again, “Had you been asked

by Steve Collins, you would have unhesitatingly come to help Mike at his

capital sentencing, would you not?” Rev. Curry answered, “Yes, sir.”

17138 CORRELL v. RYAN

[6] As anemic as the defense counsel’s investigation was,

his presentation of mitigating evidence at the penalty phase

was worse. Defense counsel put on no affirmative penalty

phase defense whatsoever. He did not call a single witness to

testify. He did not introduce any evidence. Rather, he elected

to allow the judge to make a decision on whether to sentence

Correll to death based solely on the state’s evidence and the

pre-sentence report.

[7] This was a critical error. “The failure to present mitigat-

ing evidence during the penalty phase of a capital case, where

there are no tactical considerations involved, constitutes defi-

cient performance, since competent counsel would have made

an effective case for mitigation.” Smith v. Stewart, 189 F.3d

1004, 1008-09 (9th Cir. 1999).

[8] The magnitude of this error becomes apparent when we

consider the effect of the error under Arizona law. At the time

of the penalty phase proceedings, Arizona law mandated the

death penalty when the defendant had a qualifying prior con-

viction if there was no mitigating evidence. Ariz. Rev. Stat.

§ 13-703 (1984). One of the aggravating circumstances found

by the sentencing judge was a previous violent felony. State

v. Correll, 715 P.2d at 731. Thus, the failure to present any

evidence in mitigation “all but assured the imposition of a

death sentence under Arizona law.” Summerlin, 427 F.3d at

640; see also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir.

1988) (noting that in Arizona, once an aggravating circum-

stance like a prior aggravated felony was found, death was

inevitable without mitigating evidence, and thus holding that

the failure to pursue psychiatric evidence constituted prejudi-

cially deficient performance).

In this case, the State argued five aggravating factors. Cor-

rell’s defense counsel disputed only a few of them. He dis-

puted that the crimes were cruel, heinous, and depraved, and

he argued that convictions for more than one homicide could

not be used as an aggravating factor because the statute autho-

CORRELL v. RYAN 17139

rizing this factor was not in effect on the offense date. At the

evidentiary hearing in this case, he conceded that he thought

“it was a veritable certainty” that the court would find “at

least two, and probably all five of [the] aggravating factors.”

The court found four aggravating factors.

Defense counsel’s entire mitigation argument was con-

tained in less than one page of a sentencing memorandum,

which is reproduced in toto here:

A. Defendant was under the influence of alcohol

and drugs at the time the offenses were commit-

ted. Guy Snelling stated in an interview with

police officers on April 12, that there was alco-

hol on the breath of Defendant at the time the

offenses were committed. It is obvious from

this and the conduct of the perpetrators, that

they were under the influence of alcohol or

drugs or both at the time the offenses were com-

mitted.

B. Defendant was only a follower in the commis-

sion of the crimes. Guy Snelling stated in an

interview with defense counsel on August 14,

1984, that it was clear that John Nabors was the

leader of the two perpetrators and was making

the decisions. This is further corroborated by

the fact that it was John Nabors who knew Guy

Snelling would have illicit drugs and money and

therefore, John Nabors must have done the

planning of the robbery.

C. Prior to the robbery, there was no reason to

believe that anyone would be present other than

Guy Snelling, and therefore, there was no prior

plan to kill Debra Rosen, Robin Cady or Shawn

D’Brito.

17140 CORRELL v. RYAN

D. Defendant has cooperated with the Adult Proba-

tion Office in the preparation of his presentence

report.

E. Defendant’s age.

That, in total, was defense counsel’s mitigation case. When

asked at the evidentiary hearing “what was your sentencing

strategy,” trial counsel responded that it was basically, “hop-

ing that Judge Howe liked Mr. Correll,” that “it was a drug

ripoff that went bad and that Michael was under the influ-

ence,” and that “he wasn’t the leader in the crimes.”

Defense counsel did not put on any witnesses or evidence

to support his mitigation case.4 His sentencing memo does not

even attempt to rebut three of the five aggravating factors

urged by the State. In his oral presentation at sentencing,

counsel mentioned the aggravating factors, but in form only,

without any substantial legal position or evidentiary support.

The entirety of his oral argument at the penalty phase consists

of approximately 7 pages of transcript. The state trial court

record states that “Defendant waives presentation of mitigat-

ing evidence.”

[9] Given his virtual concession of most of the aggravating

factors argued by the State, and waiver of the presentation of

mitigation evidence, the outcome was obvious: imposition of

the death penalty. The Arizona Supreme Court, in re-

weighing the aggravating and mitigating factors, found no

mitigating factors “sufficiently substantial to call for lenien-

cy.” State v. Correll, 715 P.2d at 735. The Court highlighted

4

As opposed to the dissent’s characterization of counsel “repeatedly

dr[awing] the sentencing judge’s attention” to the likelihood that Correll

was under the influence of drugs and alcohol at the time of the crime,

there is but a single mention of drugs and alcohol in the brief sentencing

memorandum and a single reiteration of that point at the sentencing hear-

ing.

CORRELL v. RYAN 17141

the lack of evidence presented in mitigation and noted that the

“defendant has offered no evidence or expert testimony on

which we could base a finding that he was unable to appreci-

ate the wrongfulness of his conduct.” Id. The Court was par-

ticularly dismissive of his attempt to count cooperation in the

pre-sentence investigation as a mitigating factor, noting “[i]t

is in defendant’s interest to cooperate at sentencing; defendant

should not be rewarded for self-serving acts.” Id.

As Correll demonstrated at his evidentiary hearing, there

was a substantial amount of mitigation evidence available for

presentation at the penalty phase. Correll had endured an abu-

sive childhood. His mother was a Jehovah’s Witness, whose

commitment to her church came before her commitment to

her family. She spent most of her time with the church, often

neglecting her six children’s basic needs. The children were

required to attend adult bible study class with her three nights

a week, for three hours per night. If they misbehaved or indi-

cated that they were confused or did not understand the reli-

gious doctrine, they were punished. Correll’s father was

largely absent but sometimes aided his wife in physically pun-

ishing their children. There was evidence of incest in the fam-

ily.

When Correl was seven, a brick wall collapsed on his head.

Although he was unconscious for some time after the acci-

dent, his parents did not seek medical treatment until several

days later when he was still not back to normal. Several

experts testified that this type of accident and the symptoms

Correll exhibited then and now indicate a high likelihood of

brain impairment.

Against this backdrop, Correll began experimenting with

alcohol and drugs around age ten. He was using marijuana,

LSD, and amphetamines regularly by age twelve, behavior

that can be characterized as self-medication for the everyday

trauma of his life, and the mental health diagnoses he later

received when he became a ward of the state.

17142 CORRELL v. RYAN

It is notable that each of the six Correll children report that

they had or have had substance abuse problems beginning in

childhood or adolescence. Further, at least five of the six chil-

dren spent time in juvenile correctional facilities, and all four

of the boys in the family have spent time in adult correctional

facilities.

In response to Correll’s obvious substance abuse problems,

his parents intervened with beatings and threats of kicking

him out of the house. Further, the state failed to recommend

drug or alcohol treatment despite Correll’s frequent contact

with the juvenile authorities.

After Correll was shot in the arm at age 14, the hospital

asked his parents to let him come home. They allowed him to

recuperate at home for three or four days before asking the

state to sever their parental rights. At that time, they cut off

all communication with their son and considered him dead as

required by their church’s teachings.

Correll became a ward of the state at age 14 and spent his

teenage years in various state institutions described as “gladi-

ator schools,” which were characterized as cruel and inhu-

mane, even by those who worked there. He was placed in

programs for low-performing students, which were referenced

as “dummy shacks.” Within months of becoming a ward of

the state, 14 year-old Correll became addicted to heroin.

Correll was committed to psychiatric institutions at least

twice during his teen years and was described at age 16 as

“severely psychologically impaired.” He was treated with a

tranquilizer/anti-psychotic drug while institutionalized, and

attempted suicide on two occasions. However, there is no evi-

dence that Correll continued to receive treatment after these

stays.

Methamphetamine eventually became Correll’s drug of

choice, which he used whenever he could. Correll offered

CORRELL v. RYAN 17143

expert testimony during the evidentiary hearing of the effect

of high methamphetamine use, including brain damage,

blackouts, and methamphetamine-induced psychosis, all of

which may be compounded by sleep deprivation.

At the time of the murders, Correll was injecting a quarter

gram to a gram of methamphetamine in one shot, and inject-

ing three to four shots a day. According to expert testimony

at the evidentiary hearing, Correll was in the top 1% of

methamphetamine users in terms of quantity. During the

period of time in which the crimes were committed, Correll’s

typical pattern was to go seven to ten days without sleep, fol-

lowed by one to two days of continuous sleep. He was

observed injecting methamphetamine shortly before the

crimes were committed. Expert testimony indicated that he

was likely having impulse control problems, judgment impair-

ment, and aggressiveness at the time of the crime, and may

have been experiencing drug-induced paranoia.

[10] In sum, there was a substantial amount of mitigating

evidence available5 that is clearly sufficient to establish preju-

dice under the Supreme Court’s standard in Wiggins, 539 U.S.

at 534-38. Counsel’s failure to present a mitigation case con-

stitutes constitutionally ineffective assistance of counsel.

C

The State contends that the failure to put on penalty phase

evidence was a strategic choice, protected under Strickland.

To be sure, under Strickland, we must defer to trial counsel’s

strategic decisions. “A reasonable tactical choice based on an

5

The government argues that much of this evidence was already before

the sentencing court in the pre-sentence report. While the bare facts of

Correll’s troubled past were indeed presented to the court, without further

investigation and presentation of contextual evidence and argument, such

facts served only to demonize Correll rather than to mitigate the appropri-

ateness of imposing the death penalty for his actions.

17144 CORRELL v. RYAN

adequate inquiry is immune from attack under Strickland.”

Gerlaugh, 129 F.3d at 1033. However, to be considered a

constitutionally adequate strategic choice, the decision must

have been made after counsel has conducted “reasonable

investigations or [made] a reasonable decision that makes par-

ticular investigations unnecessary.” Strickland, 466 U.S. at

691. In addition, “[e]ven if [a] decision could be considered

one of strategy, that does not render it immune from attack—

it must be a reasonable strategy.” Jones v. Wood, 114 F.3d

1002, 1010 (9th Cir. 1997) (emphasis in original). Defense

counsel both failed to investigate potential mitigation evi-

dence sufficiently to make an informed strategic decision and,

when considered objectively, his strategy cannot be consid-

ered reasonable.

1

[11] A decision by counsel not to present mitigating evi-

dence cannot be excused as a strategic decision unless it is

supported by reasonable investigations. See Williams, 529

U.S. at 394 (recognizing a constitutional right to present miti-

gating evidence to the jury); Silva, 279 F.3d at 843 (recogniz-

ing “the breadth of a criminal defendant’s constitutional

protection against his attorney’s failure to investigate mitigat-

ing evidence when defending his client against a capital sen-

tence”). In Wiggins, the Supreme Court held that the

traditional deference owed to the strategic judgments of coun-

sel is not justified where there was not an adequate investiga-

tion “supporting those judgments.” 539 U.S. at 521.

Here, as we have discussed, defense counsel failed to make

a reasonable investigation into potential mitigating evidence.

Therefore, his decision not to put on a mitigation case cannot

be considered to be the product of a strategic choice. An unin-

formed strategy is not a reasoned strategy. It is, in fact, no

strategy at all. Cf. Strickland, 466 U.S. at 690-91 (holding that

“strategic choices made after less than complete investigation

CORRELL v. RYAN 17145

are reasonable precisely to the extent that reasonable profes-

sional judgments support the limitations on investigation”).

In Silva, for example, we held that in the absence of dili-

gent investigation, counsel cannot make a reasoned tactical

decision regarding whether or not to present mitigating evi-

dence. 279 F.3d 846-47. Indeed, we determined that even if

a client forecloses certain types of mitigation evidence, “it

arguably becomes even more incumbent upon trial counsel to

seek out and find alternative sources of [mitigating evi-

dence].” Id.

[12] Here, an abundance of classic mitigation evidence

existed. However, counsel failed to investigate these potential

avenues, and was therefore unable to make an informed deci-

sion as to whether to present the evidence. His choice not to

present mitigation evidence, therefore, cannot be justified as

strategic.

2

To the extent there was any strategy involved in the penalty

phase presentation, it cannot be considered a reasonable strat-

egy by any objective measure.

Defense counsel chose to rely on the pre-sentence report

prepared by a state probation officer, despite characterizing it

as “one-sided.” During his short sentencing argument, defense

counsel criticized the author of the pre-sentence report for not

talking to several people who could have provided mitigating

statements. The irony, of course, is that defense counsel could

have put into evidence during the penalty phase the very miti-

gating evidence that he felt was important for the probation

officer to hear.

The report described the crimes as “particularly heinous”

and speculated that “the murder scene in the desert must have

been particularly gruesome.” The probation officer concluded

17146 CORRELL v. RYAN

that, given the circumstances of the crime, “[t]hey obviously

planned the murders ahead of time and then calculatingly and

unemotionally carried out their plans.” The pre-sentence

report described Correll’s history as “a text book of psychopa-

thology,” and “riddled with instances of violent behavior and

armed aggression.” The probation officer determined that

Correll “was not capable of functioning in society.” The

report concluded with the observation that “[h]e is a threat, a

menace, and in my opinion, the community at large should

never again be subjected to the risk of recurrence of this type

of behavior.” These statements are hardly the words of miti-

gation, and no competent capital defense counsel would have

relied upon the report as providing mitigation evidence, much

less the sole source of mitigation evidence.

[13] Defense counsel testified at the evidentiary hearing

that he “was basically hoping [the judge] would think it was

a one-time incident and want to give Mr. Correll a break and

find a mitigating factor.” However, the pre-sentence report

contained explicit references to an extensive criminal history

that belied this theory. Indeed, the page and a half of criminal

convictions reported is longer than defense counsel’s entire

mitigation presentation in his sentencing memorandum. It was

not a reasonable strategy to rely on the pre-sentence report to

prove that the crime was a “one-time incident,” when the

entire report drew the opposite conclusion. Further, when

examined at the evidentiary hearing, defense counsel was

forced to admit that portraying the crime as a one-time drug

ripoff gone bad was not something that would constitute a

mitigating factor.

During the evidentiary hearing, defense counsel revealed a

fundamental misconception of mitigation evidence. He

referred to the sentencing hearing as “a dog and pony show”

and “so much smoke.” He said he felt that the judge would

not have been receptive to mitigation evidence that was

“touchy-feelly [sic] fuzzy-headed kind of stuff.” When asked

about the classic mitigation evidence, such as potential brain

CORRELL v. RYAN 17147

injury,6 a history of drug addiction, and abuse suffered as a

child, he testified that he didn’t think of the evidence as favor-

able evidence. However, it is precisely this type of evidence

that the Supreme Court has termed as “powerful.” Wiggins,

539 U.S. at 534.

It appears clear from examination of his testimony that

defense counsel was afraid of the sentencing judge. In fact, he

forewent psychological testing because he felt that the judge

would learn of it, and testified that he might have presented

evidence of Correll’s history of drug addiction had he been

before a different judge.7 He believed that the judge would

use mitigating evidence as an aggravating factor, in violation

of the mandatory language of Ariz. Rev. Stat. § 13-703(E).

However, this presumes that the judge would not follow the

law—speculation that is not supported by the record.

Fear of a particular sentencing judge’s reaction also ignores

the fact that, in capital cases, the Arizona Supreme Court con-

6

As the district court noted, the Arizona Courts place significant weight

on brain injuries as mitigating evidence. Similarly, “[w]e have repeatedly

held that counsel may render ineffective assistance if he is on notice that

his client may be mentally impaired, yet fails to investigate his client’s

mental condition as a mitigating factor in a penalty phase hearing.” Caro

v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (internal quotations

omitted).

7

The dissent characterizes this decision not to present psychological evi-

dence as strategic because it would “make it easier for the judge to sen-

tence Correll to death because it would cause him to view Correll as

permanently damaged psychologically.” However, counsel’s failure to

investigate Correll’s psychological history for fear of the trial judge cannot

be termed “strategic.” Counsel worried that the trial judge would presume

that any psychological evaluation portrayed Correll in a negative light if

he granted a contact visit order for such an evaluation and the results were

never submitted to the court. This fear presumes that the trial judge would

act inappropriately by considering evidence outside of the record in mak-

ing his sentencing decision and fails to recognize the importance of creat-

ing a record for review, even if the trial judge likely would be

unsympathetic. Psychological injury is the type of evidence the Supreme

Court has viewed as classic mitigating evidence. Wiggins, 539 U.S. at 534.

17148 CORRELL v. RYAN

ducts an independent review of the aggravating and mitigating

factors and re-weighs them. See State v. Johnson, 710 P.2d

1050, 1055 (Ariz. 1985) (“Whenever the trial court imposes

the death sentence we must conduct an independent review of

the facts that established the aggravating and mitigating cir-

cumstances in order to determine for ourselves if the latter

outweigh the former and justify the sentence.”); see also State

v. Richmond, 560 P.2d 41, 51 (Ariz. 1976) (“[T]he gravity of

the death penalty requires that we painstakingly examine the

record to determine whether it has been erroneously

imposed.”). The Arizona Supreme Court also conducts a pro-

portionality review. State v. Correll, 715 P.2d at 737-38.

Therefore, even if defense counsel’s fears about the judge

were legitimate, there is no strategic excuse for failing to put

on evidence in support of statutory mitigating factors that the

Arizona Supreme Court could have considered in its indepen-

dent re-weighing of aggravating and mitigating factors.

[14] In short, to the extent that defense counsel had a strat-

egy at all, it cannot be considered an objectively reasonable

strategy.

3

Counsel’s ineffective assistance at sentencing cannot be

excused as strategic. He failed to conduct a sufficient investi-

gation to be able to make an informed judgment. To the extent

his decisions reflected any tactical considerations, his

approach of not putting on a mitigation case cannot be consid-

ered an objectively reasonable strategy, even when viewed

under the highly deferential Strickland standard.

III

[15] It is not enough for Correll to establish that his coun-

sel’s performance at sentencing fell below an objective stan-

dard of reasonableness at sentencing. He must also “show that

there is a reasonable probability that, but for counsel’s unpro-

CORRELL v. RYAN 17149

fessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. A reasonable probabil-

ity is a probability sufficient to “undermine confidence in the

outcome.” Id.

In considering this question, we have recognized that defi-

cient performance and prejudice questions may be closely

related. See Summerlin, 427 F.3d at 643 (“[W]e conclude that

the failure of trial counsel to investigate, develop, and present

mitigating evidence at the penalty phase hearing has under-

mined our confidence in the sentence of death imposed by the

trial judge.”); Smith, 189 F.3d at 1011 (“Because of [coun-

sel’s] failure to provide competent representation, our confi-

dence in the outcome of Smith’s sentencing has been

undermined.”). In establishing prejudice under Strickland, it

is not necessary for the habeas petitioner to demonstrate that

the newly presented mitigation evidence would necessarily

overcome the aggravating circumstances. Williams, 529 U.S.

at 398. Accordingly, even where the facts discovered on

habeas review do not rise to the level of statutory mitigation,

we have held that a reasonable probability existed that this

information could have affected the sentence. Smith, 140 F.3d

at 1270; see also Rompilla, 125 S. Ct. at 2469 (“although we

suppose that [the sentencer] could have heard it all and still

have decided on the death penalty, that is not the test”).

[16] Here, as we have discussed, there was a substantial

amount of mitigating evidence that could have been pres-

ented, but was not. As the Supreme Court noted, “[h]ad the

jury been able to place petitioner’s excruciating life history on

the mitigating side of the scale, there is a reasonable probabil-

ity that at least one juror would have struck a different bal-

ance.” Wiggins, 539 U.S. at 537. The failure to present

mitigating evidence was particularly damaging under Arizona

law that existed at the time, which virtually guaranteed the

imposition of the death penalty based on Correll’s prior quali-

fying conviction.

17150 CORRELL v. RYAN

The dissent argues that Correll was not prejudiced by the

failure to investigate and present mitigation evidence and

argument, because the presentation of such evidence and

argument “would have enabled the prosecution to present

very damaging rebuttal evidence.” However, a significant

portion of that damaging rebuttal evidence was already avail-

able through the pre-sentence report. These facts could pro-

vide the basis for either the dehumanization of Correll, or

mitigation provided the proper context.8

[17] Correll was constitutionally entitled to the presentation

of a mitigation defense. He did not receive one, although sub-

stantial mitigation evidence existed. Most importantly,

because Arizona law required the imposition of a death sen-

tence if aggravating factors were proven and no mitigating

factors presented, the failure to present any mitigation defense

constituted ineffective assistance of counsel under the stan-

dards set forth in Strickland. The fear of a trial judge cannot

be considered strategic justification for forgoing the presenta-

tion of a mitigation defense, particularly given that (1) Ari-

zona law required imposition of the death penalty when no

mitigating factors were found, and (1) the Arizona Supreme

Court was required to re-weigh the aggravating and mitigating

factors.

[18] We conclude that Correll is entitled to relief in the

form of a new penalty phase trial. We reverse the judgment

of the district court and remand with instructions to issue a

writ of habeas corpus.

REVERSED.

8

That some of the defense witnesses at sentencing might have presented

inculpatory testimony is not particularly significant, given that counsel had

abandoned at sentencing any claims of actual innocence or misidentifica-

tion.

CORRELL v. RYAN 17151

O’SCANNLAIN, Circuit Judge, dissenting:

I respectfully dissent from the court’s conclusion that Cor-

rell has met the “highly demanding and heavy burden of

establishing actual prejudice” in the pursuit of his claim of

ineffective assistance of counsel during the penalty phase of

the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.

2005) (internal quotation marks omitted). The majority

ignores the mountain of precedent which provides that, in

assessing prejudice, we must consider not only the likely ben-

efits of the mitigating evidence counsel failed to present, but

also its likely drawbacks. The majority also substitutes its

independent analysis of the record for that of the district

court, and relies on its own view of the evidence rather than

considering, as we must, the effect the evidence would have

had on an Arizona sentencing judge twenty-two years ago.

Because I do not believe that Correll has met his burden “af-

firmatively [to] prove prejudice,” I would affirm the judgment

of the district court denying the petition for writ of habeas

corpus. See Strickland v. Washington, 466 U.S. 668, 693

(1984).

I

The facts of Correll’s brutal crimes are disturbing, but must

be recounted to illustrate the unlikelihood that Correll’s new

evidence would have convinced the sentencing judge not to

impose the death penalty.1

A

On the night of April 11, 1984, as Guy Snelling and his gir-

lfriend Debra Rosen were getting ready to go to sleep, a

1

Although it is normally not necessary to restate the facts and proce-

dural history in a dissenting opinion, the reader will understand that this

exercise is necessary due to the sharp divergence between the majority’s

presentation of the facts and the district court’s factual findings.

17152 CORRELL v. RYAN

knock came at the door. Snelling answered the door and

found John Nabors, his co-worker, and Correll, whom he had

not met.

After Snelling let the two men into his home, Nabors pulled

a gun and demanded money. Correll secured Snelling and

Rosen with duct tape. When Robin Cady and Shawn D’Brito,

two friends of Snelling, unwittingly arrived at the house, Cor-

rell secured them with duct tape as well. Then Correll and

Nabors escorted Snelling throughout his home to search for

money and valuables.

After raiding the house for approximately 45 minutes,

Nabors and Correll exited with Cady, D’Brito, and Snelling,

whom they forced into Cady’s car. Nabors briefly went back

inside to secure Rosen. While holding the gun on the three

victims, Correll drove to a deserted area where Nabors’s truck

was parked. Nabors took his truck and followed Correll, who

was still driving Cady’s car with the three victims, to a desert

area north of Phoenix. There, they forced the three victims out

of the car and made them lie face down on the ground. Correll

shot Snelling in the back of the head. Nabors then shot and

killed D’Brito, and then tried to shoot Cady. The gun misfired

a couple of times and Correll said “hurry up, hurry up, . . .

okay, it’s cool, no cars coming, get a shell chambered.” After

reloading the gun, Nabors was finally successful in shooting

and killing Cady. After Correll and Nabors left, Snelling, who

miraculously did not die, reported the crime. Rosen, whom

Nabors and Correll had left in the house when they drove the

other three victims into the desert, was later found in the

house, killed by strangulation.

B

At trial, Correll’s sole defense was misidentification—

namely, that Snelling, who was under the influence of drugs

and alcohol when the crimes occurred, had wrongly identified

Correll as one of his assailants, and that it was reasonably

CORRELL v. RYAN 17153

likely that Correll’s brother Terry, who resembled Correll,

had committed the crimes in Correll’s stead. Unpersuaded by

this defense, a jury convicted Correll of three counts of first

degree murder, one count of attempted first degree murder,

one count of armed robbery, one count of first degree bur-

glary, and four counts of kidnaping.

At sentencing, the government urged the court to impose

the death penalty. The government asserted that five statutory

aggravating factors were present: (1) a previous violent felony

conviction;2 (2) grave risk of death to others in addition to the

persons murdered;3 (3) commission of the murders in antici-

pation of pecuniary gain;4 (4) commission of the murders in

an especially heinous, cruel or depraved manner;5 and (5) con-

victions for multiple murders during the offense.6

In response, Correll’s attorney argued that the prosecution

had failed to prove, as required by Enmund v. Florida, 458

U.S. 782 (1982), that Correll intended to kill Rosen, Cady,

and D’Brito. Although the sentencing court did not accept this

argument, Correll’s attorney preserved it for appeal and the

Arizona Supreme Court later modified one of Correll’s death

sentences to life imprisonment on this ground. See State v.

Correll, 715 P.2d 721, 730-31 (Ariz. 1986). Correll’s attorney

also countered each of the government’s proffered aggravat-

ing factors.7 He argued—and the sentencing court agreed—

2

Ariz. Rev. Stat. § 13-703(F)(2).

3

Ariz. Rev. Stat. § 13-703(F)(3).

4

Ariz. Rev. Stat. § 13-703(F)(5).

5

Ariz. Rev. Stat. § 13-703(F)(6).

6

Ariz. Rev. Stat. § 13-703(F)(8).

7

The majority unduly discounts defense counsel’s attack of the govern-

ment’s asserted aggravating factors. See Maj. Op. at 17140-41. Both the

Arizona Supreme Court and the state trial court disagreed with the majori-

ty’s assessment of counsel’s performance with respect to the “grave risk

of death to others” and the “multiple murders” aggravating factors, agree-

ing with counsel’s assertion that the first factor was unsupported and the

17154 CORRELL v. RYAN

that the “grave risk of death to others” aggravating factor did

not apply. He also argued that the multiple murder aggravat-

ing factor could not be considered. Although the sentencing

court did not accept this argument, Correll’s attorney pre-

served it for appeal and the Arizona Supreme Court later

invalidated this aggravating factor. See id. at 734-35. Correll’s

attorney unsuccessfully argued that the evidence did not sup-

port the remaining aggravating factors.

In addition to challenging the government’s aggravating

factors, Correll’s attorney also pointed to mitigating evidence.8

In particular, he emphasized that Correll was not the trigger

man as to the three people who died and that “John Nabors

was the leader.” He noted that “Mr. Nabors was the one that

knew Guy Snelling was a drug dealer, that Guy Snelling

would have money and drugs [when] the robbery occurred.

So, it’s obvious that John Nabors did plan the robbery.” He

drew the court’s attention to Snelling’s statement that “it

appeared to him that John Nabors was the leader, was the one

calling the shots, so to speak.” He further noted that, prior to

the robbery, Correll could not have reasonably anticipated

that anyone would be present in the home other than Guy

Snelling. Accordingly, he could not have planned the three

deaths.9

second was unconstitutional in this case. The Arizona Supreme Court also

found persuasive defense counsel’s argument that the government failed

to prove beyond a reasonable doubt that Correll intended to kill one victim

and therefore the death penalty could not be imposed on that count. Fur-

thermore, counsel made compelling substantive legal and factual argu-

ments with respect to the other aggravating factors.

8

Quoting the state trial court record, the majority asserts that the “De-

fendant waive[d] presentation of mitigating evidence.” Maj. Op. at 17140;

see also id. at 17140. This excerpt, however, was only the conclusion of

the court clerk. Indeed, defense counsel adamantly stated that “[w]e didn’t

waive” the presentation of mitigating evidence.

9

A defendant’s inability reasonably to foresee that his conduct would

cause death to another person is a statutory mitigating factor. See Ariz.

Rev. Stat. § 13-703(G)(4).

CORRELL v. RYAN 17155

Correll’s attorney also argued in both his sentencing memo-

randum and his oral argument that Correll was under the

influence of drugs and alcohol at the time of the murders.10 He

specifically drew the sentencing judge’s attention to Snell-

ing’s statement to the police that he smelled alcohol on Cor-

rell’s breath during the crimes. Correll’s attorney further

argued that “the reason that Mike [Correll] has had problems

is the fact that when he was 14 years old, that both of his par-

ents abandoned him and what can be expected when someone

is abandoned by their parents at such an early age?” Correll’s

attorney also argued that Correll’s age—24—was mitigating.11

Although counsel knew that Correll had received psycho-

logical counseling, counsel declined to develop psychological

evidence because he believed, based on his conversations

with Correll, that the only possible diagnosis was antisocial

personality disorder. As counsel explained at the evidentiary

hearing, he believed that this diagnosis would carry little miti-

gating weight with the sentencing judge and would, in fact,

make it easier for the judge to sentence Correll to death

because it would cause him to view Correll as permanently

damaged psychologically.12

10

A defendant’s inability to appreciate the wrongfulness of his conduct

or to conform his conduct to the requirements of law is a statutory mitigat-

ing factor. See Ariz. Rev. Stat. § 13-703(G)(1).

11

A defendant’s age is a statutory mitigating factor. See Ariz. Rev. Stat.

§ 13-703(G)(5).

12

The district court explained, based on the evidence presented at the

sentencing hearing:

Rather than argue Petitioner’s personality disorder to Judge

Howe, [counsel] decided that Petitioner had a better chance to

avoid the death penalty if he portrayed that Petitioner was

involved in a drug ripoff which had gone terribly wrong, that

Petitioner had only been a follower in the matter, that he had not

been the trigger-man as to the three people who died, that Guy

Snelling had reported to police that Petitioner was under the

influence of drugs and/or alcohol at the time of the crimes, and

that he should be shown sympathy because his family abandoned

him at the age of 14.

17156 CORRELL v. RYAN

C

The sentencing judge ultimately found four statutory aggra-

vating circumstances.13 Determining that the mitigating evi-

dence did not outweigh these factors, the judge sentenced

Correll to death on each of the murder counts.14 The Arizona

Supreme Court affirmed Correll’s convictions, with the modi-

fications previously mentioned. It then re-weighed the aggra-

vating and mitigating factors and determined that the death

penalty was appropriate. Correll, 715 P.2d at 736.

In his state petition for postconviction relief, Correll

alleged that his counsel rendered ineffective assistance at sen-

tencing. He contended that during the month that elapsed

between the jury verdict and the sentencing hearing, his attor-

ney met with him for just five minutes. He also contended that

his attorney failed to investigate and to develop available evi-

dence relating to his psychiatric history and condition at the

time of the crimes. The state trial court summarily dismissed

the petition, stating that

[n]o colorable issues relating to ineffective assis-

tance of counsel are raised. In this respect, the Court

specifically recalls that the trial work of defense

counsel was precise, careful, and competent, and

manifested strategic and tactical judgments of the

same high quality.

13

The Supreme Court has since held that Arizona’s practice of judges

finding aggravating factors violates the Sixth Amendment right to a jury.

See Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply, however,

to cases such as this one that were already final on direct review. See

Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

14

The majority erroneously states that “Arizona law required imposition

of the death penalty when no mitigating factors were found.” Maj. Op. at

17150. But, as the majority itself recognizes in the preceding sentence,

Arizona law only required the imposition of the death penalty if aggravat-

ing factors were proven and no mitigating factors sufficiently substantial

to call for leniency were found.

CORRELL v. RYAN 17157

The Arizona Supreme Court denied review without comment.

Correll later filed a federal petition for writ of habeas cor-

pus and the district court entered summary judgment against

him. On appeal (“Correll I”), we held that Correll’s ineffec-

tive assistance allegations, which had not been fully explored

in state court, entitled him an evidentiary hearing. We held

that Correll had established (1) that the state court trier of fact

had not conducted a full and fair hearing to find the relevant

facts, and (2) that his allegations, if proven, might constitute

a colorable ineffective assistance claim. Correll v. Stewart,

137 F.3d 1404, 1411-12 (9th Cir. 1998).

D

Pursuant to our instructions on remand, the district court

conducted a nine-day evidentiary hearing on Correll’s ineffec-

tive assistance of counsel claim. Correll, who waived his

appearance, called fourteen witnesses. The government called

three witnesses. The district court studied reams of docu-

ments, including Correll’s attorney’s notes, which were nearly

a quarter-century old, and Correll’s childhood medical

records, which were two decades older.

Based on the evidence presented at the hearing, the district

court rejected Correll’s allegation that his attorney only spent

five minutes with him between conviction and sentence. The

district court found instead that “[p]rior to sentencing, [coun-

sel] had multiple face-to-face meetings and phone calls with

Petitioner” in which he “discuss[ed] with Petitioner the over-

all mitigation case and the specific reasons he would present

to the court in favor of a life sentence rather than the death

penalty.” The district court found that counsel spoke to

between 40 and 50 witnesses, including all of Correll’s family

members who would cooperate. The district court further

found that, unfortunately, “[t]he witnesses were not able to

provide relevant useful mitigation information. In fact, in

17158 CORRELL v. RYAN

many instances, the witnesses only provided inculpatory and

non-mitigating information.”

After outlining all the evidence in a detailed 109-page dis-

position, the district court found constitutionally deficient per-

formance on two narrow grounds: (1) counsel’s failure to

obtain medical treatment records arising out of a head injury

that occurred when Correll was seven years old and (2) coun-

sel’s failure to thoroughly review Correll’s mental health

records. The court determined that a reasonable attorney

would have investigated these matters for possible mitigating

evidence rather than relying on his own impression, based on

his interaction with the defendant, that the defendant had no

intellectual or psychological deficits that could serve as miti-

gating evidence.

Notwithstanding these errors, the district court found that

Correll was not prejudiced by counsel’s ineffectiveness. After

postconviction counsel developed all the evidence relating to

Correll’s head injury and mental health history, it was clear

that there was “a lack of substantial mitigation” available

because Correll, in the words of the district court, “is a highly

functioning adult” who has never suffered from brain damage

or a major psychological disorder. Furthermore, the district

court found that much of the evidence Correll now claims

counsel should have put before the sentencing judge would

have been counterproductive because, in the words of the dis-

trict court, it would have “opened the door for the prosecution

to come forward with strong damaging rebuttal information to

counter its mitigating effect.”

II

As the Supreme Court has made clear, we do not presume

prejudice from counsel’s ineffective assistance. Strickland,

466 U.S. at 693. Once we determine that “counsel’s perfor-

mance was deficient, [Correll] still bears the highly demand-

ing and heavy burden of establishing actual prejudice.” Allen,

CORRELL v. RYAN 17159

395 F.3d at 1000 (internal quotation marks omitted) (empha-

sis added). This burden “affirmatively [to] prove prejudice”

requires showing more than just the possibility that counsel’s

performance prejudiced the outcome. Strickland, 466 U.S. at

693. Correll must demonstrate “a reasonable probability” that,

but for counsel’s constitutionally deficient performance, he

would have received a lesser sentence. Id. at 695. In assessing

prejudice, of course, “we are not asked to imagine what the

effect of certain testimony would have been upon us personal-

ly.” Stewart v. Smith, 140 F.3d 1263, 1270 (9th Cir. 1998).

We instead must determine what the effect of Correll’s new

evidence might have been upon the Arizona sentencing judge

at the time of Correll’s sentencing hearing twenty-two years

ago.15 Id.

The majority, in reaching its conclusion that Correll has

met his heavy burden to demonstrate prejudice, ignores the

mountain of precedent which provides that we must consider

not only the benefits of the ostensibly mitigating evidence

counsel failed to present, but also its drawbacks. The Supreme

Court has long instructed that we must consider whether the

new mitigating evidence, if presented, would have been coun-

terproductive. In Darden v. Wainwright, 477 U.S. 168, 186

(1986), the Supreme Court held that trial counsel’s failure to

present any mitigating evidence did not constitute deficient

performance because the presentation of such evidence would

open the door to damaging rebuttal evidence. Similarly, in

Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court

held that psychological records were “by no means uniformly

helpful to petitioner because they suggest violent tendencies

that are at odds with the defense’s strategy of portraying peti-

tioner’s actions on the night of the murder as the result of

[another person’s] strong influence upon his will.” Id. at 793.

15

Because Correll’s petition for a writ of habeas corpus was filed before

the effective date of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, pre-AEDPA law

governs our review. Lindh v. Murphy, 521 U.S. 320, 327 (1997).

17160 CORRELL v. RYAN

Based on these cases, we have held that an attorney who

failed to present psychological testimony relating to the

defendant’s antisocial personality disorder was not ineffective

because such testimony “would have allowed the prosecution

during cross-examination and rebuttal to rehash the horrific

details of [the] crimes.” Bonin v. Calderon, 59 F.3d 815, 836

(9th Cir. 1995). The Supreme Court, in Wiggins v. Smith, 539

U.S. 510 (2003), repeatedly emphasized that this line of cases

remains in effect. In finding that Wiggins had met his burden

to prove prejudice, the Supreme Court noted “Wiggins d[id]

not have a record of violent conduct that could have been

introduced by the State to offset” the mitigating evidence. Id.

at 537. The Court explained that “Wiggins’s history contained

little of the double edge” present in other cases. Id. at 535. It

also noted that there was no evidence “suggest[ing] that a mit-

igation case, in its own right, would have been counterproduc-

tive.” Id. at 525. The majority errs by ignoring the fact that,

unlike Wiggins, much of new mitigating evidence Correll

argues his attorney should have presented would have enabled

the prosecution to present very damaging rebuttal evidence.

The majority compounds this error by substituting its own

independent review of the record for that of the district court.

Our review of the district court’s factual findings is supposed

to be “significantly deferential, in that we must accept the dis-

trict court’s factual findings absent a definite and firm convic-

tion that a mistake has been committed.” Silva v. Woodford,

279 F.3d 825, 835 (9th Cir. 2002) (internal quotation marks

omitted). As long as the district court’s account of the evi-

dence “ ‘is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.’ ” Phoenix Engineer-

ing and Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d

1137, 1141 (9th Cir. 1997) (quoting Anderson v. Bessemer

City, 470 U.S. 564, 573-74 (1985)). Unfortunately, the major-

ity repeatedly flouts this standard of review. As set out below,

CORRELL v. RYAN 17161

these errors lead the majority to eviscerate the prejudice stan-

dard set out in Wiggins, 539 U.S. 510.

Taking the facts as they actually are, not as the majority

wishes them to be, it is apparent that Correll failed to carry

his burden to demonstrate “a reasonable probability” that, but

for counsel’s constitutionally deficient performance, he would

have received a lesser sentence. Strickland, 466 U.S. at 695.

A

First, counsel’s failure to obtain the medical records relat-

ing to Correll’s childhood head injury had virtually no impact

on sentencing because these records did not, in fact, demon-

strate any brain damage. Based on testimony received from

neuropsychologists, the district court found that Correll “did

not suffer any brain injury from the block wall that fell on him

when he was 7 years old.” The district court credited a

neuropsychologist’s testimony “that of all the capital defen-

dants he has tested, Petitioner is one of the highest function-

ing” and determined that Correll is “a highly functioning

adult.”

The medical records from the incident support the district

court’s assessment. After the childhood injury, Correll was

diagnosed with a subgaleal hematoma, which is a bruise or

collection of blood under the scalp, but above the skull. The

hematoma cleared in five days, at which time a doctor

described the seven-year-old Correll as alert and well. See

Smith v. Stewart, 189 F.3d 1004, 1013 n.4 (9th Cir. 1999)

(noting that “the absence of [a presentation of] mitigating evi-

dence may be irrelevant when no substantial mitigating evi-

dence is available”). I accordingly cannot agree with the

majority’s conclusion that Correll has carried his burden to

establish a reasonable possibility that he would have received

a lesser sentence if the records relating to his childhood head

injury had been before the sentencing judge.

17162 CORRELL v. RYAN

B

Second, Correll’s new psychiatric evidence also would not

have significantly helped his case. The district court found

that “there is insufficient evidence to support that Petitioner

has ever suffered from any major mental illness, whether

PTSD [post traumatic stress disorder], a major depressive dis-

order, or a bipolar disorder.” The district court reached this

factual finding after two psychological experts testified that

there was no evidence Correll has ever suffered from these

disorders. The sole witness who speculated that Correll might

have suffered from post traumatic stress disorder acknowl-

edged that such a diagnosis was “only a possibility.” The dis-

trict court found Correll’s self-reporting of bipolar disorder

and severe depression incredible in light of Correll’s obvious

motive to fabricate and in light of the fact that these diagnoses

do not appear in his records and Correll indicated that he was

never given medication to treat them.

The district court also found that the evidence did not sup-

port Correll’s contention that he was given anti-psychotic

medications while in custody. In reaching this factual finding,

the district court noted that the mental health experts for both

parties scrutinized Correll’s medical records from the Califor-

nia Department of Corrections (“CDC”) and reported the

absence of any indication that anti-psychotic medication was

ever prescribed. Although it appears that Correll was given

Mellaril for a period of time as a juvenile, the government’s

mental health expert, Dr. John Scialli, M.D., testified without

opposition that the dosage—25 milligrams—would have

served as a mild tranquilizer and was far lower than the dos-

age that would be utilized to counteract psychosis (approxi-

mately 625 milligrams).

Accordingly, had Correll’s attorney thoroughly reviewed

Correll’s mental health records, he would have only had cred-

ible evidence for the diagnosis he already suspected: antiso-

cial personality disorder accompanied by mild depression. As

CORRELL v. RYAN 17163

we have previously noted, an antisocial personality disorder

diagnosis may be “potentially more harmful to [a] petitioner

than [helpful].” Gerlaugh v. Stewart, 129 F.3d 1027, 1035

(9th Cir. 1997). We have “agree[d] with the Arizona Supreme

Court that this evidence has obvious countervailing tactical

dangers,” because “[i]n its best possible light, it is a basket of

cobras.” Id. “Accordingly, [in a prior case,] we c[ould] iden-

tify no prejudice flowing from counsel’s failure to develop”

psychiatric testimony relating to a defendant’s antisocial per-

sonality disorder. Id.; see also Darden, 477 U.S. at 186-87

(counsel’s decision not to present character or mental-state

evidence in mitigation was sound trial strategy because the

mitigating evidence would have opened the door to damaging

rebuttal evidence, which included a psychiatric opinion that

the defendant had a sociopathic personality); Clabourne v.

Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (noting that mental

health records omitted from the sentencing hearing “hardly

turned out to be helpful” because they indicated that the

defendant had “an antisocial personality”); Daniels v. Wood-

ford, 428 F.3d 1181, 1204, 1210 (9th Cir. 2005) (indicating

that testimony suggesting that a capital defendant is a “socio-

path” is aggravating rather than mitigating); Caro v. Wood-

ford, 280 F.3d 1247, 1257 (9th Cir. 2002) (concluding that a

psychologist’s testimony did not help the defendant’s mitiga-

tion case because it tended “to paint him as a violent psycho-

path”); Beardslee v. Woodford, 358 F.3d 560, 583 (9th Cir.

2004) (acknowledging that an antisocial personality diagnosis

can be damaging to a capital defendant); Williams v. Calde-

ron, 52 F.3d 1465, 1472 (9th Cir. 1995) (“We have no doubt

that . . . statements [suggesting that the defendant is socio-

pathic] did nothing to advance Williams’s cause.”).

Furthermore, had Correll’s attorney presented Correll’s

mental health records at sentencing, he would have opened

the door for the prosecution to present extremely damaging

rebuttal evidence that would have likely eviscerated the mini-

mal mitigating impact these records carried. The district court

found that, had Correll’s attorney presented mental health evi-

17164 CORRELL v. RYAN

dence, the “highly skilled” prosecutor would have presented

the following evidence that was not already before the sen-

tencing judge:

(i) Petitioner’s rape of a female psychotic patient

while he was undergoing mental health treatment for

his antisocial personality disorder and mild depres-

sion; (ii) Petitioner’s numerous escapes from mental

health treatment facilities and rejections of institu-

tional efforts to provide him with mental health treat-

ment; (iii) Petitioner’s hostage taking and armed

aggression against mental health workers in an

escape attempt from a mental health treatment facil-

ity; (iv) the underlying factual basis of Petitioner’s

prior convictions for armed robbery; . . . (viii) the

conclusion of a social evaluation at age 18 that Peti-

tioner was not a candidate for probation and was a

danger to the community; (ix) additional information

showing the efforts of Petitioner’s parents to deal

with his drug abuse problem and obtain psychologi-

cal treatment for him following his armed threat

against a teacher at school; (x) that Petitioner had no

desire to work but only wished to enjoy himself; and

(xi) Petitioner’s statement that when he committed

the 1978 armed robberies that it gave him a strong

sense of power and excitement.

The district court “credit[ed counsel’s] testimony that the

prosecutor, Sidney Davis, had a reputation for excellent prep-

aration and that she would have left no stone unturned in her

opportunity to rebut any mitigation evidence presented.”

Additionally, presentation of Correll’s antisocial personal-

ity disorder at sentencing would have severely undermined

counsel’s strategy of arguing that Correll merely followed

Nabors’s lead during the crimes. The antisocial personality

diagnosis would have almost certainly prompted the govern-

ment to point out that Correll, at age 18, was the instigator of

CORRELL v. RYAN 17165

an armed robbery in which he enlisted the assistance of his

13-year-old brother and 15-year old girlfriend. See Bonin, 59

F.3d at 836 (finding that the failure to present expert psycho-

logical testimony was not prejudicial because it “would have

distracted jurors from [counsel’s main mitigation] theory and

[other] mitigation evidence, reduced [the defendant’s] credi-

bility with the jury, and opened the door to powerful cross-

examination and rebuttal”); Burger, 483 U.S. at 793 (holding

that a petitioner failed to prove ineffective assistance where

the affidavits detailing the defendant’s behavioral history his

attorney failed to present “are by no means uniformly helpful

to petitioner because they suggest violent tendencies that are

at odds with the defense’s strategy of portraying petitioner’s

actions on the night of the murder as the result of [another

person’s] strong influence upon his will”).

In sum, the psychological evidence, if presented, would

have demonstrated only that Correll has an antisocial person-

ality with mild depression. Evidence of an antisocial personal-

ity would have had tremendous potential to be more harmful

than helpful. In addition, this evidence would have opened the

door for the prosecution to introduce a laundry list of

extremely damaging information not already before the sen-

tencing judge and would have crippled Correll’s chances of

convincing the sentencing judge that he was merely following

Nabors’s lead during the crimes.16 Accordingly, contrary to

16

The majority concludes that “a significant portion of that damaging

rebuttal evidence was already available through the pre-sentence report.”

Maj. Op. at 17150. But, as discussed at length in this dissent, defense

counsel realized the introduction of some potentially mitigating evidence

would open the door to a parade of horribles. For example, while the pre-

sentence report summarily discloses Correll’s conviction of three counts

of armed robbery in 1978, defense counsel understandably wanted to pre-

clude damning rebuttal evidence revealing that Correll enlisted his 13-

year-old younger brother and his 15-year-old girlfriend in the robbery of

the three convenience stores at gunpoint. Furthermore, the pre-sentence

report is silent regarding other extremely damaging information that the

prosecutor would have surely brought to light in rebutting certain poten-

tially mitigating evidence.

17166 CORRELL v. RYAN

the majority’s conclusion, Correll cannot prove a reasonable

probability that he would have received a lesser sentence if

the available psychological evidence had been before the sen-

tencing judge.

C

As to Correll’s drug use, the district court found that there

was no evidence—other than Correll’s self-serving statements

—that Correll was significantly impaired at the time of the

crimes. Arizona law at the time provided that “[a] defendant’s

intoxication or alcoholism at the time of the offense is a miti-

gating circumstance if the evidence shows that it significantly

impaired the defendant’s capacity to appreciate the wrongful-

ness of his conduct or to conform his conduct to the require-

ments of the law.” State v. Zaragoza, 659 P.2d 22, 30 (Ariz.

1983) (emphasis added). The district court found that Cor-

rell’s behavior during the murders indicated he was not intox-

icated:

[I]t was Petitioner who remained calm when the gun

misfired as Nabors was trying to kill Robin Cady. It

was Petitioner who encouraged Nabors to remain

calm as there were no cars coming, to get a shell

chambered and shoot Cady. Such behavior at the

time of the crime does not demonstrate intoxication

and, in fact, undercuts an assertion of intoxication.

See Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004)

(reasoning that there is little basis for believing that drugs

materially affected the defendant’s behavior at the time of the

crimes when the facts of the crimes reflect deliberate and

methodical action).

No witnesses could have testified that Correll was intoxi-

cated during the crimes and only one witness, Correll’s sister,

could have testified that Correll used methamphetamine in the

morning of the day prior to the crime. Correll was not preju-

CORRELL v. RYAN 17167

diced by his sister’s failure to testify, however, because her

testimony, on cross-examination, would have eviscerated any

remaining residual doubt in the sentencing judge’s mind as to

Correll’s guilt. As the district court found, her “testimony

would have totally eliminated any mitigating weight from

Petitioner’s claim of innocence and residual doubt (i.e., the

guilt phase misidentification defense).” She knew Correll was

with Nabors when the crimes occurred and that they had

sought a ride out of the state very soon after the murders

occurred. See Allen, 395 F.3d at 1004 (explaining that “miti-

gation witnesses proffered by [the defendant] would not have

proved helpful given their own involvement in [the defen-

dant]’s criminal enterprise.”); Williams v. Woodford, 384 F.3d

567, 624 (9th Cir. 2004) (“[T]he best thing a capital defendant

can do to improve his chances of receiving a life sentence has

nothing to do with mitigating evidence strictly speaking. The

best thing he can do, all else being equal, is to raise doubt

about his guilt.”).

The only other witness Correll’s postconviction counsel

presented relating to drug use was Dawn Day, who testified

that she used methamphetamine with Correll during a four

month period from November 1982 until February 1983. We

cannot consider Day’s testimony, however, because Correll

failed to establish that Day was available to testify at his sen-

tencing hearing. See Douglas, 316 F.3d at 1086 n. 2 (explain-

ing that testimony presented at a district court evidentiary

hearing that was not available to counsel at the sentencing

hearing may not be considered for prejudice purposes). Fur-

thermore, even had Correll established that Day would been

available, Day’s testimony that Correll used methamphet-

amine more than a year before the crime would have provided

little support for an argument that Correll, at the time of the

crime, was so impaired that he was unable “to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of the law.” Zaragoza, 659 P.2d at 30.

Finally, the district court reasonably declined to credit Cor-

rell’s two drug abuse experts’ opinions on the effects of

17168 CORRELL v. RYAN

severe methamphetamine addiction because these opinions

were not based on an examination of Correll but instead were

based on a hypothetical set of facts provided by Correll’s

postconviction counsel. As the district court explained:

Dr. Sullivan did not examine Petitioner nor did he

look at Petitioner’s Arizona Department of Correc-

tions or CDOC records. Rather, Dr. Sullivan was

asked to assume [a set of] hypothetical facts [that] do

not accurately or reliably portray Petitioner’s alleged

drug abuse. . . . [H]is opinion was based on unsub-

stantiated and unreliable assumptions.

In stark contract to the hypothetical assumptions on which Dr.

Sullivan’s opinion was based, the district court found that

Correll was incarcerated, except for 229 days, during the nine

year period between October 1975 (when Correll was first

incarcerated, at age 14) and March 1984 (the month before

the crime) and that “Petitioner was not a methamphetamine

addict or a long-term abuser of methamphetamine during the

time he was incarcerated.” The district court further

explained:

The Court does not credit Petitioner’s unsubstan-

tiated self-report that he abused methamphetamine

every day before the crimes were committed. Peti-

tioner chose not to testify at the evidentiary hearing;

Petitioner chose not to fully cooperate with [the gov-

ernment’s drug abuse expert’s] examination of him

regarding the issue of drug abuse. Because of the

obvious motive to fabricate, Petitioner’s self-serving

statements about his drug usage prior to the crimes

is [sic] unreliable and subject to searching skepti-

cism. See, e.g., [State v.] Medrano, 914 P.2d [192,]

227 [(Ariz. 1996) (“the defendant provided most of

the information concerning his use of cocaine in the

past and on the night of the murder, as well as the

drug’s effect on him. Because of the obvious motive

CORRELL v. RYAN 17169

to fabricate, such self-serving testimony is subject to

skepticism and may be deemed insufficient to estab-

lish mitigation.”)]; see also Bernard Smith [v. Stew-

art], 140 F.3d [1263,] 1270 [1998] (evaluating

evidence based on impartial sentencing judge apply-

ing Arizona law); see generally, Strickland, 466 U.S.

at 695 (“The assessment of prejudice should proceed

on the assumption that the decision maker is reason-

ably, conscientiously, and impartially applying the

standards that govern the decision.”). The Court’s

searching skepticism toward Petitioner’s self report

is corroborated by Respondent’s drug abuse expert,

Dr. Matthews, who opined as follows: “Antisocial

personality disorder is characterized by malingering

and deceit; instances of [Petitioner’s] lifelong pattern

of deceptiveness abound throughout his penal and

other records. He has been deceitful about a great

many matters, including his history of substance

abuse. Because of [Petitioner’s] history of deceit, it

is a major clinical error to accept [Petitioner’s] self-

serving view of his condition at the time of the

offense as accurate.”

Furthermore, Correll’s other expert witness on drug addic-

tion, Dr. Shaw, whom the majority quotes for the proposition

that Correll “may have been experiencing drug-induced para-

noia” at the time of the murders, Maj. Op. at 17143, was

“thoroughly impeached” at the evidentiary hearing. As the

district court explained, “Dr. Shaw admitted that he only min-

imally considered the facts of the crime before reaching his

conclusion.” The district court found Dr. Shaw’s opinion “en-

tirely not credible and wholly speculative” because it, like Dr.

Sullivan’s opinion, was “based upon hypothetical drug usage

at the time of the crimes that was not established.”

Based on the foregoing, I agree with the district court that,

under the facts of this case, counsel’s failure to present evi-

dence regarding Correll’s drug use—other than counsel’s

17170 CORRELL v. RYAN

statement that Correll had been using alcohol and drugs and

Snelling’s statement that he smelled alcohol on his captor’s

breath—was not prejudicial. I agree with the district court’s

conclusion that if Correll’s attorney had called an expert to

testify, “it is highly likely any lay witness basis for the

expert’s opinion could have been cross-examined at sentenc-

ing and impeached by virtue of the fact that no lay witness

could testify that Petitioner was intoxicated at the time of the

crimes.” I also credit the district court’s observation that “if

an expert had testified based solely on Petitioner’s self-

reporting . . . it is very likely that the expert’s opinion would

have been severely undermined by undisputed evidence that

Petitioner had spent almost 9 of the last 10 years incarcerated

with little or no access to drugs.”17 I accordingly cannot agree

with majority’s conclusion that Correll has met his burden to

prove that, had counsel presented more detailed evidence

about his drug use, he would have received a lesser sentence.

D

Finally, Correll has presented no credible evidence about

his childhood that his attorney could have placed before the

sentencing judge other than the evidence the sentencing judge

already had before him. The district court, who is in the best

position to determine credibility, found Correll’s uncorrobo-

rated allegation that his mother banged his head against a

kitchen table incredible. In regard to the head injury Correll

17

I would further note that a drug defense likely would have evoked less

sympathy from an Arizona sentencing judge 22 years ago than it does

from the court today. See Mayfield v. Woodford, 270 F.3d 915, 931 (9th

Cir. 2001) (crediting testimony that there were “no death penalty cases

tried in San Bernardino County prior to 1983 where a drug defense had

been successful in gaining either an acquittal or in reducing the sentence

from death to life without parole.”). The sentencing judge likely would

have taken note of the fact that Correll never sought treatment for his sub-

stance abuse problem and repeatedly secured his removal from the mental

health programs in which he was placed either by escaping or by violently

assaulting the staff.

CORRELL v. RYAN 17171

suffered at age seven when a cinder block wall fell on him,

the district court expressly found that Correll’s parents were

not negligent in securing medical care. Based on the medical

records presented at the evidentiary hearing, the district court

found that Correll’s parents took him to the family doctor the

day the accident occurred and “acted reasonably in caring for

Petitioner, which included two visits to their family doctor,

one emergency room visit and a follow-up visit for additional

specialized testing.”

The remaining family history evidence the majority cites

comes from Reverend Curry, whom the district court found

“was not an available witness” for counsel at the time of the

sentencing hearing. The district court found “that if [Reverend

Curry] had been contacted by [counsel] prior to sentencing, he

would have informed him that he would not discuss informa-

tion about Petitioner or appear at sentencing because it was

against California law for him to discuss former residents of

the CYA.”18 Accordingly, Reverend Curry’s testimony cannot

factor into the prejudice analysis. See Douglas, 316 F.3d at

1086 (explaining that testimony presented at a district court

evidentiary hearing that was not available to counsel at the

sentencing hearing may not be considered for prejudice pur-

poses).

The district court further found that had counsel empha-

sized Correll’s parents’ use of corporal punishment, the prose-

18

While the majority quotes Reverend Curry’s testimony that he “would

have unhesitatingly come to help” Correll, see Maj. Op. at 17137 n.3, I

credit the district court’s finding that at the time of the sentencing hearing

he was unavailable to help. Reverend Curry testified that he “cannot offer

testimony or assertions regarding people who have been in California

Youth Authority [because] [i]t is forbidden by law.” Reverend Curry testi-

fied that others “may contact me,” but he “could not make contact with”

counsel and when he “talked with [his] supervisors about it, . . . they said

no.” Furthermore, defense counsel testified that when he contacted Rever-

end Curry’s wife, she informed him that the Reverend “didn’t really want

to be involved.”

17172 CORRELL v. RYAN

cution would have countered with evidence that Correll’s

parents took him to a private psychologist and participated in

a six-month treatment program with him after he was expelled

from eighth grade for threatening a teacher with a knife. The

prosecution likely also would have presented evidence that

Correll had repeatedly molested his sister. Accordingly, on

balance, presentation of family history evidence would have

been counterproductive. I cannot agree with the majority’s

conclusion that Correll has met his burden to prove that, had

counsel presented more detailed evidence about his child-

hood, he would have received a lesser sentence.

III

The sum of the majority’s analysis in this case simply evis-

cerates the requirement that a habeas petitioner prove preju-

dice in order to prevail on a claim for ineffective assistance

of counsel. Not satisfied with merely reconstructing the facts,

the majority also reinvents Supreme Court authority, asserting

that the mitigating evidence in this case “is clearly sufficient

to establish prejudice under the Supreme Court’s standard in

Wiggins, 539 U.S. at 534-38.” Maj. Op. at 17143. This state-

ment, of course, is patently absurd, as even a cursory review

of the facts in Wiggins reveals that Correll fell drastically

short of carrying the demanding burden of proving actual

prejudice the Supreme Court found sufficient in that case.

In Wiggins, the petitioner “experienced severe privation

and abuse in the first six years of his life while in the custody

of his alcoholic, absentee mother,” suffered “physical tor-

ment, sexual molestation, and repeated rape” during his sub-

sequent years in foster care, and spent time homeless. Id. at

512. Perhaps most crucial, the petitioner in Wiggins was men-

tally retarded. Id.

Correll’s new evidence, which reveals that he is “a highly

functioning adult,” comes nowhere close to the “powerful

mitigating narrative” present in Wiggins. Id. at 513. In fact,

CORRELL v. RYAN 17173

the district judge, who is in the best position to evaluate the

evidence, concluded that, when one considers both the posi-

tive and negative repercussions of Correll’s new evidence, the

balance of aggravation and mitigation “has barely been

altered.” By holding that the mitigating evidence in this case

is clearly sufficient to establish prejudice under Wiggins, the

majority essentially writes the prejudice requirement out of

our circuit jurisprudence.

I respectfully dissent.