Appendix — Schriro v. Correll (No. 08-430)
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Suprpme Court US.
~ 08-430 AUG 1 2 ong
No. OFFICE OF THE CLERK
1s)
IN THE
SUPREME COURT OF THE UNITED STATES
DORA B. SCHRIRO, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTIONS,
Petitioner,
VS.
MICHAEL EMERSON CORRELL,
Respondent.
APPENDIX
On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
TERRY GODDARD
Attorney General
Mary R. O’GRADY
Solicitor General
KENT E. CATTANI
Chief Counsel
Capital Litigation Section
J. D. NIELSEN
Assistant Attorney General
(Attorney of Record)
Capital Litigation Section
1275 W. Washington
Phoenix, Arizona 85007
Telephone: (602) 542-4686
A-l
APPENDIX A
Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS,
FOR THE NINTH CIRCUIT.
Michael Emerson Correll, )
Petitioner-Appellant, ) No. 03-99006.
)
v. ) D.C. No.
) CV-87-01471-
) PHX-SMM
Charles L. RYAN, Warden, )
Acting Director, Arizona ) ORDER AND
Department of Corrections, ) AMENDED
Dora B. Schriro, Director, ) OPINION AND
Respondent-Appellee. ) AMENDED
) DISSENT
)
Appeal from the United States District Court
For the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
Sept. 26, 2005—San Francisco, California
Filed May 14, 2008.
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain
and:
Sidney R. Thomas, Circuit Judges
"
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Opinion by Judge Thomas
Dissent by Judge O’Scannlain
COUNSEL
Thomas Phalen and Jon M. Sands, Phoenix, Arizona,
for the appellant.
James P. Beene, Kent E. Cattani, and Terry Goddard,
Phoenix, AZ, for the appellee.
ORDER
In response to the petition for rehearing, the
panel has elected to file an amended opinion and
amended dissent. The amended opinion and dissent
are filed concomitantly herewith. With the filing of the
amended opinion and dissent, Judges Schroeder and
Thomas voted to deny the petition for rehearing and
rehearing en banc. Judge O’Scannlain voted to grant
the petition for rehearing and rehearing en banc.
The full court was advised of the petition for
rehearing en banc. A judge requested a vote on
whether to rehear the matter en banc. The matter
failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc
consideration. Fed. R.App. P. 35.
The petition for rehearing and rehearing en banc
is DENIED. The Court will entertain a further petition
for rehearing and rehearing en banc as to the
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amendments made to the opinion. See Ninth Circuit
General Order 5.3(a).
All pending motions are DENIED.
Judge CALLAHAN’S dissent from rehearing en banc
follows:
CALLAHAN, Circuit Judge, with whom KOZINSKI,
Chief Judge, and O'SCANNLAIN, KLEINFELD,
TALLMAN, and BEA, Circuit Judges, join, in
dissenting from the denial of rehearing en banc:
I respectfully dissent from our denial of
rehearing en banc because the panel majority fails to
give deference to the district court's factual findings as
required by Hovey v. Ayers, 458 F.3d 892, 900 (9th
Cir.2006), and improperly interprets the test for
ineffective assistance of counsel set forth in Strickland
v. Washington, 466 U.S. 668 (1984), so as to create an
almost irrebutable presumption of prejudice.
Over twenty years ago, Michael Correll was
convicted of three counts of first-degree murder, with
four aggravating circumstances, and sentenced to
death. State v. Correll, 148 Ariz. 468, 471, 478-81
(1986). The Arizona Supreme Court affirmed the
convictions, three of the aggravating circumstances,
and the sentence. Jd. at 485. In his federal habeas
petition Correll contends that he was denied the
effective assistance of counsel at trial as guaranteed by
the Sixth Amendment. On remand from this court, the
district court conducted a nine-day evidentiary
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hearing. The district court concluded that although the
performance of Correll’s attorney at sentencing was
deficient, Correll was not prejudiced.
The panel majority’s opinion reweighs the
evidence before the district court and reverses its
conclusion by ignoring the district court's factual
findings as well as the second prong
of the Strickland test for ineffective assistance of
counsel. The majority opinion collapses the two
Strickland prongs into one prong. The opinion implies
that if counsel] makes a strategic decision not to
investigate or present what it calls “classic mitigating
circumstances” that would nonetheless open the door
to more damaging aggravating evidence, prejudice will
be presumed. It compounds this mistake by failing to
appreciate that in this case even if a presumption of
prejudice arises, the presumption was, as the district
court found, rebutted. Moreover, if the facts in this
case do not rebut the majority's presumption of
prejudice, the presumption in effect becomes
irrebutable. For these reasons, I dissent from our
decision not to rehear this matter en banc.
I
Although it is not clear from the panei majority
opinion, the district court in its 109-page opinion found
that trial counsel’s performance had been deficient on
only two matters. First, the district court held:
Notwithstanding Strick/and’s recognition
that defense counsel’s duty to investigate,
develop and present mitigating evidence
A-S
can be reasonably based on a judge's
sentencing tendencies, the Court
reluctantly and narrowly concludes that
[counsel's } performance was deficient
because he failed to review Petitioner's
mental health records ... before making
sentencing strategy decisions.
Second, the district court again narrowly concluded
that given the overwhelming aggravating
circumstances that Correll faced, counsel “should have
obtained the medical treatment records” concerning
Correll’s head injury when a wall fell on him when he
was seven years old.
The district court, however, rejected a number of
other challenges to the attorney's performance. For
example, the district court noted:
The Court specifically finds that
[counsel] did maintain regular contact
with Petitioner prior to sentencing and
. rejects Petitioner's allegation that
[counsel] only spent five minutes with
him between conviction and sentence....
Petitioner did provide names of persons
for [counsel] to contact prior to
sentencing, including Susan Curry.
[Counsel] followed-up and interviewed
or tried to interview the persons
Petitioner suggested.... The witnesses
were not able to provide relevant useful
mitigation information. In fact, in many
instances, the witnesses only provided
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inculpatory and non-mitigating
information.
(Emphasis in original.) The district court rejected the
contention that counsel had improperly failed to
present mitigating evidence concerning drug use. It
also found that counsel's performance was not deficient
in failing to present expert testimony on
methamphetamine intoxication at the time of the crime
because “there was no lay witness testimony to support
Petitioner's intoxication at the time of the crimes.” In
addition, the district court rejected challenges to
counsel's limited investigation of Correll's family
background. It concluded that information concerning
incest in the family was not available to counsel
because neither Correll nor any of the family members
that counsel interviewed provided him with any
information. The district court also concluded that
counsel “was not deficient in failing to present evidence
corroborating the child abuse allegations because such
corroborating testimony was not reasonably available
to, and thus could not have been obtained by [counsel]
at sentencing.” As to the charge that Correll suffered
from his mother's religious fanaticism, the district
court concluded that counsel had the available
information regarding Petitioner's mother being a
Jehovah's Witness, but reasonably chose to present
such evidence as an abandonment issue.
Thus, as indicated by Judge O’Scannlain’s
dissent, a review of the district court's 109-page
memorandum of decision and order, although
confirming that counsel provided deficient
representation when he failed to seek documents
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relating to Correll’s mental health and medical
conditions, also shows that counsel's efforts on behalf
of his client were considerably more nuanced than
imphed by the panel majority.
II
The panel majority alleges that defense counsel
basically abandoned his client at sentencing because
Arizona law, as it then existed, mandated the death
penalty when a defendant had a qualifying prior
conviction, and there was no mitigating evidence.
Indeed, this would be a much easier case if this
assertion were true. However, it misstates the law ina
critical manner, and implies the existence of clearly
mitigating evidence where no clearly mitigating
evidence exists.
The Arizona Supreme Court affirmed Correll’s
conviction, the presence of three aggravating
circumstances, and his sentence.! The Arizona
Supreme Court did not find that counsel had
abandoned Correll. Rather it held:
The trial court found no mitigating
circumstances which called for leniency.
Defendant offered five mitigating
circumstances: upbringing, cooperation
in preparation of the pre-sentence
report, psychological problems such
1 It should be noted that the majority does not suggest that any
investigation or effort by counsel] could have prevented the Arizona
courts’ finding three aggravating factors.
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that he did not understand the
wrongfulness of his conduct, his minor
participation in the murders, and age.
A.R.S. § 13-703(G) provides that any
relevant mitigating circumstance
proffered must be considered in
determining whether to impose the
death penalty. We find that none of
these factors, alone or in combination,
are sufficiently substantial to call for
leniency.
State v. Correll, 148 Ariz. at 482. Later in its opinion,
after affirming the existence of three aggravating
factors, the Arizona’ Supreme Court noted that it had
“also considered the mitigating circumstances offered
by defendant, andl ] concludeld] that even in
combination the mitigating circumstances are not
sufficiently substantial to call for leniency.” Jd. at 483.
Thus, it appears that Arizona law did not mandate the
death penalty, but required that the courts determine
whether there were factors that were “sufficient to call
for leniency.” Furthermore, the Arizona Supreme
Court's opinion rebuts the panel majority's suggestion
that counsel had abandoned Correll at the sentencing
hearing.
In addition, much of the majority's criticism of
counsel’s performance fails to recognize the critical
difference between raising reasonable doubt as to the
prosecutor's case for the death penalty and presenting
affirmative evidence of mitigating circumstances. In
Williams v. Woodford, 384 F.3d 567 (9th Cir.2004), we
recognized the validity of the lingering-doubt defense
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at the penalty phase, particularly as it “did not require
introduction of mitigating evidence that would open
the door to damaging rebuttal evidence.” Jd. at 624. We
wrote.
based upon our review of the reasons underlying
[counsel's] penalty-phase strategy, we cannot
fault [counsel’s} sound tactical decision to
present a lingering-doubt defense in lieu of a
defense based upon mitigating evidence of
Williams’s family and life history, drug use, or
mental state. We note in this regard that the
defense of “ ‘residual doubt has been recognized
as an extremely effective argument for
defendants in capital cases.’ ” Lockhart v.
McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 90
L.Ed.2d 137 (1986) (quoting Grigsby v. Mabry,
758 F.2d 226, 248 (8th Cir.1985) (en banc)
(Gibson, J., dissenting)). A comprehensive study
on the opinions of jurors in capital cases
concluded:
‘Residual doubt’ over the defendant's
guilt is the most powerful “mitigating
fact.” ... [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.
Stephen P. Garvey, Aggravation and Mitigation
in Capital Cases: What Do Jurors Think?, 98
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Colum. L.Rev. 1538, 1563 (1998) (footnote
omitted); accord William S. Geimer & Jonathan
Amsterdam, Why Jurors Vote Life or Death:
Operative Factors in Ten Florida Death Penalty
Cases, 15 Am. J.Crim. L. 1, 28 (1988) (“The
existence of some degree of doubt about the guilt
of the accused was the most often recurring
explanatory factor in the life recommendation
cases studied.”).
Williams, 384 F.3d at 624.
Here counsel represented a client who insisted
on his innocence.2 Under such circumstances, a
lingering-doubt defense was not only reasonable, but in
light of then existing Arizona law and the double-edged
nature of the so-called “classic mitigating evidence,”
perhaps the only reasonable approach available.
Ill
It follows that because Arizona law did not
mandate the entry of the death penalty and counsel did
not abandon Correll, the second prong of the Strickland
test for ineffective assistance of counsel cannot be
2 The district court noted:
Based on Petitioner's continuing claim of
innocence and Petitioner's failure to prove
otherwise, the Court concludes that Petitioner did
not discuss or attempt to help [counsel] prove that
he was intoxicated when he committed the crime
or that his condition at that time of the crimes
would mitigate his sentence.
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presumed. Indeed, the purposes of the district court’s
nine-day evidentiary hearing was to determine
whether the evidence that counsel failed to discover
could possibly have been “sufficiently substantive to
call for leniency.” What the district court found, and
the majority does not really dispute, is that there was
no evidence that might humanize Correll or portray
Correll as sympathetic. Rather, the evidence
concerning Correll’s sociopathic or antisocial
personality disorder, drug use, and troubled family was
double-edged. Although the evidence might offer some
explanation for Correll’s criminal acts, the evidence
would also shed light on his prior criminal acts, violent
tendencies, and unremorseful attitude. The Supreme
Court has held that evidence of a troubled upbringing
and mental issues can be mitigating. See Rompilla v.
Beard, 545 U.S. 374, 392-93 (2005); Wiggins v. Smith,
539 U.S. 510, 534-35 (2003). However, such evidence is
also recognized to be double-edged, and it can be a
reasonable strategic choice not to present such
evidence. Williams, 384 F.3d at 619-20.3 This case
3In Williams, we stated:
The Supreme Court and this court have
consistently held that counsel's performance is not
deficient for the failure to present evidence in
mitigation at the penalty phase when counsel's
decision is based upon a reasonable tactical
determination that the mitigating evidence would
allow for the introduction of rebuttal evidence
‘that might be literally fatal.’ Burger [ v. Kemp J,
483 U.S. [776,} at 791-94, 107 S.Ct. 3114 [(1987)]
(counsel's failure to present any mitigating
evidence, including the defendant’s own testimony
or the testimony of the defendant's mother that he
(Continued)
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requires a determination of whether the mitigating
evidence could have been sufficiently substantial to call
for leniency. In other words, whether there is “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at
694.
This question must be asked in the context of
Arizona law as it then existed. When Correll was tried,
the death penalty was not the province of a jury, but
the responsibility of the trial judge and the Arizona
Supreme Court. Accordingly, the inquiry is not
whether a juror might possibly have been moved to
alter his or her view of the case, but whether there is a
reasonable possibility that any of the mitigating
evidence would have changed the trial judge’s or the
Arizona Supreme Court’s positions.
IV
By not asking this question, the panel majority
fails to appreciate that Correll has not, and cannot,
meet the second prong of the Strick/and test for
ineffective assistance of counsel. Instead the majority
(Continued).
had an exceptionally unhappy and physically
abusive childhood. or the expert testimony of a
psychologist, was reasonable professional
judgment because the testimony would risk
bringing before the jury evidence of the
defendant's unremorseful attitude, violent
tendencies, and prior criminal acts). ~~
384 F.3d at 619-20
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(a) improperly substitutes its view of the evidence for
the district court's findings, (b) fails to appreciate
Arizona’s death penalty provisions that were in
existence when Correll was tried, and (c) ignores the
fact that presentation of the alleged “classic mitigating
evidence” would have opened the door. to
overwhelmingly damaging rebuttal evidence.
A. The panel majority’s improper substitution of
its independent analysis of the record is well presented
in Judge O’Scannlain’s dissent; however, its treatment
of two issues—Correll's alleged brain injury and the
allegation that he was under the influence of drugs at
the time of the crimes— illustrates the extent to which
the majority's conclusions differ from the evidence in
the record and the district court's perspective.
Addressing Correll’s alleged brain injury, the
pane] stated:
When Correll was seven, a brick wall
collapsed on his head. Although he
was unconscious for some time after
the accident, 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.
The district court, however, made the following
findings: :
Petitioner received a head injury on
April 8, 1967, when he was 7, at
which time his parents took him to
see their family doctor. Four days
later, Petitioner was vomiting and
again taken to the family doctor
where an X-ray was taken and an
EEG scheduled. On April 14, 1967, an
EEG was done. On April 15, in
response to more vomiting,
Petitioner’s parents took him to the
emergency room at Children's
Hospital of Los Angeles. At the
hospital, he was seen by a treating
physician, who diagnosed a subgaleal
hematoma, which is a bruise or
collection of blood under the scalp, but
above the skull. The treating
physician recommended a
neurosurgery consultation, which was
done. The doctor in the neurosurgery
clinic also diagnosed Petitioner with a
subgaleal hematoma. On May 3, 1967,
Petitioner was brought back to the
neurosurgery clinic for a follow-up
visit. The follow-up visit noted that
Petitioner's hematoma cleared in 5
days and that Petitioner was alert and
well.
In addition, the record indicates that when
Correll was examined by experts around 2000, his
brain functioned at a high level, although there was
_ .
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some evidence of impairment in the prefrontal lobe.*
Also, there was little in the record to connect the
alleged impairment in 2000 to the 1967 accident. The
district court, having had the benefit of hearing from
both parties’ neuropsychologists, concluded that
Correll did not suffer any brain injury from the 1967
accident.
The majority, however, chastises the district
court for making such a finding asserting that it should
“have decided only whether there existed a ‘reasonable
probability’ that ‘an objective fact-finder’ in a state
sentencing hearing would have cencluded that Correll
had a brain injury that impaired his judgment at the
time of the crimes.” But the majority's correction of the
standard cannot change the fact that the district court
determined that there was no reasonable probability
that a fact-finder would find that Correll had a brain
injury that impaired his judgment, and that the
majority, rather than defer to this reasonable
perspective, improperly substitutes its view of the
record for that of the district court.
The majority’s myopic view of the record also
allows it to conclude that “the evidence of Correll’s
methamphetamine use on the night of the crimes, had
it been fully presented, could have risen to the level of
a statutory mitigator.” The majority states that there
4 The district court noted that Dr. Martell, a neuropsychologist,
testified that this mild impairment did not “have a lot of import for
[Correll’s] everyday behavior” and that “of all the capital
defendants he has tested, [Correll] is one of the highest
functioning defendants.”
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was undisputed evidence induced that Correll was
addicted to methamphetamine and had used it on the
day of the crime, and further relies on expert testimony
“that gross methamphetamine intoxication, unlike
gross alcohol intoxication, is not necessarily apparent
to outside observers.”
The majority’s conclusion cannot be reconciled
with Arizona law at the time of the crimes and the
evidence in the record. As noted by Judge O’Scannlain,
Arizona law provided “[a] defendant’s intoxication or
alcoholism at the time of the offense is a mitigating
circumstance if the evidence shows that it significantly
impaired the defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct
to the requirements of the law.” State v. Zaragoza, 135
Ariz. 63, 659 P.2d 22, 30 (Ariz.1983) (emphasis added).
The district court, after holding a nine-day
evidentiary hearing, found:
* due to Correll’s continued maintenance
of his innocence, Correll did not discuss
his mental state with counsel and did not
attempt to help counsel prove that he was
intoxicated when he committed the
crimes;
* counsel interviewed the persons Correll
indicated he was with prior to when the
crimes were committed and they did not
indicate that he was grossly intoxicated
by alcohol abuse or drug abuse on the day
of the crimes, but did indicate that
Correll had been using
methamphetamine prior to the day the
crimes were committed;
* “none of the witnesses could have
testified that they observed Petitioner
injecting methamphetamine in close
proximity to the time the crimes
occurred” ;5
* the first thing that Correll and Nabors
asked Snelling when they gained entry
into his trailer home was whether he had
any speed;
* Correll had spent the vast majority of
5 The district court noted that at the evidentiary hearing,
Robin Correll, petitioner's sister, testified that on the
morning before the crimes she witnessed Correll inject
some amount of methamphetamine. However, Robin did
not testify at the trial. The district court explained:
Had Robin testified about Petitioner's use of
methamphetamine the day prior to the crimes,
she could have been cross-examined about her
knowledge of Petitioner's whereabouts at the time
of the crimes. Had Robin testified concerning
Petitioner's conversations about his need to leave
town quickly, she would have disclosed that
Petitioner was with John Nabors and had wanted
an immediate ride out-of-state very soon after the
murders occurred. Such testimony would have
totally eliminated any mitigating weight from
Petitioner’s claim of innocence and residual doubt
(i.e., the guilt phase misidentification defense).
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his life incarcerated in prison where his
access to drugs was limited: ©
* Correll’s self-reporting of drug use was
severely limited due to the lack of
corroboration; 7
* Correll’s expert's testimony was
“thoroughly impeached” because he
admitted that he only minimally
considered the facts of the crimes before
reaching his conclusion, he admitted that
the facts did not necessary establish that
Correll had prominent hallucinations or
delusions, and the facts of the crimes
show that Correll “was involved in
deliberate acts, planning, conspiring,
avoiding detection, awareness of
wrongdoing, and that he was oriented to
6 The district court noted that except for 229 days, Correll
had been incarcerated for the 9-year period between
October 1975 and March 1984, a month before the crimes.
7 The district court concluded:
The court does not credit Petitioner's
unsubstantiated self-report that he abused
methamphetamine every day before the crimes
were committed. Petitioner chose not to testify at
the evidentiary hearing; Petitioner chose not to
fully cooperate with Dr. Matthews's examination
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 unreliable and subject to searching
skepticism.
de
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time, place and reality.”
* the determination by Arizona's expert
in addiction that Correll was not in a
substance abuse psychosis was credible
because “he utilized the facts of the case
to support his opinion and tied his
opinion to the facts of the case;”
* “the evidence shows that it 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.”
Accordingly, the majority’s assertions that there
is a reasonable probability that a fact-finder could have
found that Correll had a brain injury or that he was
intoxicated by drugs at the time of the crimes are not
supported by the record. More importantly, the
majority's reweighing of the evidence violates our
established law of deferring to the district court's
findings. Hovey, 458 F.3d at 900 (“[Flactual findings
made by the district court are reviewed under the
‘significantly deferential’ clearly erroneous standard, in
which we accept the district court's findings of fact
absent a ‘definite and firm conviction that a mistake
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has been committed.’ ”) (citations omitted).®
Here, the district court held a _ nine-day
evidentiary hearing and made detailed findings of fact
on remand from this court. We abuse our role as an
appellate court when we cavalierly ignore the findings
that a district court makes on remand. Again, the
question is not whether reasonable minds might differ,
but whether a review of the record creates “a definite
and firm conviction that a mistake has been
committed.” The majority, in pursuing “some
mitigating evidencel[that] could have spared Correll’s
life,” fails to appreciate-as it is required to-that the
district court's contrary position is reasonable and
entitled to deference.
8 Our deference to the district court's factual findings did not arise
in Hovey, 458 F.3d at 900, but is of a longstanding principle of
habeas review. See Silva v. Woodward, 279 F.3d 825, 835 (9th Cir.
2002) (“[Ol]ur review for clear error is ‘significantly deferential,’ in
that we must accept the district court's factual findings absent a
‘definite and firm conviction that a mistake has been
committed.”); United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (“Clearly erroneous review is ‘significantly deferential,’
requiring that the appellate court accept the district court’s
findings absent a ‘definite and firm conviction that a mistake has
been committed.”); McMillan v. United States, 112 F.3d 1040,
1044 (9th Cir. 1997) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Construction Laborers Pension Trust, 508 U.S. 602 ... (1993).).
° In Hayes v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002),
we noted that “[t]o be clearly erroneous, a decision must strike us
as more than just maybe or probably wrong: it must, as one
member of this court recently stated during oral argument, strike
us as wrong with the force of a five-week-old, unrefrigerated dead
fish.” (internal quotation omitted).
A-2]
B. Aithough counsel’s decision not to investigate
Correll's medical and psychiatric records fell below an
acceptable level of competence, his underlying reasons
may be relevant to a determination of whether the
failure to investigate was prejudicial. The district court
explained defense counsel's perspective as follows:
[Counsel] estimated that Petitioner had
one chance in twenty for a life sentence
if he did not present the psychological
diagnosis but only one chance in fifty if
he presented Petitioner's psychological
diagnosis to Judge Howe [the trial
judge].... 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 Gary
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....
[Counsell concluded that any
psychological diagnosis of Petitioner
could not be presented and argued
without producing witnesses and other
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evidence that might destroy any
residual doubt arising from the
presentation of his misidentification
defense at trial and the mitigation
theory [counsel] intended to present
regarding Petitioner being only a
follower in the drug mishap and not the
trigger-man.
The district court further explained:
[Counsel] acknowledged that Judge
Howe would consider and give effect to
constitutionally relevant mental health
evidence, but believed that once Judge
Howe knew Petitioner's diagnosis, he
would find it easier not to show
sympathy and sentence him to death....
Likewise, [counsel] did not believe that
Judge Howe would give substantial
mitigating weight to antisocial
personality disorder evidence. ... On the
other hand, [counsel] did believe that
there was some possibility that Judge
Howe might give Petitioner a break for
not being the trigger-man in the
murders.
Although the panel majority opines that defense
counsel “was afraid of the sentencing judge,” a review
of the record indicates that counsel’s evaluation of
Judge Howe’s outlook was probably accurate and
definitely reasonable. Furthermore, the panel
majority's criticism of counsel’s focus on Judge Howe
A-23
ignores that under existing Arizona law, it was Judge
Howe who was responsible for sentencing Correll. If
Judge Howe imposed the death sentence, the Arizona
Supreme Court would review that decision. However, if
Judge Howe had declined to impose the death
sentence, it is doubtful that Arizona or the Arizona
Supreme Court could have, or would have, sought to
change that decision.'’
C. Perhaps the most critical factor, which is not
really denied by the majority, is that the introduction
of the “classic mitigating circumstances” would open
the door to the admission of overwhelming negative
evidence. The district court explained:
Although the Court has attempted to
recount the mitigation evidence
presented at Petitioner’s evidentiary
hearing in detail, the bottom line is clear:
10 The majority dismisses counsel's perspective concerning Judge
Howe by labeling it a presumption that “the judge would not follow
the law.” The district court, however, specifically rejected the
suggestion that Judge Howe would not follow the law. Rather,
counsel thought that if Judge Howe found out that Correll was a
sociopath or psychopath, he was more likely to sentence him to
death. The district court found counsel’s perspective to be credible.
Moreover, Judge Howe’s alleged perspective does not appear to be
either irrational or illegal. In Strickland, the Supreme Court
recognized that the trial judge’s known views could be considered
by counsel. 468 U.S. at 699. The trial judge’s views were
particularly important in Correll’s case as three aggravating
circumstances were established beyond dispute and a life sentence
depended on Judge Howe finding sufficient mitigating
circumstances to warrant leniency.
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a strategy of presenting Petitioner’s
emotional and mental problems, his
condition at the time of the crime, or as a
victim of an abusive and _ tragic
upbringing, would have required the
following additional disclosures of facts,
none of which are “mitigating:” (i)
Petitioner’s rape of a female psychotic
patient while he was undergoing mental
health treatment for his antisocial
personality disorder and mild depression
...) (ii) Petitioner’s numerous escapes from
mental health treatment facilities and
rejections of institutional efforts to
provide him with mental health
treatment ...; (iii) Petitioner’s hostage
taking and armed aggression against
mental health workers in an escape
attempt from a mental health treatment
facility ...; (iv) the underlying factual
basis of Petitioner’s prior conviction for
armed robbery ...; (v) the revelation that,
shortly after the murders were
committed, Petitioner and Nabors woke
up Robin Correll and informed her that
they needed a ride out-of-state night away
... (vd Petitioner’s lack of effort to seek
any type of treatment for his substance
abuse problem ...; (vii) Petitioner’s acts of
regularly molesting his sister Robin ...;
(viii) the conclusion of the social
evaluation at age 18 that Petitioner was
not a candidate for probation and was a
danger to the community ...; (ix)
A-25
additional information showing the
efforts of Petitioner's parents to deal with
his drug abuse problem and obtain
psychological 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 also agreed with counsel that the
prosecutor “had a reputation of excellent preparation
and that she would have left no stone unturned in her
opportunity to rebut any mitigation evidence
presented.”
The panel majority seeks to minimize the
negative impact of this evidence by suggesting that a
“significant portion” of the “damaging rebuttal
evidence was already available through the pre-
sentence report.” This is a misleading overstatement.
Such facts as Correll’s molestation of his sister, his use
of minors to facilitate armed robberies, and his rape of
a psychotic female patient were not set forth in the
pre-sentence report. Moreover, as has already been
noted, there is a world of difference between raising
questions as to the sufficiency of the State’s
presentation and introducing “mitigating evidence that
would open the door to damaging rebuttal evidence.”
Williams, 384 F.3d at 624.
Regardless of how much of the negative evidence
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was already before the trial court, the inquiry remains
whether further presentation of the evidence would
have been substantial enough to mitigate a death
sentence.!! The majority does not really take issue with
the district court's determination that Correll. at most,
had an antisocial] personality disorder, and that there
was “insufficient evidence to support that [Correll] has
ever suffered from any major mental illness, whether
PTSD, a major depressive disorder, or a bipolar
disorder.” Instead, the panel majority opines that the
damaging rebuttal evidence “could, in the hands of a
competent attorney, have been used to support
Correll’s claims of dysfunctional upbringing and
continuing mental disorder.” This may be true in the
abstract, but in light of the horrific nature of the
crimes, Correll’s defense of innocence, the extant
standard for the imposition of the death penalty, and
the damaging rebuttal evidence, the majority engages
in wishful thinking.
Here we are concerned with the possible impact
of damaging rebuttal evidence on Judge Howe and the
Arizona Supreme Court. The district court properly
noted that the standard is high:
Based on both the horrific facts
surrounding these murders and
[Correll's] prior criminal! history, this is
the type of case that demands powerful
1! Tronically, the panel majority's suggestion that the evidence was
in the pre-sentence report would appear to weigh against its
conclusion that the presentation of the evidence would have made
a difference.
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mitigation before it may be said that
confidence in the outcome at sentencing
has been undermined. See Bonin v.
Calderon, 59 F.3d 815, 836 (9th Cir.
1995); see also Gerlaugh v. Stewart, 129
F.3d 1027, 1042-43 (9th Cir. 1997)
(horrific crime facts require substantial
mitigation before it may be said that
the balance of aggravating factors did
not warrant death); Campbell lv.
Kincheloe], 829 F.2d [1453,] 1464 [(9th
Cir. 1987)] (overwhelming aggravating
factors and the heinous nature of the
crime required more than insubstantial
mitigation to establish prejudice).
Also, Arizona argues that under Arizona law:
Correll’s personality disorder, his alleged
drug addiction, his past psychological and
medical history, and his dysfunctional
family, as non-statutory mitigators, are
not entitled to any significant mitigating
weight, because Correll failed to
demonstrate any causal nexus between
these mitigators and the crimes he
committed. [State] v. Murdaugh, 209
Ariz. 19, 35, 97 P.3d 844 ... (2004) (drug
impairment, personality disorder, and
paranoia not entitled to significant
mitigating weight because there was no
proven causal nexus between them and
the defendant's crimes); [State] v.
Hoskins, 199 Ariz. 127, 151-53, 14 P.3d
S .
A-28
997 ... (2000) (antisocial or borderline
personality disorder, and dysfunctional
family, not mitigating in absence of
causal link to crime.).
Furthermore, even the panel majority does not
question that the state proved three aggravating
factors. In light of the horrific nature of the murders,
the reasonably perceived nature of the trial judge's
jurisprudence. and the incredibly damaging nature of
some of the rebuttal evidence, it is not reasonable to
conclude that the admission of the evidence would have
had any mitigating impact on either Judge Howe or the
Arizona Supreme Court.
V
This case presents an imstance in which
counsel’s instinct that an investigation into Correll’s
medical and mental history would not yield any
positive evidence, although an unacceptable reason for
not conducting an investigation, turns out after 17
years, a full investigation, and a 9-day evidentiary
hearing, to have been correct. The panel majority does
not really deny that there is no positive evidence, but
argues that evidence concerning Correll's alleged brain
damage, sociopathic or antisocial personality disorder,
drug use, and troubled family, constitute “classic
mitigating circumstances.” The second prong of the
Strickland test, however, does not call for an abstract
analysis of what might be mitigating evidence, but a
determination of whether there is “a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
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different.” Strickland, 466 U.S. at 694.
The Supreme Court reiterated this standard in
Woodford v. Visciotti, 537 U.S. 19, 22, 123 S.Ct. 357,
154 L.Ed.2d 279 (2002), when it reversed this court for
failing to defer to the California Supreme Court's
determination that trial counsel's inadequacy was not
prejudicial.': Moreover, in A//en v. Woodford, 395 F.3d
12 The Supreme Court's description of the California Supreme
Court’s determination — that it held we had improperly failed to
accept — bears an uncanny resemblance to the district court’s
determination in this case. The Supreme Court noted:
The California Supreme Court concluded that despite
the failure to present evidence of respondent's
“troubled family background,” which included his
being “berated,” being “markedly lacking in self-
esteem and depressed,” having been “born with club
feet,” having “feelings of inadequacy, incompetence,
inferiority,” and the like, moving “20 times” while he
was growing up, and possibly suffering a “seizure
disorder,” the aggravating factors were overwhelming.
In the state court’s judgment, the circumstances of the
crime (a cold-blooded execution:style killing of one
victim and attempted execution-style killing of
another, both during the course of a preplanned armed
robbery) coupled with the aggravating evidence of
prior offenses (the knifing of one man, and the
stabbing of a pregnant woman as she lay in bed trying
to protect her unborn baby) was devastating. The
California Supreme Court found these aggravating
factors to be so severe that it concluded respondent
suffered no prejudice from trial counsel’s (assumed)
inadequacy.
Woodford, 537 U.S. at 26 (citations omitted).
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979 (9th Cir.2005), we first found that “counsel’s
failure to prepare for the sentencing phase until a
week before that phase began, and his resulting failure
to thoroughly investigate and present Allen’s
mitigation case, was constitutionally deficient,” zd. at
1002, but denied relief because we could not “conclude
that there is a reasonable probability, had trial counsel
presented the potential mitigation evidence developed
during habeas, that the jury would have weighed the
evidence in favor of a life sentence.” Jd. at 1005.
Although Allen presented a very different factual
situation, it does require that we look beyond the fact
of counsel’s deficient performance to determine
whether it had any effect on the result.
The record in this case clearly shows that the
presentation of evidence of Correll’s alleged brain
damage, sociopathic or antisocial personality disorder,
drug use, and troubled family would not have made
any difference to the trial judge or the Arizona
Supreme Court. This conclusion is solidly based on the
horrific nature of the murders, the applicable
constitutional and state law as it existed when Correll
was tried, the perceived nature of the trial judge’s
jurisprudence, and the incredibly damaging nature of
the rebuttal evidence. It is one thing to cast about for
alternate theories after the imposition of the death
penalty, and an entirely different thing to argue that a
defendant who has been convicted by a jury of first-
degree murder should not receive the death penalty
because he is a sociopath who cannot control himself.
Correll’s counsel thought that there was a one in
twenty chance that Judge Howe would not impose the
death penalty if the murders were presented as the
-
A-31
result of a “routine robbery, drug rip off that went
bad.” The presentation of further evidence of Correll’s
mental and medical records, antisocial behavior, and
prior crimes — far from eliciting sympathy — would
have rendered a death sentence a certainty rather than
a probability.
The panel majority’s opinion 1s not only factually
wrong, but more importantly for Ninth Circuit law,
fails to follow the standard for ineffective assistance of
counsel mandated by the Supreme Court and followed
in our prior cases. First, instead of fairly asking
separately whether counsel's performance was
deficient and whether the deficient performance was
prejudicial, the opinion collapses the two standards
into a single inquiry of whether counsel’s performance
was deficient. In other words, it in effect allows a
finding of a deficient strategic decision to carry an
irrebutable presumption of prejudice. Second, it fails to
recognize that even assuming that a presumption of
prejudice may arise from a determination of deficient
performance, here the presumption was rebutted. It
does this by insisting that there were “classic —
mitigating circumstances,” without acknowledging the
seriously damaging nature of this evidence.'3
The panel majority’s opinion makes it almost
impossible for defense counsel in a death penalty to
render effective assistance of counsel. Where, as here,
defense counsel recognizes that what might arguably
13 As previously noted, we have held that the double-edged nature
of arguably mitigating evidence may justify a decision not to
present such evidence. Williams, 384 F.3d at 619-20.
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be mitigating evidence is also damaging, he or she
faces an impossible decision. If counsel decides to
forego presentation of the evidence, counsel’s
performance may be subsequently determined to be
ineffective because the choice was prejudicial (the
client received the death penalty). If defense counsel
proffers the controversial evidence, and the client gets
the death penalty, counsel will be chastised for
introducing evidence that was prejudicial to the client.
Moreover, every criminal defendant who persuades a
court that his or her counsel was ineffective will argue
that if the deficiency was prejudicial in this case, it
must be prejudicial in his or her case. Because the
panel majority misconceives the Strickland standard
for ineffective assistance of counsel and then applies it
in such a way as to suggest an irrebutable presumption
of prejudice from a counsel’s deficient strategic
decision, I dissent from our decision not to rehear this
matter en banc.
OPINION
THOMAS, Circuit Judge:
Michael Emerson Correll, an Arizona inmate
sentenced to death, appeals the district court’s denial
of his petition for writ of habeas corpus following our
remand for an evidentiary hearing. We reverse.
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I
This capital case arises under a federal habeas
corpus provisions that have been supplanted by the
Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132, 110 Stat. 1214 (“‘AEDPA”), and a
state capital sentencing statute that has since been
repealed.
The factual history of this case was detailed in
our earlier opinion, Correl/] v. Stewart, 137 F.3d 1404,
1408-10 (9th Cir. 1998) (“Correl] I’). Briefly, Correll
was convicted by an Arizona jury in 1984 of first degree
murder, attempted first degree murder, kidnapping,
armed robbery, and first degree burglary, all for his
role in a triple homicide. Jd. at 1408. He was sentenced
to death by the trial judge, zd. at 1410, and the Arizona
Supreme Court upheld his conviction, State v. Correll,
148 Ariz. 468, 715 P.2d 721 (Ariz.1986). The Supreme
Court, however, 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 constitutional 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 attorney's ineffectiveness. The
Arizona trial court summarily dismissed Correll’s
A-34
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 corpus in federal district court under 28 U.S.C.
§ 2254. Correll alleged fifty-three constitutional
violations at trial, at sentencing, and during the
appellate process. The district court determined 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. Correl/
I, 137 F.3d at 1420. We remanded that issue to the
district court with instructions to hold an evidentiary
hearing. Jd.
On remand, the district court conducted a nine
day evidentiary hearing. Applying the standards set
forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, the
district court concluded that the performance of
Correll’s attorney at sentencing was deficient but that
Correll had suffered no prejudice. The district court
therefore granted judgment against Correll on his
federal habeas corpus pe*ition. This timely appeal
followed.
Because Correll’s petition for a writ of habeas
corpus was filed before the effective date of AEDPA,
A-35
pre-AEDPA law governs our consideration of the
merits. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct.
2059, 138 L.Ed.2d 481 (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, which 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. Jd.
Il
[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. Richardson, 397 U.S. 759, 771 n.
14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). This right
extends to “all critical stages of the criminal process,”
Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158
L.Ed.2d 209 (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 performance of his counsel
fell below an objective standard of reasonableness at
A-36
sentencing and, second, that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” 466 U.S. at 694. Under Strickland, we
measure an attorneys performance against an
“objective standard of reasonableness,” calibrated by
“prevailing professional norms.” Jd. at 688.
There are two aspects of Correll’s penalty phase
defense that are at issue in this appeal: the
investigation of possible defenses and the presentation
of valid ones.
A
[2] Counsel has a duty at >enalty phase “to
conduct a thorough investigation of the defendant’s
background.” Williams v. Taylor, 529 U.S. 362, 396,
120 S.Ct. 1495, 146 L.Ed.2d 389 (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 original). When it
comes to the penalty phase of a capital trial, “[ilt 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 conducting an investigation. Rompilla v.
A-37
Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 2466, 162
L.Ed.2d 360 (2005); Williams, 529 U.S. at 396. The
standards in effect at the time of Correll's capital trial
clearly described the criminal defense lawyer's duty to
investigate, providing specifically:
It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and to
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
constituting guilt or the accused’s stated desire to
plead guilty.
ABA Standards for Criminal Justiee 4-4.1 (2d ed. 1982
Supp.).
As measured against these prevailing professional
norms, there can be little doubt that Correll’s penalty
phase counsel fell below an objective standard of
reasonableness.
{3] First, Correll’s attorney did little to counsel
Correll about potential mitigating arguments, even
though “[aldequate consultation between attorney and
client is an essential element of competent
representation of a criminal defendant.” United States
v. Tucker, 716 F.2d 576, 581 (9th Cir.1983) (citation
omitted). Correll alleges that defense counsel met with
him only once, for five minutes, between trial and
A-38
sentencing. Correl] J, 137 F.3d at 1412. At the
evidentiary hearing, his attorney contradicted that
allegation, testifying that he met with Correll
“[p]robably two or three times.” Based on the attorney's
testimony, the district court rejected Correll’s assertion
of minimal consultation, specifically finding that
Correll’s atiorney “did maintain regular contact with
Petitioner prior to sentencing.”
The record, however, reveals that the district
court’s finding of adequate consultation was clearly
erroneous. Even if counsel's efforts to communicate
with Correll exceeded one five-minute meeting, his
penalty phase consultation was unreasonably limited.
Indeed, Correll’s attorney was not even confident that
he had met with Correll more than once; he testified, “I
know definitely one time that I can recall, but I think
probably two or three times.” His hand-written notes
from the time period confirm only two meetings. More
importantly, the attorney’s notes make clear that
Correll failed to grasp the significance of the
sentencing hearing and that his attorney made, at
best, minimal efforts to explain it to him. In fact,
Correll asked to be sentenced as soon as possible so
that he could go to the Department of Corrections in
time to pick up a Christmas package, and his attorney
acquiesced in that request. At no point did Correll's
counsel explain to Correll the possibility of a mitigation
defense arising from Correll's drug use, brain damage,
family history, or psychiatric record, and at no point
did counsel ask Correll for information or contacts
specifically related to those issues. We therefore
conclude that the district court's factual finding on this
issue was clearly erroneous and that the district court's
A-39
legal conclusion was in error. Correll's attorney did not
maintain constitutionally adequate contact or engage
in constitutionally adequate consultation with Correll
in between conviction and sentencing.
[4] Second, penalty phase investigations in
capital cases should include inquiries into social
background, including investigation of any family
abuse, mental impairment, physical health history,
and substance abuse history. Summerlin v. Schriro,
427 F.3d 623, 630 (9th Cir.2005) (en banc). That
investigation should include examination of mental
and physical health records, schoo! records, and
criminal records. Jd. “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 history
and prior convictions.” Jd. (citing Rompilla, 125 S.Ct. at
2465). In this case, although defense counsel was >
aware that potential mitigating evidence existed, he
did not explore any avenues that might lead to
development of that evidence.
[5] The district court excused defense counsel’s
failure to investigate many of these mitigating factors
on the ground that Correll “had not informed” his
attorney of the various “allegations” that amounted to
classic mitigating circumstances. Om that basis, the
district court apparently concluded that defense
counsel was unaware of-and could not imvestigate-
many of the mitigating factors that Correll proffered
during the evidentiary hearing. Although the district
court was apparently right to conclude that Correll did
not specifically inform his counsel of some mitigating
A-40
factors, the court's implicit conclusion that the attorney
was ignorant of those factors is clearly erroneous.
When questioned during the mitigation hearing,
Correll’s trial counsel explicitly confirmed that he was
aware of Correll’s mental health disorders, psychiatric
commitments, drug abuse history, brain injury, and
family dysfunction. Defense counsel testified as
follows:
Q. Were you aware that [Correll] had spent
nearly his _ entire teen life, from ages 14 to
18, as a ward of the State of California
and an inmate of the California Youth
Authority?
A. Yes.
Q. [These [referring to exhibit] are notes from your
first interview and your first meeting
with Mr. Correll?
A. Yes.
Q. And you see there noted, don’t you, that you
learned of mental disorders. You checked the
mental disorders box, and that he had been
committed twice, and “in joint.” Do you see that?
A. Yes.
Q. So you knew from the inception of this case that
Mr. Correll had a couple of commitments to
A-41
psychiatric or mental institutions?
[Objection colloquy omitted.]
THE WITNESS: Yes, I definitely knew that.
[Colloquy omitted.]
Q. You also learned, during the course of your
representation of Mr. Correll, that he had a
rather lengthy drug abuse history, didn't you?
A. Yes.
Q. Did you also learn, during the course of your
representation, that other of the Correll brothers
had criminal records and themselves had been
incarcerated in the Youth Authority?
A. Yes.
Q. Did you learn that his sister Robin was residing
in a foster home?
A. I believe I was aware of that. I don't recall at this
point. i
Q. Did you then, conclude that there were problems
of some description within the Correll household
that may have contributed to the Correll
childrens’ [sic] poor record of success?
A. Oh, it was obviously an extremely dysfunctional
family.
A-42
This testimony makes perfectly clear that Correll's
trial counsel was aware of many if not all relevant
mitigating factors. The district court's implicit
conclusion to the contrary was clearly erroneous.
Indeed, in light of the abundance of classic
mitigation evidence of which counsel was aware, his
almost complete failure to investigate is startling.
Despite his knowledge that Correll was a drug user
with an extremely troubled childhood, defense counsel
did not interview witnesses about these issues or
obtain records concerning these matters. The district
court found that Correll’s attorney “interviewed or
tried to interview” about forty or fifty witnesses but
that “[t]he witnesses were not able to provide relevant
useful mitigation information.” On that basis, the
district court found that counsel's investigative efforts,
at least with respect to the interviews, were adequate.
Once again, the district court’s factual finding and
legal conclusion are clearly erroneous.
Admittedly, counsel did meet with some
witnesses during the trial phase, including those
members of Correll’s family who would cooperate. But
counsel testified that he met only once with Correll’s
father, sister, and brother, “around the kitchen table at
the same time,” and probably spent only “[a] couple
hours” with them. Furthermore, Correll's counsel
admitted that he interviewed witnesses only during
the guilt phase, not during the sentencing phase.
Although the attorney testified that he was looking for
mitigation information as well as_ exculpatory
information during those pre-trial interviews, he failed
A-43
to ask any direct questions or to conduct any direct
investigation related to the mitigating factors that are
now at issue. When counsel was asked at the
evidentiary hearing whether he had questioned the
interviewees about Correll's drug abuse, head injury,
psychiatric history, or family dysfunction, counsel
testified that he asked no such specific questions but,
rather, asked the interviewees simply to “tell [him]
anything [they could] tell [him ] that would help.” As a
result, counsel's interviews were substantively
worthless. Thus, his failure to gather mitigating
information did not result from its unavailability; it
resulted from counsel's complete failure to ask any
relevant questions. The district court’s conclusion to
the contrary was clearly erroneous.
Additionally, trial counsel did not obtain records
from Correll’s schools or from psychiatric institutions,
even though counsel admitted that those records may
have contained mitigating evidence. Counsel also failed
to obtain police reports on prior convictions and records
regarding the time that Correll was in the custody of
the California Youth Authority. Counsel did not obtain
Correll’s medical records, and he made no inquiry into
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, though he did remember thet he
*
—-
A-44
failed to obtain records from Correll’s stays at various
mental health centers.! As the district court correctly
concluded, counsel’s failure to obtain these relevant
records constituted deficient performance.
In sum, defense counsel’s investigation inte
classic mitigators was extremely limited. Two of the
district court’s conclusions were clearly erroneous: that
counsel was unaware of some mitigators and that
counsel conducted sufficient interviews to investigate
the mitigators of which he was aware. The district
court correctly concluded that counsel failed to obtain
relevant records that were available at the time. Taken
together, this evidence demonstrates that counsel's
investigation into classic mitigators was unreasonably
limited-that counsel's penalty phase representation
was constitutionally inadequate.
Of course, Correll’s attorney was not wholly
without a mitigation strategy. But the limited strategy
that he developed was unreasonably constricted, and
even with respect to that anemic strategy, counsel’s
investigative efforts were unreasonably weak.
Defense counsel testified that the principal
mitigation evidence he sought was information that
would show Correll as a “good person” and one who
had “done good de2ds.” Such a limitation on the scope
of the mitigation investigation was, in and of itself.
unreasonable given the extreme unlikelihood that any
' As the district court found, some of these records were destroyed
between the time of the tnal and the time of the habeas
investigation.
—
A-45
testimony about Correll’s character would have been
sufficient to “humanize [] him during the time trame
of the murder conspiracy at issue.” Al/en v. Woodford,
366 F.3d 823, 851 (9th Cir.2004). Rather, as Correll’s
attorney knew at the time, the most likely type of
evidence available was the type that would portray
Correll as a “person whose moral sense was warped by
abuse, drugs, lor] mental incapacity.” Jd.
Even assuming, however, that reliance on a
character defense was a reasonable strategy in this
case, counsel's investigation into character evidence
was inadequate. For example, Correll’s attorney was
aware that a chaplain with the California Youth
Authority, Reverend Curry, might have been willing to
testify on Correll’s behalf, but the attorney never even
attempted to contact Reverend Curry.’
[6] Based on the foregoing, we conclude that
Correll’s counsel provided constitutionally deficient
representation during his investigation into possible
mitigation defenses. The district court was correct in
its limited holding that defense counsel failed to seek
?The district court concluded that this failure was not prejudicial
because Reverend Curry’s employer did not permit him to testify
on Correll’s behalf. The district court, however, completely
misunderstood Reverend Curry's testimony. The California Youth
Authority prohibited Reverend Curry from initiating contact with
Correll’s attorney, but it did not prohibit him from appearing on
Correll’s behalf at the hearing. Reverend Curry testified
repeatedly that he would have been happy to speak on Correll’s
behalf if Correll’s attorney had initiated contact (which, again, he
never did).
A-46
and obtain mental health and other medical records,
and we further conclude that the rest of defense
counsel's investigative efforts, including his contact
and consultation with Correll, his interviews with
relevant witnesses, and his development of a
character-based mitigation strategy, were also
constitutionally inadequate. Defense counsel's failure
to investigate falls far short of any objective standard
against which we might measure reasonable attorney
performance under the Sixth Amendment.
B
Compounding his errors during the investigative
phase of sentencing, Correll's attorney then presented
to the court virtually none of the little mitigating
evidence that he had developed. “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) (Reinheedt, 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).
[7] As anemic as the defense counsel’s
investigation was, his presentation of mitigating
evidence at the penalty phase was worse. In fact,
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. The state
A-47
trial court record states: “Defendant waives
presentation of mitigating evidence.”
Indeed, the only proactive effort that Correll's
attorney made at sentencing was to write a short
response to the presentence report. In that written
submission, he included a list of mitigating arguments,
but he did not support those arguments with any
evidence, affidavits, or testimony. The entirety of the
written submission in mitigation reads as follows:
A. Defendant was under the influence of alcohol
and drugs at the time the offenses were
committed.
Guy Snelling stated in an interview with
police officers on April 12, 1984, that there
was alcohol 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 committed.
B. Defendant was only a follower in the
commission 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
A-48
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 Resen, Robin
Cady or Shawn Di'Brito.
D. Defendant has cooperated with the Adult
Probation Office in the preparation of his
presentence report.
E. Defendant’s age.
Predictably, the Arizona Supreme Court and the
federal district court concluded that this mitigation
argument was not sufficiently significant to call for
leniency.
[8] The anemia of counsel's mitigation
presentation was a critical error, certainly rising to the
level of constitutionally deficient representation. “The
failure to present mitigating evidence during the
penalty phase of a capital case, where there are no
tactical considerations involved, constitutes deficient
performance, since competent counsel would have
made an effective case for mitigation.” Smith v.
Stewart, 189 F.3d 1004, 1008-09 (9th Cir .1999).
[9] The error’s full magnitude, however, does not
become apparent until we consider the effect it had
under Arizona law in particular. At the time of the
penalty phase proceedings, Arizona law mandated the
_— ae “-
A-49
death penalty if the trial judge found any one of the
enumerated aggravating factors and determined that
there were no mitigating factors that were sufficiently
substantial to call for leniency. Ariz. Rev. Stat. § 13-
703 (1984). One of the enumerated aggravating
circumstances is a previous violent felony, for which
Correll unquestionably qualified. State v. Correl/, 715
P.2d at 731. In Correll’s case, therefore, 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 circumstance like a prior
aggravated felony was found, death was inevitable
without mitigating evidence, and thus holding that the
failure to pursue psychiatric evidence constituted
prejudicially deficient performance).
In fact, the State argued five aggravating
factors, and Correll’s defense counsel disputed only a
few of them. He disputed 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 authorizing this
factor was not in effect on the offense date. At the
evidentiary hearing in the district court, 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.
Defense counsel’s sentencing memo does not
even attempt to rebut three of the five aggravating
factors urged by the State. In his oral presentation at
sentencing, counse! mentioned the aggravating factors,
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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.
Given counsel’s virtual concession of most of the
aggravating factors argued by the State and his 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
leniency.” State v. Correll, 715 P.2d at 735. The Court
highlighted 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 appreciate the
wrongfulness of his conduct.” Jd. The Court was
particularly dismissive of his attempt to count
cooperation in the pre-sentence investigation as a
mitigating factor, noting “[iJt is in defendant’s interest
to cooperate at sentencing; defendant should not be
rewarded for self-serving acts.” Jd.
(10) In sum, Correll’s counsel was
constitutionally deficient in failing to investigate and
present mitigating evidence. Particularly in light of
Arizona's death penalty regime, the failure to develop a
robust mitigation defense-and the failure to defend
against the State’s aggravation case-was unreasonable,
falling below any objective standard of adequate
representation.
A-51
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 adequate
inquiry is immune from attack under Strickland.”
Gerlaugh, 129 F.3d at 1083. 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 particular
investigations unnecessary.” Strickland, 466 U.S. at
691. In addition, “le]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). In this case, because of defense
counsel's failure to investigate potential mitigation
evidence, he had too little information to make any
informed strategic decision. Furthermore, when
considered objectively, his purported “strategy” cannot
be considered reasonable.
1
[11] A decision by counsel not to present
mitigating evidence 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
mitigating evidence to the jury); Si/va, 279 F.3d at 843
(reengnizing “the breadth of a criminal defendant’s
constitutional protection against his attorney's failure
to investigate mitigating evidence when defending his
A-52
client against a capital sentence”). In Wiggins, the
Supreme Court held that the traditional deference
owed to the strategic judgments of counsel is not
justified where there was not an adequate
investigation “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 uninformed 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 are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation”).
In Silva, for example, we held that in the
absence of diligent investigation, counsel cannot make
a reasoned tactical decision regarding whether or not
to present mitigating evidence. 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
evidence}.” Jd.
[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 decision as to whether to present
the evidence and arguments that were available. His
A-53
choice not to present mitigation evidence, therefore,
cannot be justified as strategic.
2
To the extent that there was any strategy
involved in the penalty phase presentation, it cannot
be considered a reasonable strategy by any objective
measure.
Defense counsel chose to rely on the pre-
sentence report prepared by a state probation officer,
despite his own characterization of that report as “one-
sided.” During his short sentencing argument, defense
counsel criticized the author of the pre-sentence report
for failing to interview several people who could have
provided mitigating statements. The irony, of course, is
that defense counsel could have introduced during the
penalty phase the very mitigating evidence that he felt
the probation officer should have gathered.
The sentencing report described the crimes as
“particularly heinous” and speculated that “the murder
scene in the desert must have been particularily
gruesome.” The probation officer concluded 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 psychopathology,” 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 “[hle is a
a - . ie:
A-54
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 mitigation, and no competent
capital defense counsel would have relied upon such a
report as providing mitigation evidence, much less as
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.
When asked at the evidentiary hearing, “what
was your sentencing strategy,” trial counsel responded
that it was “hoping that [the judge] liked Mr. Correll”
and hoping that the judge found that the crime “was a
drug ripoff that went badlI,] that Michael was under
the influence,” and that “he wasn't the leader in the
crimes.” When pressed, however, defense counsel was
4 forced to admit that portraying the crime as a onetime
drug ripoff gone bad was not something that would
constitute a mitigating factor.
Throughout the evidentiary hearing, defense
A-55
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 that was
available, such as potential brain injury,’ a history of
drug addiction, and abuse suffered as a child, counsel
testified that he didn't think of the evidence as
favorable evidence. However, it is precisely this type of
evidence that the Supreme Court has deemed
“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 feared that the judge would learn of
it, and he testified that he might have presented
evidence of Correll’s history of drug addiction had he
been before a different judge.‘ He believed that the
3 As the district court noted, the Arizona Courts place significant
weight on brain injuries as mitigating evidence. Similarly, “[wJe
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).
4 The dissent characterizes this decision not to present
psychological evidence as strategic because it would “make it ~
easier for the judge to sentence Correll to death because it would
cause him to view Correll as permanently psychologically
damaged.” However, counsel’s failure to investigate Correll’s
psychological history for fear of the trial judge cannot be termed
(Continued)
A-56
judge would use mitigating evidence as an aggravating
factor, in violation of the mandatory language of
Ariz.Rev.Stat. § 13-703(E). When asked in a pre-
hearing interview about his decision not to introduce
evidence of Correll’s psychological disorders, counsel
responded:
[A]s a practical matter, and certainly with Judge
Howe [the trial judge], once he found out that
this man was a sociopath or psychopath,
whichever term you want to use, he didn't have
a chance in a hundred of keeping from getting
the death penalty. ‘Cause even though he can
claim that this is a mitigating factor the reality
is that when you tell someone in society and
certainly Judge Howe, the man is a sociopath,
that dictates that he's the kind of person who
should get the death penalty, that’s what the
thinking’s going to be.
This entire line of reasoning, however, presumes
that the judge would not follow the laws—speculation
(Continued).
“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
inappropnately by considering evidence outside of the record in making his
sentencing decision, and it fails to recognize the importance of creating 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.
* See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981) (holding
that personality disorders, while they do not qualify as statutory mitigators,
must be considered as potential mitigators, particularly where there is
(Continued)
A-57
that is never appropriate and that is not supported by
the record here.
Fear of a particular sentencing judge’s reaction
also ignores the fact that, in capital cases, the Arizona
Supreme Court conducts an independent review of the
aggravating and mitigating factors, re-weighing them
afresh. See State v. Johnson, 147 Ariz. 395, 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 circumstances in order to
determine for ourselves if the latter outweigh the
former and justify the sentence.”); see also State v.
Richmond, 114 Ariz. 186, 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.”). At the
time of Correll’s appeal, the Arizona Supreme Court
was also required to conduct an independent
proportionality 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 independent re-weighing
of aggravating and mitigating factors.
[14] In short, to the extent that defense counsel
had a strategy at all, it cannot be considered an
objectively reasonable strategy.
(Continued).
evidence that the personality disorder influenced the defendant’s behavior).
A-58
3
Counsel's ineffective assistance at sentencing
cannot be excused as strategic. He failed to conduct an
investigation sufficient to make an informed judgment.
To the extent that his decisions reflected any tactical
considerations, his approach of not putting on a
mitigation case cannot be considered an objectively
reasonable strategy, even when viewed under the
highly deferential Strick/and standard.
III
[15] It is, of course, not enough for Correll to
establish that his counsel’s performance at sentencing
fell below an objective standard of reasonableness. He
must also “show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is
a probability sufficient to “undermine confidence in the
outcome.” Id.
In considering this question, we have recognized
that deficient 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 undermined our
confidence in the sentence of death imposed by the
trial judge.”); Smith, 189 F.3d at 1011 (“Because of
[counsel's] failure to provide competent representation,
our confidence in the outcome of Smith's sentencing
A-S9
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 (noting that “although we suppose that [the
sentencer] could have heard it all and still have
decided on the death penalty, that is not the test”).
Here, there was a substantial amount of classic
mitigating evidence that could have been presented,
but was not.
Correll had endured an abusive 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 indicated that they were
confused or did not understand the religious doctrine,
they were punished. Correll’s father was largely absent
but sometimes aided his wife in physically punishing
their children. There was evidence of incest in the
family.
When Correl was seven, a brick wall collapsed
on his head. Although he was unconscious for some
A-60
time after the accident, 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 for the mental health illnesses
that were later diagnosed when he became a ward of
the state.
6 The district court dismissed evidence of Correll’s brain injury,
concluding that any organic brain injury played no role in Correll’s
crimes. The district court’s conclusion was based on the judge's
own evaluation of two conflicting experts. But in the procedural
context of this case, the district court’s role was not to evaluate the
evidence in order to reach a conclusive opinion as to Correll's brain
injury (or lack thereof). The district court should have decided only
whether there existed a “reasonable probability” that “an objective
fact-finder” in a state sentencing hearing would have concluded,
based on the evidence presented, that Correll had a brain injury
that impaired his judgment at the time of the crimes. Summerlin,
427 F.3d at 643. Because the competing neuropsychologists who
testified at the evidentiary hearing agreed that the evidence of
brain injury was at least strong enough to deserve presentation at
a sentencing hearing, we conclude that Correll’s evidence had at
least a “reasonable probability” of persuading an objective fact-
finder. The district court clearly erred when it concluded that
Correll presented insufficient evidence of organic brain damage.
A-61
It is notable that each of the six Correll children
reported that they had or have had substance abuse
problems beginning in childhood or adolescence.
Further, at least five of the six children 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 “gladiator schools,” which were
characterized as cruel and inhumane, 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
A-62
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 he
attempted suicide on two occasions. However, there is
no evidence 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 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 he was injecting 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, followed 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
impairment, and aggressiveness at the time of the
crime and that he may have been experiencing drug-
A-63
induced paranoia.’
In sum, there was a substantial amount of
mitigating evidence available,* which, taken together,
is sufficient to raise a presumption of prejudice under
the Supreme Court's standard in Wiggins, 539 U.S. at
534-38.
But we need not rest on presumption. All of the
available evidence constituted classic mitigation
evidence that certainly had the potential to persuade
7 The district court discounted much of this evidence on the
ground that it was based on Correll's self-reported drug habits,
which the court concluded were not credible. The conclusion that
Correll's reports were not credible, however, is clearly erroneous in
light of the substantial corroborating evidence introduced at the
evidentiary hearing. Two witnesses, Dawn Day and Reverend
Curry, testified as to their own observations of Correll’s drug
habits, and their observations fully comported with Correll’s self
reports. Medical] and prison records indicated that Correll had
issued identical self reports at times when he had no incentive to
exaggerate the extent of his drug abuse. Furthermore, Correll’s
reports of his drug use have never varied, over the course of
several decades. In short, there was no reason for the district court
to doubt the veracity of Correll’s self reports. On the contrary,
there was significant evidence tending to corroborate Correll’s
account, including several records showing consistency over time
of Correll’s story.
8 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 appropriateness of imposing the death
penalty for his actions.
A-64
“an objective fact-finder” that Correll was, at the time
of the crimes, incapable of appreciating the
wrongfulness of his conduct. Summerlin, 427 F.3d at
643. To use the Supreme Court's words, “[hJadl[a] jury
been able to place petitioner's excruciating life history
on the mitigating side of the scale, there is a
reasonable probability that at least one juror would
have struck a different balance.” Wiggins, 539 U.S. at
537.
[16] Indeed, in this case, the evidence of Correll’s
“excruciating” history could have provided an
alternative-and much more sympathetic-context for the
horrific observations and conclusions that were before
the judge in the presentence report. While the
presentence report characterized Correll as a “threat”
and a “menace,” the evidence of Correll’s family
history, personality disorder, and brain injury could
have colored Correll as an organically diseased and
injured person who, through no fault of his own, lacks
the ability to comprehend the immorality of his
conduct. Correll’s full history also had the potential to
convince an objective fact-finder that his criminal
behavior has, throughout his life, been his means of
gaining the negative and destructive attention that he
was taught to seek from a very young age. As the
Supreme Court has consistently instructed, these
kinds of claims constitute classic mitigation, which a
fact-finder must consider when deciding between life
imprisonment and death.
Perhaps more compellingly, the evidence of
Correll’s methamphetamine use on the night of the
crimes, had it been fully presented, could have risen to
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the level of a statutory mitigator. Under Arizona law,
gross intoxication at the time of the crime constitutes a
statutory mitigator if that intoxication impaired the
defendant’s “capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the
requirements of law.” A.R.S. § 13-703(G)(1). There was
undisputed evidence adduced at the evidentiary
hearing that Correll was addicted to
methamphetamine, that Correll used some
methamphetamine on the day of the crime, that Correll
habitually used methamphetamine in astonishingly
and unusually high dosages, and that drug addicts
generally are incapable of using their drug of choice in
any dosage that is lower than their usual dosage. Thus,
the evidence strongly indicated that Correll used an
extremely high dosage of methamphetamine on the day
of the crime.
The district court, however, concluded that there
was no evidence of gross intoxication at the time of the
crimes because certain witnesses indicated that Correll
was oriented during the commission of the crimes. This
conclusion rests on a critical misunderstanding of the
evidence.
At the evidentiary hearing, expert testimony
made it clear that gross methamphetamine
intoxication, unlike gross alcohol intoxication, is not
necessarily apparent to outside observers. The experts
described a state known as “methamphetamine
blackout,” during which the user would be capable of
performing complex tasks but would be incapable of
understanding or remembering his behavior. One of
the experts, a recovered methamphetamine addict,
A-66
specifically confirmed the possibility that “those
observing a person in a methamphetamine blackout
[wouldn't] know that the person is in a
methamphetamine blackout.” This evidence severely
undermines the propriety of the district court’s reliance
on witness observation in concluding that Correll was
not intoxicated on the night of the crimes. Those
witnesses might not have known whether Correll was
intoxicated or not.
Furthermore, the experts also testified that
gross methamphetamine intoxication impairs a
person’s inhibition and judgment, rendering the
intoxicated person incapable of measuring and
understanding the consequences of his actions. A
person in a methamphetamine blackout, the experts
implied, would not be capable of understanding the
“wrongfulness of his conduct.”
[17] Thus, the district court was clearly wrong to
conclude that there was no available evidence that
Correll was grossly intoxicated—to the point of being
unable “to appreciate the wrongfulness of his
conduct”—on the night of the crime. Expert testimony
at the evidentiary hearing clearly established that
methamphetamine use, in the quantities that Correll
undisputably used the drug on a regular basis, would
significantly impair judgment and consciousness
without causing perceptible symptoms of intoxication.
We conclude that this evidence—had it been developed
and presented—could reasonably be expected to
persuade an objective fact-finder that Correll was
incapable of understanding the wrongfulness of his
conduct on the night of the murders.
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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
evidence in rebuttal.” However, a significant portion of
that damaging rebuttal evidence was already available
through the pre-sentence report. For example, the
“numerous escapes from mental health treatment
facilities” and the “hostage taking and armed
aggression against mental health workers” were both
clearly delineated in the pre-sentence report.
Furthermore, al/ of the so-called “damaging
rebuttal evidence” could, in the hands of a competent
attorney, have been used to support Correll’s claims of
dysfunctional upbringing and continuing mental
disorder. For example, Correll’s statement that he felt
“a strong sense of power and excitement” when he
committed armed robbery could show either that
Correll is dangerous—as the presentence report
concluded—or that Correll has a diseased perception of
social interaction, which prevents him from conforming
his conduct to the law. Indeed, all of the facts on which
the dissent relies could be either dehumanizing or
mitigating, depending on the context and history given
for each cited fact.®
9 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 misidentification.
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In view of the record developed at the
evidentiary hearing, we conclude that there is a
reasonable probability that the outcome of Correll's
sentencing would have been different had he received
competent representation. This was an unusual case in
the capital context because it involved a defendant who
had not killed any of the victims, although he certainly
attempted to kill one person who fortunately survived.
The actual murders were committed by another
person. The failure to present a mitigation case was
particularly indefensible under Arizona law that
existed at the time, which required the imposition of
the death penalty absent a case in mitigation. Given all
of these factors, there is a significant possibility that
the introduction of some mitigating evidence could
have spared Correll’s life.
IV
[18] Correll was constitutionally entitled to the
presentation of a mitigation defense. He did not receive
one, although substantial mitigation evidence existed.
Most importantly, because Arizona law required the
imposition of a death sentence if aggravating factors
were proven and no mitigating factors presented, the
failure to present any mitigation defense constituted
ineffective assistance of counsel under the standards
set forth in Strickland. The fear of a trial judge cannot
be considered strategic justification for forgoing the
presentation of a mitigation defense, particularly given
that (1) Arizona law required imposition of the death
penalty when no mitigating factors were found, and (2)
the Arizona Supreme Court was required to re-weigh
the aggravating and mitigating factors. Furthermore,
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the evidence adduced at the evidentiary hearing
revealed several classic mitigators that a reasonable
attorney could have used to contextualize Correll’s
violent past and to mitigate Correll’s current
culpability.
[19] We conclude the 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.
O'SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s conclusion
that Correll 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. Al/en v. Woodford, 395
F.3d 979, 1000 (9th Cir.2005) (quoting Williams v.
Taylor, 529 U.S. 362, 394 (2000)) (internal quotation
marks omitted). The majority ignores the mountain of
precedent which requires us, in assessing prejudice, to
consider not only the likely benefits of the mitigating
evidence Correll’s counsel failed to present, but also its
likely drawbacks. In addition, the majority substitutes
its independent analysis of the record for that of the
district court, relying 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 23 years ago. Because I do not believe that
Correll has met his burden “affirmatively [to] prove
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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
unhkelihood that Correll’s new evidence would have
convinced the sentencing judge not to impose the death
penalty.'°
A
On the night of April 11, 1984, as Guy Snelling
and his girlfriend Debra Rosen were getting ready to
go to sleep, a 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'Britro, two friends of
Snelling, unwittingly arrived at the house, Correll
secured them with duct tape as well. Then Correll and
Nabors escorted Snelling throughout his home to
10 Although it is normally not necessary to restate the facts and
procedural 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.
\
ane
A-71
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 Naborss 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’Britro, 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 likely that
Correll’s brother Terry, who resembled Correll, had
committed the crimes instead. Unpersuaded by this
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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 burglary, 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) grave risk
of death to others in addition to the persons
murdered;2 (3) commission of the murders in
anticipation of pecuniary gain;' (4) commission of the
murders in an especially heinous, cruel or depraved
manner;'* and (5) convictions for multiple murders
during the offense.'5
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
1 Ariz. Rev. Stat. § 13-703(F)(2)
12 Jd. § 13-703(F (3).
18 Jd. § 13-703(F (5).
14 Id. § 13-703(F)(6).
18 Id. § 13-703(F (8).
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government's proffered aggravating factors.'6 He
argued-and the sentencing court agreed-that the
“grave risk of death to others” aggravating factor did
not apply. He also argued that the multiple murder
aggravating factor could not be considered. Although
the sentencing court did not accept this argument,
Correll's attorney preserved it for appeal and the
Arizona Supreme Court later invalidated this
aggravating factor. See id. at 734-35. Correll’s attorney
further argued, unsuccessfully, that the evidence did
not support the remaining aggravating factors.
In addition to challenging the government's
aggravating factors, Correll’s attorney also presented
substantial mitigating evidence.’ First, counsel
16 The majority unduly discounts defense counsel's attack of the
government's asserted aggravating factors. See Maj. Op. at 5450-
51. Both the Arizona Supreme Court and the state trial court
disagreed with the majority's assessment of counsel's performance
with respect to the “grave risk of death to others” and the
“multiple murders” aggravating factors, agreeing with counsel's
assertion that the first factor was unsupported and the 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. Furthermore, counsel made compelling
substantive legal and factual arguments with respect to the other
aggravating factors.
17 The majority quotes the state trial court record, which reads
that “Defendant waiveld] presentation of mitigating evidence.”
Maj. Op. at 5447. This excerpt, however, was merely the
conclusion of the court clerk. In the district court proceedings,
defense counsel adamantly maintained that “[w]e didn't waive” the
presentation of mitigating evidence.
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emphasized that it was John Nabors, not Correll, who
actually shot the three victims who died. Second,
counsel endeavored to present Nabors as the “leader”
and “planner” of the criminal endeavor, accentuating
the facts that “Mr. Nabors was the one that knew Guy
Snelling was a drug dealer,” and that “Snelling would
have money and drugs [when] the robbery occurred. In
addition, counsel 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.” Finally, counsel pointed out that, prior to
the robbery, it was impossible for Correll reasonably to
have anticipated that anyone would be present in the
home other than Snelling, and that, consequently,
Correll could not have planned the three deaths. '5
Third, Correll’s attorney also argued for
mitigation, both in his sentencing memorandum and at
oral argument, on the grounds that Correll was under
the influence of drugs and alcohol at the time of the
murders.'® Counsel specifically drew the sentencing
judge’s attentior to Snelling’s statement to the police
that he smelled alcohol on Correll’s breath during the
crimes.
Fourth, counsel presented Correll’s troubled
'8 At the time of sentencing, Arizona state law explicitly provided
that such inability reasonably to foresee that one’s conduct would
cause death to another person was a statutory mitigating factor.
Ariz. Rev. Stat. § 13-703(G)(4).
19 A defendant’s inability to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law is a
statutory mitigating factor. See Ariz. Rev. Stat. § 13-703(G)(1).
A-75
family history, explaining that “the reason that Mike
[Correll } has had problems is the fact that when he
was 14 years old, that both of his parents abandoned
him and what can be expected when someone is
abandoned by their parents at such an early age?”
Finally, Correll’s attorney also argued that Correll’s
age—24—was mitigating.”
Although Correll’s attorney knew that Correll
had received psychological counseling, he 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 such a diagnosis would carry little, if any,
mitigating 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 psychologically damaged.?!
20 A defendant's age is a statutory mitigating factor. See Ariz.
Rev. Stat. § 13-703(G)(5).
2! As the district court summarized 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 npoff 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 alcoho! at the time of the
(Continued)
A-76
C
The sentencing judge ultimately found four
statutory aggravating circumstances.?2 Determining
that the mitigating evidence did not outweigh these
factors, the judge sentenced Correll to death on each of
the murder counts. The Arizona Supreme Court
affirmed Correll’s convictions, with the modifications
previously mentioned. It then re-weighed the
aggravating and mitigating factors and determined
that the death penalty was appropriate. Correl/, 715
P.2d at 736.
In his state petition for postconviction relief,
Correll alleged that his counsel rendered ineffective
assistance at sentencing. He contended that during the
month that elapsed between the jury verdict and the
sentencing hearing, his attorney met with him for just
five minutes. He also contended that his attorney
failed to investigate and to develop available evidence
relating to his psychiatric history and condition at the
time of the crimes. The state trial court summarily
dismissed Correll’s petition, concluding that Correll
raised “no colorable issues” relating to ineffective
assistance of counsel. The court went on to explain that
“the Court specifically recalls that the trial work of
(Continued).
crimes, and that he should be shown sympathy because
his family abandoned him at the age of 14.
*% The Supreme Court has since held that Arizona’s practice of judges
finding aggravating factors violates the Sixth Amendment night 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).
A-77
defense counsel was precise, careful, and competent,
and manifested strategic and tactical judgments of the
same high quality.” The Arizona Supreme Court denied
review without comment.
Correll later filed a federal petition for writ of
habeas corpus and the district court entered summary
judgment against him. On appeal (“Correl/ J’), we held
that Correll’s ineffective assistance allegations, which
had not been fully explored in state court, entitled him
to an evidentiary hearing. We held that Correll had
established (1) that the state court tricr 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 an evidentiary hearing on
Correll’s ineffective assistance of counsel claim. The
evidentiary hearing lasted nine days. The district court
heard testimony from 17 witnesses, 14 called by
Correll (who waived his appearance), and three called
by the government. In addition, the district court
reviewed reams of documents, including Correll’s
attorney’s notes, which were nearly a quarter-century
old, and Correll’s childhood medical records, which
were two decades older.
After outlining all the evidence in a detailed
109-page disposition, the district court made several
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findings. First, as to the sufficiency of counsel’s
consultation with Correll, the court rejected Correll’s
allegation that counsel spent only five minutes with
him between conviction and sentence. Instead, the
district court found that “[plrior to sentencing,
[counsel] had multiple face-to-face meetings and phone
calls with Petitioner” in which he “discuss[ed] with
Petitioner the overall mitigation case and the specific
reasons he would present to the court in favor of a life
sentence rather than the death penalty.”
Second, as to the sufficiency of counsel’s
investigation of possible mitigating evidence, the
district court found that counsel spoke to between 40
and 50 witnesses, including every member of Correll’s
family 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 many instances, the witnesses only
provided inculpatory and non-mitigating information.”
The district court did find that counsel’s
performance was constitutionally deficient in two
respects: (1) counsel’s failure to obtain medical
treatment records relating to the head injury Correll
suffered at seven years old and (2) counsel’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 mitigating evidence.
A-79
Nevertheless, the listrict court found that
Correll was not prejudiced by these errors. After
Correll’s postconviction counsel developed all the
evidence relating to Correll’s head injury and mental
health history, the district court still found Correll to
be a “highly functioning adult” who never suffered from
brain damage or a major psychological disorder. Thus,
the district court found that Correll’s medical and
mental health records provided no substantial evidence
of mitigation. Furthermore, the district court found
that much of the new evidence Correll offered would
have been counterproductive if put before the
sentencing judge because it would have “opened the
door for the prosecution to come forward with strong
damaging rebuttal information to counter its
mitigating effect.”
Il
In reversing the district court's judgment, the
majority concludes that the district court committed
“clear error” in finding that counsel's investigation and
presentation of possible mitigating defenses was
constitutionally sufficient. Under the clearly erroneous
standard of review, our scrutiny of a district court's
factual findings must be “significantly deferential, in
that we must accept the district court's factual findings
absent a definite and firm conviction that a mistake
has been committed.” Hovey v. Ayers, 458 F.3d 892,
900 (9th Cir. 2006) (quoting Silva v. Woodford, 279
F.3d 825, 835 (9th Cir. 2002)) (internal quotation
A-80
marks omitted).23 In other words, as long as the district
court’s account of the evidence “ ‘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 Engineering 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, 105 S.Ct. 1504, 84 L.Ed.2d
518 (1985)).
Unfortunately, the majority ignores these
instructions and embarks on its own independent
examination of the facts presented to the district court.
By contrast, as indicated by its exhaustive 109-page
disposition, the district court’s findings were well-
supported by the facts and reached only after a
thorough review of all available evidence. I simply
cannot agree that the district court’s findings were
erroneous at all, let alone clearly erroneous.
More alarming than its reconstruction of the
record, however, the majority jumps with startling
speed from its new factual determination that Correll
received ineffective assistance of counsel to its ultimate
conclusion that his habeas petition must be granted. In
so doing, the majority ignores Strickland’s second
requirement, that even if Correll proves ineffective
23 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).
A-81
assistance of counsel, he must also prove that the
result was actually prejudicial. Wiggins, 539 U.S. at
534 (citing Strickland, 466 U.S. at 692). As the
Supreme Court has made clear, we do not presume
prejudice from counsel's ineffective assistance.
Strickland, 466 U.S. at 693. Rather, even if counsel's
performance was deficient, Correll still bears the
“highly demanding and heavy burden of establishing
actual prejudice.” Allen, 395 F.3d at 1000 (internal
quotation marks omitted) (emphasis added). This
burden “affirmativelylto] prove prejudice” requires
Correll to show more than the mere possibility that
counsel's performance prejudiced the outcome.
Strickland, 466 U.S. at 693. Instead, Correll must
demonstrate “a reasonable probability” that, but for
counsel's constitutionally deficient performance, he
would have received a Jesser sentence. /d. at 695.
In assessing prejudice in this case, it is
important to remember that “we are not asked to
imagine what the effect of certain testimony would
have been upon us personally,” Stewart v. Smith, 140
F.3d 1263, 1270 (9th Cir.1998), or even to imagine the
effect of such testimony on an abstract juror. Instead,
we must determine what the effect of Correll’s new
evidence would have been upon the Arizona sentencing
judge at the time of Correll’s sentencing hearing 23
years ago. /d. As discussed below, none of the evidence
unearthed during the district court's evidentiary
hearing creates a “reasonable probability” that Correll
would have received a lesser sentence had it been
presented at the sentencing phase of his trial.
Accordingly, I cannot conclude that Correll has met the
heavy burden required to establish prejudice.
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A
First, Correll’s attorney’s failure to obtain the
medical records relating to Correll’s childhood head
injury was not prejudicial because these records did
not, in fact, demonstrate any brain damage. After
receiving testimony 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.” Quite to the contrary, the district
court credited a neuropsychologist’s testimony that “of
all the capital defendants he has tested, Petitioner is
one of the highest functioning.”
The medical records from the incident support
this assessment. After his 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. I accordingly cannot agree with the
majority's conclusion that Correll has carried his
burden to establish a reasonable probability that he
would have received a lesser sentence if the records
relating to his childhood head injury had been before
the sentencing judge. Indeed, as we have suggested
before, counsel’s failure to present “mitigating evidence
may be irrelevant when no substantial mitigating
evidence is available.” Smith v. Stewart, 189 F.3d
1004, 1013 n. 4 (9th Cir.1999) (citing Gerlaugh v.
Stewart, 129 F.3d 1027, 1042 (9th Cir.1997)). The
medical records, which led the district court to
conclude that Correll was a “highly functioning adult,”
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presented no opportunity for mitigation.
B
In assessing the remainder of Correll’s
mitigating evidence, it is important to emphasize that
the majority's conclusion that Correll has met the
heavy burden of demonstrating actual prejudice
ignores a mountain of precedent which requires us to
consider not only the benefits of the ostensibly
mitigating evidence counsel failed to present, but also
its potential drawbacks. In Darden v. Wainwright, 477
U.S. 168, 186 (1986), trial counsel's failure to present
any mitigating evidence did not constitute deficient
performance because the presentation of such evidence
would have opened the door to damaging rebuttal
evidence. Similarly, in Burger v. Kemp, 483 U.S. 776
(1987), trial counsel's failure to present psychological
records did not amount to ineffective assistance
because the records were “by no means uniformly
helpful to petitioner,” as they suggested “violent
tendencies” that would have undermined counsel's
strategy of portraying petitioner's actions as the result
of another person's “strong influence upon his will.” Jd.
at 793. 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). Most recently, the Supreme Court, in
Wiggins v. Smith, 539 U.S. 510 (2003), repeatedly
emphasized that the Darden-Burger line of cases
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remains in effect. In Wiggins, the Court held that the
petitioner had met his heavy burden of proving actual
prejudice because “Wiggins dlid] not have a record of
violent conduct that the State could have introduced
to offset the mitigating evidence his attorney failed to
offer. Jd. at 537. The majority fails to realize that
unlike Wiggins, much of the new mitigating evidence
Correll offers would have enabled the prosecution to
present very damaging evidence in rebuttal. Indeed,
Correll's mitigating evidence presents precisely the
type of “double edge” the Supreme Court found lacking
in Wiggins's case. Jd. at 535 (distinguishing the
mitigating evidence presented by Wiggins from the
double-edged evidence presented in Burger, 483 U.S.
776, and Darden, 477 U.S. 168).
1
I begin with Correll’s new psychiatric evidence,
which 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 disorder,
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 acknowledged that such a diagnosis
was “only a possibility.” The district 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
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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 support 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
California 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 miulligrams—would
have served as a mild tranquilizer and was far lower
than the dosage that would be utilized to counteract
psychosis (approximately 625 milligrams).
Accordingly, had Correll’s attorney thoroughly
reviewed Correll’s mental health records, he would
have only had credible evidence for the diagnosis he
already suspected: antisocial personality disorder
accompanied by mild depression. As we have
repeatedly acknowledged, a diagnosis of antisocial
personality disorder may be “potentially more harmful
to [al petitioner than [helpful].” Ger/augh, 129 F.3d at
1035. We have explained that, because of its “obvious
countervailing tactical dangers,” such evidence “[iJx its
best possible light, it is a basket of cobras.” Jd.
Accordingly, in a prior case, “we clould] identify no
prejudice flowing from counsel's failure to develop”
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psychiatric testimony relating to a defendant's anti-
social personality disorder. /d.; see also Darden, 477
U.S. at 186-87 (counsel’s decision not to present
mitigating character or mental-state evidence was
sound trial strategy because it would have opened the
door to damaging rebuttal evidence, including a
psychiatric opinion that the defendant had a
sociopathic personality); Daniels v. Woodford, 428 F.3d
1181, 1204, 1210 (9th Cir. 2005) (indicating that
testimony suggesting that a capital defendant is a
“sociopath” is aggravating rather than mitigating);
Beardslee v. Woodford, 358 F.3d 560, 583 (9th Cir.
2004) (acknowledging that an antisocial personality
diagnosis can be damaging to a capital defendant),
Caro v. Woodford, 280 F.3d 1247, 1257 (9th Cir.2002)
(concluding that a psychologist's testimony did not help
the defendant's mitigation case because it tended “to
paint him as a violent psychopath”); 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”); Williams v. Calderon, 52 F.3d 1465, 1472
(9th Cir.1995) (“We have no doubt that ... statements
[suggesting that the defendant is sociopathic] did
nothing to advance Williams’s cause.”).
Furthermore, had counsel 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 minimal mitigating impact these
records carried. The district court “creditled counsel's]
testimony that the prosecutor, Sidney Davis, had a
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reputation for excellent preparation and that she
would have left no stone unturned in her opportunity
to rebut any mitigation evidence presented.”
Accordingly, the district court found that, had Correll’s
attorney presented mental health evidence, this
“highly skilled” prosecutor would have presented a
great deal of aggravating evidence that was not
already before the sentencing judge, specifically: (1)
Correll’s rape of a female psychotic patient while being
treated for his antisocial personality disorder and mild
depression; (2) Correll’s numerous escapes from mental
health treatment facilities and numerous rejections of
institutional efforts to provide him with mental health
treatment; (3) an incident where Correll took hostages
in an armed attempt to escape from a mental health
treatment facility; (4) the underlying factual basis of
Correll’s prior convictions for armed robbery; (5) the
conclusion of a social evaluation at age 18 that Correll
was a danger to the community and was not a
candidate for probation; (6) additional information
showing the efforts of Correll’s parents to deal with his
drug abuse problem and to obtain psychological
treatment for him following his armed threat against a
teacher at school; (7) Correll’s statement that he had
no desire to work but only wished to enjoy himself; and
(8) Correll’s statement that when he committed the
1978 armed robberies that it gave him a strong sense
of power and excitement.
Finally, presentation of Correll’s antisocial
personality disorder at sentencing would have severely
undermined counsel’s strategy of arguing that Correll
was merely following Nabors’s lead during the
commission of the crimes. Had counsel introduced
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evidence of Correll’s antisocial personality disorder
diagnosis, the prosecution would have almost certainly
responded by pointing out that Correll, at age 18,
instigated the armed robbery of three convenience
stores at gunpoint, an effort in which he enlisted the
assistance of his 13-year-old brother and 15-year old
girlfriend. We have previously held that counsel’s
failure to present psychological evidence is not
prejudicial where it would have distracted the fact-
finder from counsel's main mitigation theory and other
mitigation evidence. See Bonin, 59 F.3d at 836 (finding
that counsel's failure to present expert psychological
testimony was not prejudicial because it “would have
distracted jurors ..., reduced [the defendant's]
credibility with the jury, and opened the door to
powerful cross-examination and rebuttal”); see also
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 personality with mild depression. Such
evidence has tremendous potential to be more harmful
than helpful. Further, such evidence would have
opened the door for the prosecution to introduce a
laundry list of extremely damaging information not
already before the sentencing judge and would have
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crippled Correll's chances of convincing the sentencing
judge that he was merely following Nabors's lead
during the crimes.** Accordingly, contrary to 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 sentencing judge.
2
Given the lack of substantial mitigation found in
Correll’s medical and psychiatric records, Correll
cannot claim to have been prejudiced by counsel’s
failure to offer further evidence of Correll’s drug use
beyond what he already presented to the sentencing
judge. 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
24 While the majority concludes that “a significant portion of that
damaging rebuttal evidence was already available through the
pre-sentence report,” Maj. Op. at 5464, it fails to acknowledge
what Correll’s counsel realized, that the introduction of some
potentially mitigating evidence would open the door to a parade of
horribles. For example, while the presentence report summarily
discloses Correll’s conviction of three counts of armed robbery in
1978, Correll’s attorney understandabiy wanted to preclude
damning rebuttal evidence revealing that Correll enlisted his 13-
year-old younger brother and his 15-year-old girlfriend in these
crimes. Furthermore, the presentence report is silent regarding
other extremely damaging information that the prosecutor would
have surely brought to light in rebutting certain potentially
mitigating evidence.
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the offense is a mitigating circumstance ifthe evidence
shows that it significantly impaired the defendant's
capacity to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of the
law.” State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22, 30
(Ariz.1983) (emphasis added). The district court
specifically found that Correll's behavior during the
murders indicated he was not intoxicated:
[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).
Furthermore, no witnesses could have
established that Correll was intoxicated on the date of
the crimes. The best evidence Correll can point to
would have come from his sister, who could have
testified that Correll used methamphetamine in the
morning on the day before the crimes. Correll was not
prejudiced by counsel's decision not to present his
sister's testimony, however, because cross-examination
would have eviscerated any remaining residual doubt
A-9]
in the sentencing judge's mind as to Correll’s guilt.
Correll maintained his innocence throughout the
sentencing proceedings. However, Correll’s sister knew
he was with Nabors at the time of the crimes and that
they had sought a ride out of the state very soon after
the murders occurred. Accordingly, as the district court
found, her testimony would have “totally eliminated
any mitigating weight” and residual doubt from
Correll's assertion at the guilt phase of his trial that it
was his brother, not he, who had committed the
murders. See Allen, 395 F.3d at 1004 (explaining that
“mitigation witnesses proffered by [the defendant]
would not have proved helpful given their own
involvement in [the defendant]'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 sentencing
hearing. See Douglas v. Woodford, 316 F.3d 1079, at
1086 n. 2 (9th Cir.2003) (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 purposes).
Furthermore, even if Correll had established that Day
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would have been available, Day’s testimony that
Correll used methamphetamine more than one year
before the crime would have provided little support for
Correll’s argument that, at the time of the crime, he
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
30.45
The majority attempts to minimize counsel's
complete inability to present any corroborating
evidence that Correll either used methamphetamine on
the date of the crimes or appeared intoxicated to
anyone he encountered that day by instead pointing to
expert testimony that “gross methamphetamine
intoxication, unlike gross alcohol intoxication, is not
necessarily apparent to outside observers.” Maj. Op. at
5463. Consequently, the majority appears content to
rely exclusively on Correll's self-serving statement that
he was intoxicated at the time of the crimes to reach
the conclusion that counsel's failure to present further
evidence of his drug use was prejudicial. I, on the other
hand, would prefer to rely on the credibility findings
made by the district court. Those findings bear
repeating in full:
The Court does not credit ([Correll’s]
unsubstantiated self-report that he abused
25 Indeed, there was evidence in the record that suggests that
Correll was mot intoxicated at the time of the crimes.
Specifically, when Correll and Nabors entered Snelling’s
trailer home, the first thing they asked Snelling was “whether
he had any speed.”
=
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methamphetamine every day before the crimes
were committed. Petitioner chose not to testify
at the evidentiary hearing; Petitioner chose not
to fully cooperate with [the government'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 skepticism. 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 to
fabricate, such self-serving testimony is subject
to skepticism and may be deemed insufficient to
establish mitigation.”)]; see also Bernard Smith
[vy Stewart], 140 F.3d 1263,] 1270 [1998]
(evaluating evidence based on impartial
sentencing judge applying Arizona law); see
generally, Strickland, 466 U.S. at 695 (“The
assessment of prejudice should proceed on the
assumption that the decision maker is
reasonably, 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
A-94
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.”
Because there was no other evidence to establish
that Correll was intoxicated at the time of the crimes, I
cannot agree with the majority that Correll was
prejudiced by counsel's failure to present expert
testimony regarding the effects of methamphetamine
addiction at the sentencing hearing. Conversely, I
agree with the district court that counsel's decision
reflects a reasonable strategic choice. First, the district
court found that “any expert would have to take into
account the underlying facts of the crimes, which show
that [Correll] was involved in deliberative acts, such as
planning, conspiring, avoiding detection, ... awareness
of wrongdoing,” and the fact that he was “generally
orientated [as ] to time, place, and reality.” This would
have materially undermined counsel’s strategy of
portraying Correll as merely following Nabor’s lead.
Second, the district court acknowledged that any
expert “would have been forced to utilize hypothetical
supposition regarding [Correll’s] conduct at the time of
the crimes,” and that “[s]uch hypothetical supposition
would have opened the door for contrary rebuttal
argument and reiteration by the prosecution regarding
the lack of factual support and incredulity of [Correll’s]
alleged intoxicated condition at the time of the crimes.”
Yet it is solely on the strength of such
“hypothetical supposition” that the majority now
declares that the district court was “clearly wrong” to
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conclude that there was no evidence to support
Correll’s assertion that, on the night of the crimes, he
was “grossly intoxicated—to the point of being unable
to appreciate the wrongfulness of his conduct,” as
required for mitigation. Maj. Op. at 5464. The majority
points to the testimony of two drug abuse experts
presented by Correll’s post-conviction counsel at the
evidentiary hearing. The district court, however,
reasonably declined to credit these experts’ opinions
because they 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
Corrections 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
unsubstantiated and unreliable assumptions.
In addition, Correll’s other expert witness on
drug addiction, Dr. Shaw, whom the majority quotes
for the proposition that Correll “may have been
experiencing drug-induced paranoia” at the time of the
murders, Maj. Op. at 5461, was “thoroughly
impeached” at the evidentiary hearing. As the district
court explained, “Dr. Shaw admitted that he only
minimally considered the facts of the crime before
reaching his conclusion.” The district court found Dr.
Shaw's opinion “entirely not credible and wholly
speculative” because, like Dr. Sullivan's opinion, it was
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“based upon hypothetical drug usage at the time of the
crimes that was not established.”
In stark contract to the hypothetical
assumptions on which Drs. Sullivan and Shaw based
their opinions, the district court found that, except for
229 days, Correll was incarcerated throughout the
nine-year period between October 1975 (when he was
first incarcerated, at age 14) and March 1984 (one
month before the murders) and that Correll “was not a
methamphetamine addict or a long-term abuser of
methamphetamine during the time he was
incarcerated.”
Consequeuitly, I agree with the district court
that counsel's failure to present further evidence of
Correll’s drug use was not prejudicial. Counsel had
already stated that Correll had been using alcohol and
drugs and presented Snelling’s statement that he
smelled alcohol on his captor's breath. I agree with the
district court 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 sentencing 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.”
Nevertheless, the majority's independent review
A-97
\
of the expert testimony leads it to conclude that the
evidence “clearly established that methamphetamine
use, in the quantities that Correll indisputably used
the drug on a regular basis, would significantly impair
judgment and consciousness without causing
perceptible symptoms of intoxication.” Maj. Op. at 5464
(emphasis added). I do not quarrel with the notion that
severe use of methamphetamine may significantly
impair judgment and consciousness. Whether the
symptoms of methamphetamine intoxication are
perceptible or not, however, it is quite disputable that
Correll used the drug “on a regular basis” and it is
entirely unproven that Correll used the drug on the
date of the crime.
Accordingly, I share the district court's inability
to find that Correll was prejudiced by counsel's
decision not to present additional evidence of drug use
beyond what he already had.
Finally, Correll has presented no credible
26 ] 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 hfe without
parole.”). The sentencing judge very likely would have taken note
of the fact that Correll never sought treatment for his substance
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.
A-98
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 uncorroborated
allegation that his mother banged his head against a
kitchen table incredible. In regard to the head injury
Correll 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. After reviewing the medical records
presented at the evidentiary hearing, the district court
found that Correll's parents took him to the family
doctor the same 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 majority cites evidence of Correll’s family
history provided by 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
information about Petitioner or appear at sentencing
because it was against California law for him to
discuss former residents of the CYA.”2’ Accordingly,
27While the majority quotes Reverend Curry's testimony that he
“would have unhesitatingly come to help” Correll, see Maj. Op. at
5446 n. 2, 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
(Continued)
A-99
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 purposes).
The majority suggests that counsel should have
presented evidence of Correll's parents' religious
fanaticism as Jehovah's Witnesses, specifically their
decision, “la]fter Correll was shot in the arm at age
14,” to “cut off all communication with their son and
consider| ] him dead, as required by their church's
teachings.” Maj. Op. at 5460. Of course, the majority's
analysis ignores the district court's finding that, by age
14, Correll had “already been arrested several times,”
that his parents had responded by providing him with
“extensive psychological treatment,” and that only
after “another arrest” did his parents allow him to
become a ward of the state.
Similarly, the majority suggests that counsel
should have presented evidence that Correll’s parents
used corporal punishment “in response to his obvious
substance abuse problems.” Maj. Op. at 5460.. Once
again, the majority ignores the district court's finding
(Continued).
people who have been in California Youth Authority [because] [iJt
is forbidden by law.” Reverend Curry testified that while others
could contact him, 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
Reverend Curry's wife, she informed him that the Reverend “didn't
really want to be involved.”
A-100
that, had counsel emphasized such evidence, the
prosecution 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 Correll was expelled from the eighth grade
for threatening a teacher with a knife.
Finally, the majority indicates that evidence of
incest in the family could have served as mitigating
evidence. Maj. Op. at 5459. At the evidentiary hearing,
Correll's sister Patty testified that their father had
been arrested and convicted of child molestation.
Correll's sister Robin testified that she suffered
“repeated and continual” sexual molestation at the
hands of her father and her brothers, specifically
Correll himself. Because the prosecution almost
certainly would have presented such evidence in
rebuttal, Correll cannot claim that he was prejudiced
by counsel's failure to present evidence of incest as a
mitigating fact.
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 childhood,
he would have received a lesser sentence.
Ill
The sum of the majority’s analysis in this case
simply eviscerates the requirement that a habeas
petitioner demonstrate actual prejudice in order to
prevail on a claim for ineffective assistance of counsel.
A-101
See Wiggins, 539 U.S. 510. Not satisfied with merely
reconstructing the facts, the majority also reinvents
Supreme Court authority, asserting that Correll
presented evidence sufficient to establish a
presumption of prejudice under Wiggins, and that this
“classic mitigation evidence ... certainly had the
potential to persuade at least one fact-finder that
Correll was, at the time of the crimes, incapable of
appreciating the wrongfulness of his conduct.” Maj. Op.
at 5462. These statements, of course, are 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 holding that Wiggins had met his burden to
prove actual prejudice, the Supreme Court explained
that Wiggins “experienced severe privation and abuse
in the first six years of his life while in the custody of
his alcoholic, absentee mother,” that he suffered
“physical torment, sexual molestation, and repeated
rape” during his subsequent years in foster care, and
that he spent time homeless. /d. at 512. Perhaps most
critically, Wiggins was mentally retarded. Jd.
In stark contrast, Correll’s history, which
reveals that he was “a highly functioning adult” at the
time of his crimes, comes nowhere close to the
“powerful mitigating narrative” present in Wiggins. Id.
at 513. Furthermore, the Supreme Court noted that
Wiggins lacked a “record of violent conduct,” id. at 537,
and found no evidence “suggestling] that a mitigation
case, in its own right, would have been
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counterproductive.” Jd. at 525. Correll’s history, on the
other hand, littered with numerous examples of his
violent and destructive lifestyle, stands at the very
opposite end of the spectrum. Indeed, the district
judge, who was in the best position to evaluate all the
evidence, concluded that, after considering both the
positive and negative repercussions of Correll’s new
evidence, the balance of aggravation and mitigation
had “barely been altered.”
Viewed against the standard set forth by Strickland
and rearticulated in Wiggins, the majority's conclusion
that the insubstantial mitigating evidence Correll now
offers was sufficient to meet the “highly demanding
and heavy burden of establishing actual prejudice” not
only misapplies the test these cases impose, it
essentially writes the prejudice requirement out of our
circuit jurisprudence altogether.
Accordingly, I must respectfully dissent.
B-]
APPENDIX B
__Filed __Lodged
___Received _ Copy
MAR 05 2003
Clerk U S DISTRICT COURT
DISTRICT OF ARIZONA
By
DEPUTY
IN THE UNITED STATES DISTRICT COURT,
FOR THE DISTRICT OF ARIZONA
Michael Emerson Correll,)
) No. CV 87-1471-PHX-
) SMM
Petitioner, )
v. ) eath Penalt
)
Charles L. RYAN,’ et al. , )
) MEMORANDUM OF
Respondents. ) DECISION AND
j ORDER
This matter is before the Court following a
remand from the Ninth Circuit Court of Appeals for an
evidentiary hearing and determination whether
Petitioner's trial counsel rendered ineffective
assistance of counsel at sentencing. See Correll v.
1 Charles L. Ryan is substituted for his predecessor, Terry
Stewart, as Acting Director, Arizona Department of Corrections.
Fed.R.Civ.P.25(d)(1).
B-2
Stewart, 137 F.3d 1404 (9th Cir. 1997). The Court has
conducted a nine day evidentiary hearing regarding
whether sentencing counsel's performance was
deficient and, if so, whether Petitioner was prejudiced
by such performance. In accordance with the mandate
established by Strickland v. Washington, 466 U.S. 668
(1984), and its progeny, the Court concludes that
sentencing counsel’s performance was deficient in only
two sentencing phase aspects, but that Petitioner did
not suffer prejudice. Therefore, Petitioner is not
entitled to habeas relief.
Prior to the evidentiary hearing, Petitioner filed
a written waiver stating that he did no wish to be
present or participate at the evidentiary hearing. (File
doc. 269.) At the beginning of the evidentiary hearing,
Petitioner, appearing by video conference, reiterated
his request not t be present at or participate in the
hearing. The Court questioned Petitioner and his
counsel and determined that Petitioner validly waived
his right to be present at the hearing. Subsequently,
at the evidentiary hearing, the Court received
testimony from Stephen Collins, Petitioner’s trial
counsel; Edward Yue, a trial investigator for
Petitioner; Mary Durand, Petitioners habeas
mitigation specialist; Brian Kellner, Petitioner’s
habeas investigator: Robin (Correll) Miranda and
Patricia (Correll) Wilson, Petitioner’s sisters; Dawn
Day, friend of Petitioner; Robert Curry, Chaplain at
California Youth Authority; Susan Curry wife of
Champlain Curry; Dr. Judith Becker, Dr. Anne
Herring, Dr. C.J. Shaw, Dr. John Sullivan, Petitioner’s
mental health and drug abuse experts: Dr. John
Scialli, Dr. Daniel Martell, Dr. Daryl Matthews,
B-3
Respondent's mental heath and drug abuse experts;
and Timothy Ford, Esq., Petitioner’s ineffective
assistance of expert.
I. BACKGROUND FACTS
Petitioner was tried and convicted in a triple
homicide which occurred on April 12, 1984, Maricopa
County, Arizona. In the early morning hours of April
12, 1984, Petitioner and John Nabors went to the
trailer home of Guy Snelling, a co-worker of Nabors.
Debra Rosen, Snelling’s girlfriend, was with Snelling in
the trailer. Nabors pretended to be in urgent need of
help and persuaded Snelling to let him in the trailer.
Once in the trailer, Nabors pulled a gun on Snelling
and demanded money. Petitioner tied Rosen’s and
Snelling’s hands behind their backs with duct tape and
led Rosen into the bedroom.
Later. Robin Cady, who was renting a room from
Snelling, and Shawn D’Brito, Cady’s boyfriend,
returned to Snellings home. Petitioner then tie
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