Opinion
CV-03-00542-TUC-RCC
10-19-2022
Scott Drake Clabourne, Petitioner, v. David Shinn, et al., Respondents.
DEATH PENALTY CASE
ORDER
Honorable Raner C. Collins, Senior United States District Judge
Petitioner Scott Drake Clabourne is an Arizona death row prisoner. The Court denied his Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on September 09, 2009. (Doc. 41.)In denying habeas relief, the Court dismissed Claim 1 of the Amended Petition-alleging counsel was ineffective at Clabourne's resentencing for not seeking to suppress his confession-as procedurally defaulted. (Id. at 17.) Under then-governing law, the Court rejected Clabourne's argument that the ineffective assistance of post-conviction relief (PCR) counsel established cause and prejudice to excuse the default. (Id. at 15-16.)
“Doc.” refers to numbered documents in this Court's electronic case docket.
While Clabourne's appeal from the Court's decision was pending before the Ninth Circuit, the United States Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012). The Court held in Martinez that a state PCR counsel's ineffectiveness in failing to raise a claim of ineffective assistance of trial counsel can excuse a procedural default of that claim. Id. at 17. Thus, the Ninth Circuit vacated the denial of Claim 1, and remanded the claim to this Court for further proceedings in light of Martinez. Clabourne v. Ryan (Clabourne IV), 745 F.3d 362, 383 (2014) overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).
This Court ordered Clabourne to file a supplemental brief “addressing whether cause exists under Martinez to excuse the procedural default of Claim 1, and whether Petitioner is entitled to habeas relief under 28 U.S.C. § 2254 on the Claim[].” (Doc. 52 at 2.) The Court also directed Clabourne to include any request for evidentiary development with his supplemental brief. (Id.)
Briefing is complete on the Martinez issue. (Docs. 71, 81, 86, 91.) After fully considering the briefs and arguments, the Court finds that Clabourne has failed to demonstrate cause and prejudice to excuse the procedural default of the remanded claim and is not entitled to relief on Claim 1.
The background is based on the Court's review of the record, the Arizona Supreme Court's opinions upholding Clabourne's conviction, State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984), and death sentence following resentencing, State v. Clabourne (Clabourne III), 194 Ariz. 379, 983 P.2d 748 (1999), and the Ninth Circuit's opinions on appeal from this Court's decisions in Clabourne's habeas petitions, Clabourne v. Lewis (Clabourne II), 64 F.3d 1373 (9th Cir. 1995) (appeal of habeas denial after first sentencing in CV 91-465-RMB) and Clabourne IV, 745 F.3d 362 (9th Cir. 2014) (appeal from habeas denial following resentencing in CV 03-542-RCC)).
On the evening of September 18, 1980, Laura Webster, a 22-year-old student at the University of Arizona, entered the Green Dolphin Bar with a friend. The next day, Webster's body was found near the Santa Cruz River, naked and wrapped in a bloody sheet with a blue and white bandana tied tightly around her neck. An autopsy revealed that she had been strangled and then stabbed in the chest. There was also evidence of oral, anal, and vaginal intercourse just prior to death.
No arrests were made for over a year. In August 1981, Clabourne's girlfriend, Shirley Martin, contacted Tucson Police Detective Luis Bustamante and informed him that Clabourne had told her that he had killed a woman he had met in a bar. Clabourne told Martin that he had gone to the bar with two friends. The friends allegedly forced Clabourne to ingest some drugs which caused him to lose control so that he was unable to resist their command to kill the victim.
A. Clabourne's Confession
On October 12, 1981, Detective Bustamante interviewed Clabourne at the Pima County Jail, where Clabourne was incarcerated on unrelated burglary charges. He was represented by counsel on the burglary charges and had filed a written invocation of his right to remain silent or have an attorney present for questioning. After receiving his Miranda warnings, Clabourne agreed to discuss the murder. He told Bustamante that on the evening of September 18, 1980, he was asleep at the Salvation Army halfway house where he had been staying. Larry Langston and a man that Clabourne knew as Bob, later identified as Ed Carrico, woke him up and the three of them drove to the Green Dolphin Bar. There they met Webster and convinced her to go to a party with them. After they all left and began driving around, Langston stopped the car, pulled Webster out and beat her. He threw her back into the car, and they drove to where Langston had been staying. During this time Webster pleaded with Clabourne to protect her.
Miranda v. Arizona, 384 U.S. 436 (1966).
After arriving at the house, Langston beat Webster again and forced her to strip and serve the men drinks. Over a period of six hours, Langston and Carrico repeatedly beat and raped Webster. During this time, Clabourne also had sex with Webster but claimed it was consensual. At several points during the ordeal, Webster again pleaded with Clabourne to protect her from the others, but he told her he couldn't do anything because he was outnumbered.
At the end of the evening, Langston told Clabourne to kill Webster. Clabourne maintained that he was in fear of his own life and wanted to let her escape but was scared Langston would kill him. He strangled her with a bandana that he carried with him. He then stated that Langston handed him a knife; Clabourne stabbed Webster twice and the three men wrapped her in a sheet and threw her in the riverbed.
Prior to trial, Clabourne filed a motion to suppress his confession. He gave two reasons for the request. First, he alleged that he had made an involuntary waiver of his Fifth and Sixth Amendment Constitutional rights. Second, he argued that because he was represented by counsel on another matter, the detectives should neither have questioned him nor accepted his waiver without his attorney present. The trial court rejected both arguments and allowed the confession to be admitted into evidence in the guilt phase of Clabourne's trial through the testimony of Detective Bustamante.
The Arizona Supreme Court affirmed the trial court's decision, rejecting Clabourne's argument that once a defendant has received an attorney on an unrelated charge he cannot be questioned or waive the assistance of counsel without that attorney being present. Clabourne 1, 142 Ariz. at 341, 690 P.2d at 60. The court further found “sufficient evidence to indicate that defendant's waiver of his rights was intelligently, knowingly, and voluntarily made, and the court did not abuse its discretion in denying defendant's motion to suppress.” Id. at 61, 690 P.2d at 342.
B. Trial and Sentencing
Clabourne was charged with first degree murder, three counts of sexual assault, and kidnapping. He was tried alone after Langston and Carrico both negotiated plea agreements with the state. Clabourne was found competent to stand trial by court-appointed psychiatrists, Drs. John LaWall and Edward S. Gelardin.
Langston was sentenced to life in prison; Carrico got probation.
The tape recording of Clabourne's confession was played at trial and the jurors were provided written copies of the transcript when listening to the recording. (See Appx. 243-44.)
Clabourne supports his supplemental brief with an appendix consisting of records from the state and federal proceedings. Each page of the record is assigned an appendix number, which the Court refers to as “Appx [1-1486].” Clabourne's new evidence is appended to his brief and designated by both an exhibit number and a sequentially numbered exhibit page number, which the Court refers to as “Ex. [1-15] at Ex. p. [1-172].” The assigned numbers of the sequentially numbered appendix attached to Clabourne's reply overlap with the numbers assigned to the appendix attached to his supplemental brief and are referred to by the Court as “Reply Appx [1380-1474].” Respondents support their response with exhibit letters assigned to separate documents that the Court refers to as “Resp. Ex. [A-X] at [exhibit page number].” “RT” refers to the reporter's transcripts from Clabourne's state court proceedings and the evidentiary hearing in federal court.
The prosecution relied primarily on Clabourne's taped confession, but also introduced evidence of other incriminating statements Clabourne made after the murder. Martin testified that Clabourne had admitted committing the crime on several occasions (although his accounts were not consistent). Barbara Bailon, who worked at the Salvation Army halfway house, testified that Clabourne had confessed to killing a girl. Scott Simmons, a Pima County Jail Corrections officer, testified that Clabourne told him, spontaneously, about the crime approximately a month before giving his taped confession. Clabourne told him he and another man picked a girl up from a bar and, while driving to a friend's house, the girl begged Clabourne not to let the other man hurt her, that she was afraid he might kill her. At the house, they continued to “party, drink and carry on” and Clabourne indicated he and the other man had sex with the girl. (Appx. 319.) Clabourne confessed to then strangling her. He also stated the other man gave him a knife and told him to kill her, though he did not say anything about stabbing the victim. (Appx. 321.) A second corrections officer, Dale Stevenson, testified that he overheard Clabourne tell another inmate, “Yeah, I raped her. She didn't want it but I know she liked it.” (Appx. 347.)
The State introduced other testimony to corroborate Clabourne's confession. Martin testified that the blue and white bandana found tied around Webster's neck was similar to one that belonged to Clabourne. The owner of the house where the rape and murder occurred was an acquaintance of Langston's and had allowed Langston to housesit while she was away at the time of the murder. She identified the sheet in which Webster's body had been found and testified that the mattress on one of her beds had been turned over to conceal large stains, which were later determined to be bloodstains. (Appx. 147-48, 151.) Webster's friend Rick Diaz identified Clabourne as one of the men who had left the Green Dolphin with Webster.
Conceding that the offense was an “atrocity” (Appx. 33) and that “[Clabourne] definitely was involved and committed this wrong over Laura Webster” (Appx. 552), counsel offered only an insanity defense (see Appx. 24). Because Clabourne advanced an insanity defense, Drs. LaWall and Gelardin examined his mental state. Both testified at trial that he was legally sane at the time of the offense. Dr. LaWall opined that Clabourne had an antisocial personality disorder, which he explained was a learned pattern of behavior and not a psychotic illness. Clabourne called Dr. Sanford Berlin, a psychiatrist who had treated him in 1975 for mental problems. Dr. Berlin said he was unable to determine what Clabourne's state of mind had been when he committed the crimes.
Rejecting Clabourne's insanity defense, the jury convicted Clabourne of all counts. A sentencing hearing was held before Pima County Superior Court Judge Richard N. Roylston, who had presided at trial. The trial court found that Clabourne had committed the offense in an especially heinous, cruel, and depraved manner under A.R.S. § 13-703(F)(6). (Resp. Ex. F at 17.) Though counsel “suggested possible grounds for mitigation” he “gave the court no reasons to find them.” Clabourne III, 194 Ariz. at 382, 983 P.2d at 751. Clabourne was sentenced to death, and his capital sentence was affirmed by the Arizona Supreme Court. He sought but failed to obtain state postconviction relief.
At the time of Clabourne's trial and his resentencing, Arizona law required trial judges to make all factual findings relevant to the death penalty and to determine the sentence. Following the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that a jury must determine the existence of facts rendering a defendant eligible for the death penalty, Arizona's sentencing scheme was amended to provide for jury determination of eligibility factors, mitigating circumstances, and sentence.
At the time of Clabourne's offense, Arizona's capital sentencing scheme was set forth in A.R.S. §§ 13-703 and 13-703.01 to -703.04. It is presently set forth in A.R.S. §§ 13-751 to -759. The Court refers throughout this order to the statutes in effect at the time Clabourne committed the murder.
Clabourne then sought federal habeas relief. The Court appointed attorneys Michael Bloom and Carla Ryan to represent Clabourne. In September 1993, the Court held an evidentiary hearing to allow Clabourne to present evidence in support of his claim that he received ineffective assistance of counsel at his initial trial and sentencing. At the hearing, Drs. LaWall, Gelardin, and Berlin again testified, this time after reviewing new documents compiled during the habeas investigation that provided a more complete picture of Clabourne's medical history. Based on this additional information, Drs. Gelardin and Berlin opined that Clabourne probably suffered from schizophrenia. (Appx. 691, 737-38.) They testified that this condition rendered Clabourne susceptible to impulsive behavior and easy manipulation by Langston, whom they characterized as the mastermind in Webster's murder. (Appx. 696-700, 741, 748-49.) Dr. LaWall believed it was more likely that Langston, whom he had also interviewed, manipulated Clabourne, than the other way around. (Appx. 628-29.) Dr. LaWall, however, reiterated his belief that Clabourne was sane at the time of the offense. (Id. at 645.)
Clabourne v. Lewis, CV 91-465-RMB.
Detective Bustamante also testified at the federal habeas evidentiary hearing. He described Langston as a manipulative individual whom Bustamante believed had “killed before or would have killed again” because it was his fantasy to do so. Bustamnate opined that Langston manipulated others to do what he wanted them to do, and in Bustamante's opinion was probably a “psychopath.” (Appx. 772-73.) Bustamante described Clabourne as a “follower” who was used by Langston to advance Langston's fantasies. (Appx. 773, 776.) According to Bustamante, Langston was the “major” in planning the murder and Clabourne was the “minor.” (Appx. 777.) However, Bustamante agreed that Clabourne “went along” with the murder of his own volition. (Id.)
A statement by George Breshears, a Pima County Jail inmate, was admitted at resentencing. The admissibility of the statement had been limited in federal court to the effect it had on Dr. LaWall's testimony. (Appx. 627.) Breshears related to law enforcement purported details of a statement Langston made to him in the jail concerning the murder. Breshears stated that Langston called both Clabourne and Carrico “morons” who could be manipulated by Langston. (Appx. 973.)
The Court granted Clabourne habeas relief on the grounds that Clabourne received ineffective assistance of counsel at sentencing. The Court found that trial counsel was ineffective because he failed to obtain medical records that supported Clabourne's claims that he suffered from mental illness and because he failed to properly prepare the expert witnesses in support of mitigation. The Ninth Circuit affirmed that such “total absence of advocacy” “amount[ed] in every respect to no representation at all.” Clabourne II, 64 F.3d at 1387 (quotations omitted).
Clabourne was resentenced in 1997. In lieu of live testimony, counsel submitted the records and the transcript from the evidentiary hearing before the district court. (See Appx. 601-02, 981-82, 1324.) At oral argument before Judge Roberto Montiel, Clabourne's counsel urged several points in mitigation. Counsel prefaced his argument by summarizing the “reality” of the case, that Clabourne, with a “hulking body and the mind of a seven or eight year old child,” was “not the most responsible person” for the “horrible, horrible crime.” (Appx. 1387-88).
After several Pima County Superior Court judges recused, Clabourne's resentencing was assigned to Santa Cruz County Superior Court Judge Roberto Montiel.
Counsel focused chiefly on the experts' diagnosis of Clabourne's mental deficiencies and schizophrenia. (Appx. 1387-98, 1401-06.) Counsel also cited duress and Clabourne's age as additional statutory mitigators and urged Clabourne's mental problems-their impact on his tendency toward passiveness, impulsiveness, and easy manipulation by others-as nonstatutory mitigation. (Appx. 1397-98, 1401-02.) Counsel further asserted as mitigating information Clabourne's dysfunctional family life, including his treatment for mental health problems from an early age and the fact that he was raised in a military family that had to move frequently, inhibiting his ability to form lasting relationships. (Id.) Counsel also argued that the sentencing disparity between codefendants was a mitigating circumstance. (Appx. 1402-03.)
The State presented no new evidence in support of the (F)(6) aggravating factor or any other aggravating circumstance. See Clabourne III, 194 Ariz. at 384, 983 P.2d at 753.
The trial court resentenced Clabourne on August 14, 1997. Judge Montiel stated that he had considered the record “in its totality,” including the record of the habeas corpus evidentiary hearing, the trial record, the presentence reports, and the other documents proffered by Clabourne. (Appx. 1433.) The trial court found that the State had shown beyond a reasonable doubt that the murder of Webster was especially cruel and demonstrated a heinous and depraved state of mind in satisfaction of A.R.S. § 13-703(F)(6). (Appx. 1434.)
With respect to cruelty, the court stated:
The offense was committed in a cruel manner, because the victim consciously suffered physical and mental pain, the suffering of the victim was beyond the norm experienced by other victims of first-degree murder, and the defendant knew or should have known the effect his actions would have on that victim.
The victim suffered physical and mental pain because she was beaten, raped, and humiliated by being forced to run naked among three men during a period of approximately six hours.
The autopsy report indicated many bruises and contusions on the body, indicating a great deal of self-defense struggle on the part of the victim and extensive beatings during the course of six hours.
There was further evidence of conscious suffering because a forensic expert testified that Laura Webster was still alive when stabbed by the defendant.
The foregoing evidence of conscious suffering of mental and physical pain also supports a finding that such suffering was beyond the suffering experienced by other victims of first-degree murder.
The evidence also establishes that the [defendant] was aware of the
effect of his actions upon the victim because the victim asked for help and protection from the defendant, which pleas were not heeded by the defendant.
The evidence is clear that the victim was conscious for most, if not all, of the six-hour period.(Appx. 1435-36.) Although the court found cruelty alone sufficient to establish the (F)(6) aggravator, it also found that the murder had been committed in an especially heinous and depraved manner. (Appx. 1436.) Though this finding was based in part on Clabourne's statements to Detective Bustamante, the Court also found that Clabourne “was also a witness to the repeated beatings and sexual assaults by other co-defendants” and“[a]t the very least, this defendant displayed a callous indifference to Laura Wedster's [sic] life, demonstrating a heinous and depraved state of mind.” (Appx. 1437.)
With regard to mitigation, the court found that Clabourne's age at the time of the offense (20) was a statutory mitigating factor under A.R.S. § 13-703(G)(5). (Appx. 1438.) However, it rejected Clabourne's other alleged statutory factors:
[T]he Court finds that, despite the evidence of the defendant's mental illness and use of [T]horazine for periods prior to and after the murder, the defendant has not met the burden of proving by a preponderance of the evidence that at the time of the murder the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law were significantly impaired, as expressed in A.R.S. 13-703(G)(1). Dr. Gelardin testified that the defendant was not suffering from a psychotic condition or episode at the time of the criminal offense.
That, despite the evidence that Mr. Clabourne killed the victim at the urging of the co-defendant Larry Lynn Langston, the defendant has failed to prove by a preponderance of the evidence that he was under unusual or substantial duress, as expressed in 13-703(G)(2). His sheer size and previous behavior indicates that he could be manipulated but only when he wanted to be manipulated.(Appx. 1437-38.)
The court also considered the nonstatutory mitigation urged by Clabourne and found the following proven by a preponderance of the evidence: that Clabourne has a passive personality, is impulsive, and is easily manipulated by others, and that life imprisonment would be less costly than capital punishment. (Appx. 1438-1440.) It held, however, that the mitigating evidence did not outweigh the aggravating circumstances and again sentenced Clabourne to death. (Appx. 1440.)
On appeal, the Arizona Supreme Court independently reviewed the trial court's findings of aggravation and mitigation and the propriety of the death sentence, and affirmed Clabourne's death sentence. Clabourne III, 194 Ariz. at 390, 983 P.2d at 759. The court upheld the cruelty finding, describing the circumstances of the murder as follows:
[C]ruelty involves pain and distress visited upon the victim. This distress includes mental anguish.... [Here,] [Webster] suffered both mentally and physically. She was beaten and forced to undress and serve [Clabourne] and his friends drinks. In addition, she was raped over the course of a six hour period. She was obviously in great fear [for] her life as she begged [Clabourne] to protect her. The medical examiner testified that [Webster] had put up a tremendous struggle while being strangled, indicating a good deal of suffering. This evidence was sufficient to establish cruelty.Clabourne III, 194 Ariz. 384, 983 P.2d at 753 (citing Clabourne 1, 142 Ariz. at 347-48, 690 P.2d at 66-67). Affirming the death sentence on the cruelty prong alone, the court did not address new arguments as to the heinousness and depravity of the murders raised by the State for the first time on appeal. Id.
The court next addressed the statutory mitigation urged by Clabourne, including: (1) whether Clabourne's mental problems significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law under A.R.S. § 13-703(G)(1); (2) whether he was under “unusual or substantial duress” at the time of the murder under § 13-703(G)(2); and (3) his age under § 13-703(G)(5). Id. at 384-87, 983 P.2d at 753-56.
With respect to the diminished capacity mitigator, the court determined that Clabourne had not established that his mental deficiencies rendered him unable to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The court noted that, although Drs. Gelardin and Berlin believed Clabourne was schizophrenic, none of the experts could say he was “psychotic” at the time of the killing. Id. at 385, 983 P.2d at 754. The court found indicative of his ability to appreciate the wrongfulness of his conduct the fact that he tried to conceal the crime by hiding the victim's body and his statement to police that he had wanted to help Webster escape. Id. The court further found that Clabourne had failed to demonstrate any impairment to his ability to control his conduct. Id.
Regarding duress, the court determined that Clabourne had not established he was under unusual or substantial duress when he killed Webster. Although conceding that Langston may have been the mastermind in the murder, the court noted that Clabourne's own confession “shows he was a willing and active participant and was neither induced nor coerced to act contrary to his free will.” Id. at 386, 983 P.2d at 755. The court also noted that Clabourne's age was mitigating but accorded it little weight considering his “average level of intelligence, [] criminal history and [the fact] he was a major participant in the crime.” Id.
Regarding nonstatutory mitigating factors, the Arizona Supreme Court first addressed Clabourne's mental problems, according “some” weight to his schizophrenia and personality traits of being passive, impulsive, and easily manipulated. Id. at 387, 983 P.2d at 756. However, the court found such mitigation “negligible” when weighed against evidence of Clabourne's “active participation throughout the six-hour ordeal and the fact that he personally strangled and stabbed Webster.” Id. The court also accorded Clabourne's intoxication claim little weight, noting that his “detailed recollection of the events of the evening of Webster's murder, as told to Detective Bustamante more than a year after the murder occurred, belies his claim that he was impaired.” Id. The court declined to find Clabourne's dysfunctional family history as a mitigating factor, noting that he had failed to establish how this background affected his behavior. Id. Likewise, the court found no mitigating value relevant to his co-defendants' sentences, noting that “only an unexplained disparity . . . may be a mitigating circumstance. . . . Here the disparity is explained: Carrico was not charged with murder and Langston pled guilty.” Id. at 388, 983 P.2d at 757 (internal citation omitted). Finally, the court declined to find as mitigation the economic cost of the death penalty because it “is unrelated to Clabourne, his character or record, or the circumstances of his offense.” Id.
Weighing all the evidence in mitigation against the (F)(6) aggravating factor, the Arizona Supreme Court concluded that the mitigation was “insufficiently substantial to warrant leniency.” Id.
Clabourne was appointed new counsel for state post-conviction proceedings. Postconviction counsel filed several petitions that did not comply with Arizona's procedural requirements. The Arizona trial court dismissed all claims with prejudice after giving Clabourne's newly appointed counsel several opportunities to cure the deficiencies. Counsel had asserted many claims in the deficient petitions, but he raised only one issue on appeal from the final dismissal of the petition: the constitutionality of Clabourne's judge-imposed capital sentence in light of Ring v. Arizona, 536 U.S. 584 (2002). The Arizona Supreme Court denied discretionary review.
Clabourne initiated the current federal habeas proceeding in this Court on October 29, 2003. (Doc. 1.) Among other claims, Clabourne asserted his resentencing counsel was ineffective for failing to seek suppression of his confession. This Court dismissed the claim, noting that it was procedurally defaulted because it had not been presented to the state courts on appeal or during PCR proceedings following the resentencing and, under then-governing law, rejected Clabourne's argument that the ineffectiveness of his state PCR counsel excused the procedural default of the claims. (See Doc. 41 at 16.)
The Ninth Circuit remanded the claim, ruling that the Supreme Court's intervening decision in Martinez permits Clabourne to establish cause and prejudice to excuse the procedural default if he can establish that PCR counsel, in failing to raise the confession-related ineffective assistance claim (“IAC”), was ineffective under Strickland, 466 U.S. 668 (1984). Clabourne IV, 745 F.3d at 382-83.
In remanding the case, the Ninth Circuit explained there was “no dispute . . . about the deficient performance of Clabourne's post-conviction counsel, as the State concedes that his representation was deficient.” Id. at 378. This Court, therefore, is tasked on remand with considering “whether Clabourne can establish that he was prejudiced by post-conviction counsel's failure to exhaust” his confession-based claim of “ineffective assistance of counsel at resentencing.” Id.
II. DISCUSSION
Clabourne contends that counsel was ineffective at his 1997 resentencing for not seeking to suppress his confession, which he alleges was obtained in violation of his Fifth Amendment right to counsel. (Doc. 27 at 11-15.) He argues that without the confession there was insufficient evidence to establish cruelty under A.R.S. § 13-703(F)(6), the sole aggravating factor relied upon by the Arizona Supreme Court in affirming his death sentence. (Id.) On remand, Clabourne submits he has presented cause to excuse the procedural default of Claim 1 and is further entitled to relief on this claim. (Doc. 71 (Supplemental Brief).)
Respondents argue that the default of Claim 1 cannot be excused under Martinez because Clabourne has not established that post-conviction counsel was ineffective or that the underlying IAC claim is substantial.
A. Applicable law
1. Martinez v. Ryan
Federal review is generally unavailable for a claim that has been procedurally defaulted. In such situations, review is barred unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice that excuses the default. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Coleman held that ineffective assistance of counsel in post-conviction proceedings cannot establish cause for a claim's procedural default. Id.
In Martinez, the Supreme Court announced a new, “narrow exception” to that rule. The Court explained that:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.566 U.S. at 17; see also Shinn v. Ramirez, 142 S.Ct. 1718, 1733 (2022).
Accordingly, under Martinez, an Arizona habeas petitioner may establish cause and prejudice for the procedural default of a claim of ineffective assistance of trial counsel by demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing Martinez, 566 U.S. at 14); Atwood v. Ryan, 870 F.3d, 1033, 1059-60 (9th Cir. 2017).
As Respondents acknowledge, the Court is bound by Martinez. (See Doc. 81 at 22 n.9.) The Court, however, is compelled to address Respondents' unsupported but oft-repeated suggestion that Martinez was wrongly decided because PCR counsel strategically ignore meritorious IAC claims, in this case for instance by filing four procedurally deficient PCR petitions resulting in dismissal of all of Clabourne's PCR claims, for a chance at federal review in order to place their clients “in better positions than inmates who follow appropriate procedures,” thereby “frustrating] AEDPA's goals of funneling claims to state court and thereby promoting comity, finality, and federalism. (Doc. 81 at 22 n.9) (citations omitted). Though Justice Thomas writes in Ramirez that “broadly available habeas relief encourages prisoners to sandbag state courts in this manner,” see Ramirez, 142 S.Ct. at 1739, habeas relief as a constitutional corrective process is far from “broadly available.” See Overstreet v. Wilson, 686 F.3d 404, 410 (7th Cir. 2012) (Wood, J., dissenting) (“No one who has followed the law of federal postconviction relief for state prisoners since 1996, when the Anti-Terrorism and Effective Death Penalty Act (AEDPA) went into effect, is under the impression that this is a readily available remedy.”) As Justice Sotomayor noted in her dissent in Ramirez such a claim is particularly “odd” in Arizona, because:
It is [the] State's decision to divert trial-ineffectiveness claims from direct appeal to postconviction review, and then to provide ineffective postconviction counsel, that results in the failure to raise or develop such claims before state courts. No habeas petitioner or postconviction counsel could possibly perceive a strategic benefit from failing to raise a meritorious trial-ineffectiveness claim in an available forum.Ramirez, 142 S.Ct. at 1749 (Sotomayor, J., dissenting). See also Morrison, 477 U.S. at 382 (“[I]t is virtually inconceivable that an attorney would deliberately invite the judgment that his performance was constitutionally deficient in order to win federal collateral review for his client. ... No reasonable lawyer would forgo competent litigation of meritorious, possibly decisive claims on the remote chance that his deliberate dereliction might ultimately result in federal habeas review.”) Rather, as Clabourne noted in his Amended Habeas Petition, “Arizona has rid itself of IAC claims by putting them into a special category of claims not entitled to assistance of counsel. It made matters worse by appointing inexperienced counsel. It further made matters worse by clarifying that it would not consider the merits of even substantial constitutional claims waived by the not necessarily competent counsel it appointed to handle those claims. Arizona cannot be heard now to complain that it never got a chance to address the IAC claims before they were raised in district court.” (Doc. 25 at 15.)
To establish “cause” under Martinez, a petitioner must demonstrate that PCR counsel was ineffective under Strickland. Clabourne IV, 745 F.3d at 377. Strickland requires a demonstration “that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Id. at 377 (citation omitted).
To establish “prejudice” under the second prong of Martinez's “cause and prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial.” Id. In Martinez, the Supreme Court defined a “substantial” claim as a claim that “has some merit,” noting that the procedural default of a claim will not be excused if the IAC claim “is insubstantial, i.e., it does not have any merit or . . . it is wholly without factual support.” Martinez, 566 U.S. at 14-16.
The standard for finding a claim “substantial” is analogous to the standard for issuing a certificate of appealability. Id. at 14; see Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013). Under that standard, a claim is “substantial” if “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
A finding of “prejudice” for purposes of the “cause and prejudice” analysis, which requires only a showing that the underlying claim of ineffective assistance of trial counsel is substantial, “does not diminish the requirement . . . that petitioner satisfy the ‘prejudice' prong under Strickland in establishing ineffective assistance by postconviction counsel.” Clabourne, 745 F.3d at 377.
The Ninth Circuit has offered guidance in assessing whether “cause” exists under Martinez. In Atwood, for example, the court explained:
In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance of state habeas counsel under Strickland, we must evaluate the strength of the prisoner's underlying ineffective assistance of trial counsel claim. If the ineffective assistance of trial counsel claim lacks merit, then the state habeas counsel would not have been deficient for failing to raise it. Further, any deficient performance by state habeas counsel would not have been prejudicial, because there would not be a reasonable probability that the result of the post-conviction proceedings would have been different if the meritless claim had been raised.870 F.3d at 1059-60; Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021); see Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel who was not constitutionally ineffective.”).
In Runningeagle v. Ryan, 825 F.3d 970 (9th Cir. 2016), the court addressed the standard necessary to find PCR counsel's performance prejudicial. The court explained that although the prejudice at issue under Martinez is that in PCR proceedings, this is a “recursive standard”:
It requires the reviewing court to assess trial counsel's as well as PCR counsel's performance. This is because, for us to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a trial-level IAC claim, we must also find a reasonable probability that the trial-level IAC claim would have succeeded had it been raised.Id. at 982; see Murray v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018).
Finally, with respect to claims that were not adjudicated on the merits, “a federal court may not hold an evidentiary hearing-or otherwise consider new evidence,” unless the “stringent requirements” of 28 USC § 2254(e)(2) are met. Ramirez, 142 S.Ct. at 1739.
2. Ineffective of assistance of counsel
Claims of ineffective assistance of counsel are governed by the principles set out in Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88. The inquiry under Strickland is highly deferential. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15, 16-17 (2009) (per curiam). The “standard is necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89.
Deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). Even under de novo review, the standard for judging counsel's representation is a most deferential one. Richter, 562 U.S. at 105.
With respect to Strickland's second prong, a petitioner must affirmatively prove prejudice by “show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694. The petitioner “bears the highly demanding and heavy burden [of] establishing actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams (Terry) v. Taylor, 529 U.S. 362, 394 (2000)). “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693); see Hooper, 985 F.3d at 628.
B. Additional background
In Clabourne's first round of habeas proceedings, he challenged the introduction of his confession, arguing it should have been suppressed because it was obtained in violation of the prophylactic rule in Edwards v. Arizona, 451 U.S. 477 (1981). See Clabourne II, 64 F.3d at 1378. In Edwards, the Supreme Court held that a suspect who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him.” Id. at 484-485. However, “Edwards left unanswered the question whether a suspect who invoked his right to counsel after being taken into custody for one crime could be questioned about other crimes for which he had not invoked that right. That was the state of the law at the time of Clabourne's original trial.” Clabourne IV, 745 F.3d at 379.
In Arizona v. Roberson, 486 U.S. 675 (1988), the Supreme Court addressed that question and held that such a subject could not be questioned about other crimes. See Clabourne IV, 745 F.3d at 379 (citing Roberson, 486 U.S. at 684-85). Noting that the Supreme Court had held that Roberson does not apply on collateral review, Id. at 379 (citing Butler v. McKellar, 494 U.S. 407, 415-16 (1990)), the Ninth Circuit upheld the admission of Clabourne's confession during the guilt phase because “[u]nder the law as it stood prior to Roberson, Clabourne's confession was not obtained in violation of Edwards.” Clabourne II, 64 F.3d at 1379.
“That the statement might have been admissible at the time of the original trial in 1982,” however, “did not make it properly admissible at the resentencing trial in 1997.” Clabourne IV, 745 F.3d at 379. “By 1997 it was established that the admission of Clabourne's statement violated his rights under the Fifth Amendment.” Id. at 380. Despite an Arizona statute that required the court at the penalty phase to consider all evidence admitted at the guilt phase of his trial, “[u]nder Roberson, Clabourne's confession could not properly be used against him at his resentencing in 1997.” Id.
As the Ninth Circuit noted, it is evident that the state courts relied on Clabourne's confession:
We note that Clabourne's statement to the police included a detailed description about beating the victim, raping, strangling, and then stabbing her. The Arizona Supreme Court relied, at least in part, on that statement in its aggravation discussion. The court's decision specifically noted, for example, that the victim was forced to undress and serve the men drinks. []Clabourne [III], 983 P.2d at 753. This fact was found nowhere else in the record.Id. Both the trial court and the Arizona Supreme Court referred to facts that could only be adduced from the confession and relied on those facts in finding the State had established the only aggravating factor in the case.
The Ninth Circuit, however, stopped short of finding that counsel's failure to object to use of the confession constituted ineffective assistance. See Clabourne IV, 745 F.3d at 380. (“That there was a basis to object to the use of Clabourne's statement at resentencing (or to move to suppress it) does not by itself establish that Clabourne suffered from ineffective assistance through resentencing counsel's failure to make that objection.”) In remanding Claim 1, the Ninth Circuit concluded:
There is no dispute in this case about the deficient performance of Clabourne's post-conviction counsel, as the State concedes that his representation was deficient. Clabourne's post-conviction counsel, who had no experience with Arizona post-conviction proceedings, filed several postconviction petitions in state court that failed to comply with Arizona's procedural rules. After admonishing the lawyer to comply with the rules and assert valid claims, the Arizona post-conviction court denied all claims with prejudice for his failure to comply. On appeal from that denial by the trial level court, post-conviction counsel abandoned almost all claims, including the two Strickland claims arising from Clabourne's resentencing. Strickland's first prong, as applied to Clabourne's post-conviction counsel, is satisfied.Clabourne IV, 745 F.3d at 378. Respondents concede that, in light of this finding, “[determining cause and prejudice to excuse the procedural default of Clabourne's ineffective assistance of resentencing counsel claim necessarily hinges on ‘the underlying claim of ineffective assistance by resentencing counsel.'” (Doc. 81 at 25) (quoting Clabourne IV, 745 F.3d at 382). This Court is therefore required to assess “resentencing counsel's performance under both prongs of Strickland: (a) whether the failure to object to admission of that confession amounted to deficient performance, and (b) whether there was a reasonable probability that Clabourne would have received a lesser sentence but for resentencing counsel's failure to object to admission of the confession.” Clabourne IV, 745 F.3d at 380. The Court will begin its analysis by addressing resentencing counsel's failure to object to the use of Clabourne's confession at the 1997 resentencing.
C. Performance
Clabourne contends that Bloom and Ryan failed in their duty to provide reasonably competent representation by failing to invoke Roberson to protect Clabourne's right to counsel under the Fifth and Fourteenth Amendments. (Doc. 71 at 20.) For the reasons discussed below, the Court finds that Clabourne has failed to overcome the presumption that defense counsel's actions were reasonable and strategic.
Clabourne alleges resentencing counsel's performance fell below the prevailing professional norms as stated in the 1989 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989 ABA Guidelines). (Doc 71 at 21.) Guideline 11.5.1(B)(7)(b) of the 1989 ABA Guidelines directs counsel to consider available pretrial motions, “including the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase,” such as the suppression of evidence gathered as a result of violations of the Fourth, Fifth or Sixth Constitutional Amendments, including the fruits of illegal searches or seizures. The Guidelines further require counsel “to seek to ensure that the client is not harmed by improper, inaccurate or misleading information being considered by the sentencing entity or entities in determining the sentence to be imposed.” See 1989 ABA Guideline 11.8.2(C).
The ABA Guidelines, however, do not constitute “per se” or bright line standards for reasonable performance. “No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89; see also Van Hook, 558 U.S. at 8 (“Strickland stressed . . . that ‘[ABA] standards and the like' are ‘only guides' to what reasonableness means, not its definition.”); Wiggins v. Smith, 539 U.S. 510, 521 (2003) (noting that the Court has declined to articulate specific guidelines for appropriate attorney conduct). “Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides.” Id. at 688.
Additionally, the Court agrees with Respondents that Clabourne fails to demonstrate whether the 1989 ABA Guidelines were generally accepted and followed by the Pima County criminal defense bar during Clabourne's resentencing and PCR proceedings.
As explained below, the Court may not consider the new evidence presented by Clabourne on this issue, specifically Ryan's declaration (Ex. 2).
The Court, however, does not rely on the ABA Guidelines to reach the conclusion that, absent a reasonable strategic reason for doing so, counsel's failure to object to the resentencing court's use of Clabourne's confession fell below an objective standard of reasonableness. No fairminded jurist could determine that standard practice at the time of Clabourne's resentencing was to allow the State to establish the sole aggravating factor in a death-penalty case through the admission of inadmissible evidence. See, e.g., Tomlin v. Myers, 30 F.3d 1235, 1239 (9th Cir. 1994) (“[A]bsent some indication the motion would have been lacking in merit . . . the failure to bring to the court's attention a major constitutional error in the prosecution's case is not the product of reasonable professional judgment.”); Smith v. Dugger, 911 F.2d 494, 497 (11th Cir. 1990) (“The district court properly found that counsel's failure to move to suppress Smith's confessions- confessions critical to the state's case-was unreasonable and outside the wide range of professionally competent assistance.”); State v. Vickers, 180 Ariz. 521, 526, 885 P.2d 1086, 1091 (1994) (concluding that counsel's performance was constitutionally deficient where counsel, during retrial, withdrew a motion to suppress defendant's statements that the appellate court had previously determined were inadmissible).
Clabourne asserts two Supreme Court cases, Rompilla v. Beard, 545 U.S. 374, 383-84 (2005), and Kimmelman v. Morrison, 477 U.S. 365, 379 (1986), establish “a duty to investigate the aggravating factors sought to be admitted by the prosecution at resentencing, and, if possible, challenge their admission or lessen their impact at capital sentencing.” (Doc 71 at 21.)
In Rompilla, defense counsel was on notice that the state would attempt to establish a significant aggravating factor of a history of a prior felony conviction indicating the use or threat of violence. Counsel also knew that the state would attempt to establish this history by providing Rompilla's prior conviction for rape and assault and by introducing a transcript of the rape victim's testimony from the prior conviction. 545 U.S. at 383 . Counsel failed to review the transcript before the hearing or obtain Rompilla's file from his prior conviction. Id. at 384-85. The Supreme Court found counsel's failure to look at the file fell below the line of reasonable practice because counsel knew the prosecutor intended to introduce the prior conviction and quote the damaging testimony of the rape victim in that case. Id. at 389-90.
In Morrison, 477 U.S. at 379, 384, the Court affirmed the principle that criminal defendants should be allowed to vindicate through habeas review “their right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally-seized evidence,” which, when not a matter of sound strategy, falls below prevailing professional norms.
As Respondents suggest, however, Rompilla and Morrison are factually distinguishable from this case. In Rompilla, for instance, the Court focused on counsel's failure to obtain or examine the prior conviction despite its ready availability and counsel's knowledge the prosecutor was going to use it at sentencing. See Rompilla, 545 U.S. at 385. In Morrison, the Court rejected the state's bid to extend restrictions on federal habeas review of Fourth Amendment claims to IAC claims based principally on defense counsel's incompetent handling of Fourth Amendment issues and found constitutionally deficient performance as a result of counsel's “total failure to conduct pre-trial discovery.” Morrison, 477 U.S. at 386. Unlike Rompilla and Morrison, counsel here did not fail to discover or investigate the existence of the confession. They failed to object to its use. Further, as Respondents note, Morrison involved the admissibility of evidence under the Fourth Amendment, in contrast to the confession's inadmissibility under the Fifth Amendment.
Nonetheless, just as counsel's awareness of the prosecutor's intent to rely on the prior conviction and testimony of the rape victim in Rompilla heightened counsel's duty to investigate the prior conviction, Clabourne's counsel were on notice that the confession was inadmissible and that it was going to be introduced by the State in support of the (F)(6) factor. Because the confession was the only evidence the State introduced at the aggravation/mitigation hearing, counsel would have been particularly remiss in failing to investigate the admissibility of the confession.
The record supports a finding that counsel were aware of the confession, its prospective inadmissibility, and the State's intent to rely on it to establish the sole statutory aggravating factor-“especially heinous, cruel, or depraved”-under A.R.S. § 13-703(F)(6). (See Appx. 1371-73, 1344-1360.)
Resentencing counsel Bloom and Ryan represented Clabourne in his first federal habeas petition, where they raised the claim that Clabourne's confession should be suppressed. Counsel continued to represent Clabourne when the Ninth Circuit ruled that the confession would not be legally admissible, prospectively. The State then signaled to counsel its intent to rely on the confession by providing them a copy of the sentencing memorandum at a motion's hearing on October 11, 1996 (see Reply. Appx. 1385). The prosecutor attached the confession to the State's Sentencing Memorandum as Exhibit 1, served the memorandum and confession on resentencing counsel, and relied extensively on facts that could only have come from the confession in arguing in support of the death penalty at the aggravation/mitigation hearing. (See Appx. 1344-60, Reply Appx. 1382.)
At the very latest, the prosecutor's intent to use Clabourne's confession to establish the (F)(6) factor would have been apparent to defense counsel from the outset of the prosecutor's argument during the aggravation/mitigation hearing on August 8, 1997. Counsel acknowledged as much during the hearing. (See Appx. 1425.) The prosecutor's argument before Judge Montiel contained numerous explicit references to Clabourne's statement and to facts that could only be established through the admission of Clabourne's confession. (See Appx. 1371-73, 1376-85, 1413, 1417-23.) After the prosecutor's argument, attorney Bloom stated that he “recognize[d] the facts of this case are horrible. Without question, . . . this was a truly horrible case.” (Appx. 1386.) Unquestionably, many of the “horrible” facts he was referring to were presented to the court by the prosecutor through Clabourne's confession.
The resentencing court also signaled to counsel its awareness of, and intent to rely on, the entire trial court record, which included Clabourne's statement to Detective Bustamante. (See Reply Appx. 1381 (“I haven't had an opportunity to read the motions. I have read everything else in this case, at least I hope I have, everything that was filed in the court that I am aware of. There were filings, transcripts and things of that nature.”); Resp. Ex. L at 4 (“I have reviewed the record completely, . . . in its totality, including the habeas corpus proceeding and the record of the trial and the rest of the documents that have been filed to date.”). Yet, despite counsel's familiarity with Roberson, having cited the case in their appellate briefing, and the Ninth Circuit's decision finding the confession prospectively inadmissible, see Clabourne, 64 F.3d at 1378-79, they failed to object to its use at resentencing.
Respondents' assert that counsel was not deficient because Clabourne fails to demonstrate that the court ever received or considered the State's sentencing memorandum, noting the document is not included in the Pima County Superior Court record on appeal. (Doc. 81 at 25-27.) But, even if true, whether the state court considered the State's sentencing memorandum is irrelevant to the issue before the Court. As the Ninth Circuit has instructed, the issue before the Court is whether “resentencing counsel was ineffective in failing to suppress the confession,” Clabourne IV, 745 F.3d at 374, not the sentencing memorandum.
Though not dispositive of the issue before the Court, the record disputes Respondents' contention. (See Appx 1371) (Transcript of Aggravation/Mitigation Hearing) (prosecutor referring to “all of the memoranda that have been filed” and the “aggravation . . . that [the memorandum] are suggesting [the court] ought to find”), (Reply Appx 1385) (Transcript of Motions Hearing October 11, 1996) (defense counsel noting the prosecutor filed the sentencing memo, dated October 11, on that same day, to which Clabourne's confession was attached).)
Respondents also argue that resentencing counsel's performance was not deficient because it was reasonable for counsel to rely on the trial court to discern what evidence it could and could not consider in making its sentencing determination. (Doc. 81 at 27.) Respondents suggest that “[a]bsent evidence to the contrary, we have assumed that the trial judge in a capital case is capable of focusing on the relevant sentencing factors and setting aside irrelevant, inflammatory, and emotional factors.” (Id. at 28) (quoting State v. Bolton, 182 Ariz. 290, 316, 896 P.2d 830, 856 (Ariz. 1995)). Therefore, Respondents assert, “resentencing counsel was not deficient for failing to ask the judge to do something he presumably already knew he was required to do.” (Id. at 28-29.)
Respondents' argument would render a defendant's Sixth Amendment right to counsel redundant in a judicial system where the trial court is tasked with sua sponte safeguarding the rights of criminal defendants. Despite a trial court's best efforts to safeguard the fairness of the trial, a defendant who cannot afford counsel “cannot be assured a fair trial unless counsel is provided for him,” Gideon v. Wainwright, 372 U.S. 335, 344 (1963), because a fair trial is one in which evidence is subject to the “adversarial system embodied in the Sixth Amendment” and “counsel plays a crucial role” in that system, Strickland, 466 U.S. at 684.
Bolton and other similar cases cited by Respondents (see Doc. 81 at 27-28) do not apply to the scenario here. Those cases do not stand for the proposition that effective representation is unnecessary because a trial court is presumed capable of safeguarding a defendant's rights, as Respondents suggest. Rather, they suggest that the trial court is presumed to be capable of disregarding or setting aside irrelevant, inflammatory, or otherwise inadmissible or tainted evidence which has come before the court, unlike jurors faced with the same circumstances. See, e.g., Bruton v. United States, 391 U.S. 123, 135 (1968) (“[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”).
The performance inquiry begins with the premise that “under the circumstances, the challenged action[s] might be considered sound trial strategy.” Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 191 (2011)). Under this objective approach, [the Court is] required ‘to affirmatively entertain' the range of possible reasons counsel might have proceeded as he or she did.” Miles, 713 F.3d at 486 (quoting Pinholster, 563 U.S. at 195).
While Respondents do not proffer any strategic theory under which defense counsel might have opted not to challenge the confession, “[c]ounsel's competence . . . is presumed, . . . and the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Morrison, 477 U.S. at 384 (citing Strickland, 466 U.S. at 688-89). “Since ‘[t]here are countless ways to provide effective assistance in any given case,' . . . unless consideration is given to counsel's overall performance, before and at trial, it will be ‘all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.'” Id. at 386 (quoting Strickland, 466 U.S. at 689.)
The Court has carefully reviewed the record in this case and determines that it is “at least arguable,” Richter, 562 U.S. at 106, that a reasonable attorney could decide to forego challenging the resentencing court's use of Clabourne's confession in the circumstances present here.
At Clabourne's first sentencing, the trial court found that he had committed the offense in an especially heinous, cruel or depraved manner under A.R.S. § 13-703(F)(6) and found no mitigating factors. (Appx. 1445, Resp. Ex. F at 17.) Independently reviewing the sentence, the Arizona Supreme Court explained that “cruelty involves pain and distress visited upon the victim” including “mental anguish,” while the “terms ‘heinous and depraved' are concerned with the mental state and attitude of the perpetrator.” Clabourne 1, 142 Ariz. at 347, 690 P.2d at 66 (citing State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983), State v. Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981), State v. Ceja, 126 Ariz. 35, 39, 612 P.2d 491, 495 (1980)).
The court noted that the factors supporting a finding of heinousness or depravity include the apparent relishing of the murder by the killer, needless mutilation of the victim, senselessness of the crime and helplessness of the victim, and infliction of gratuitous violence on the victim. Id. (citing Gretzler, 135 Ariz. at 52, 659 P.2d at 11). The court cited other cases where the gratuitous violence criterion was found, including State v. Jeffers, 135 Ariz. 404, 432, 661 P.2d 1105, 1133 (1983), where an assailant climbed on top of an already dead victim and hit her in the face several times causing additional wounds, and Ceja, 126 Ariz. at 39, 612 P.2d at 495, where the defendant continued shooting his victim after it had become apparent that he was already fatally wounded. Id. at 358, 690 P.2d at 67 (citing).
The court then found that Clabourne committed the killing in a heinous and depraved manner because there was “sufficient evidence of gratuitous violence to support a finding of depravity and heinousness. The victim was near death after the strangulation and the stabbing was unnecessary to accomplish the murder. Still defendant stabbed her twice, once through the heart.” Id. at 348, 690 P.2d at 67.
Cruelty was established because, in addition to factors derived from Clabourne's confession, the court noted that the victim “was obviously in great fear of her life as she begged defendant to protect her” and “[t]he medical examiner testified that the victim had put up a tremendous struggle while being strangled, indicating a good deal of suffering” Clabourne II, 142 Ariz. at 348, 690 P.2d at 67.
At trial, the State had presented the testimony of Dr. Valerie Rao, the medical examiner who performed an autopsy on the victim's body. (Resp. Ex. B at 243-44.) Dr. Rao testified that the victim died both from strangulation and from being stabbed in the heart. (Resp. Ex. B, at 245, 246, 251.) When Dr. Rao examined the victim, the bandana used as a ligature was still knotted around her neck. (Id. at 246-47.) Under the bandana, Dr. Rao found “a lot of bleeding” and bruises around the victim's neck. (Id. at 247.) Based on blood vessel ruptures in the victim's eyes, face, and neck, Dr. Rao concluded that the victim was alive before she was strangled. (Id.) The redness in the victim's face as a result was “tremendous,” and Dr. Rao attributed the ruptured blood vessels to the victim's struggling against the ligature and “the tremendous force that is being applied to her neck.” (Id. at 248.) These blood vessel ruptures were such that the white of one of the victim's eyes was almost entirely obscured by blood and the victim's eyes were “bulging” from the force of the strangulation. (Id. at 250.)
Clabourne asserts that Dr. Rao's trial testimony was incorrect as a matter of medical science. In support, he has submitted additional medical evidence, primarily in the form of an opinion from Dr. Werner U.Spitz, a forensic pathologist and toxicologist, and excerpts from several medical texts. (See Ex. 1 at Ex. p. 1-147.) The Court does not consider this evidence for three reasons. First, as stated in greater detail below, the Court may not consider new evidence in this proceeding because Clabourne has not met the “stringent requirements” of 28 U.S.C. § 2254(e)(2). See Ramirez, 142 S.Ct. at 1739. Second, consideration of counsel's failure to investigate these facts falls outside the scope of the instant remand. Third, the evidence goes to prejudice, which this Court does not consider in this Order, and is irrelevant to “counsel's perspective at the time” they chose to forego challenging the use of the confession. See Strickland, 466 U.S. at 689.
As to the stabbing, Dr. Rao testified that the victim had suffered two wounds to the chest. (Id. at 252.) The wounds were consistent with having been inflicted with a knife. (Id. at 252-53.) One of the wounds entered the victim's body and “went through her lung.” (Id. at 253.) This wound was not lethal. (Id. at 269.) The other wound went into the victim's heart, and Dr. Rao opined that the victim had been stabbed in the heart twice without the knife being fully removed from her body. (Id. at 253.) In Dr. Rao's opinion, the stab wounds to the victim's heart were fatal, as one of them “went through and through the heart and ended up near her spine.” (Id. at 254.) It was clear to Dr. Rao that the stabbings occurred before the victim died but after the strangulation, as there was a contusion surrounding the stab wound and bleeding in the chest cavity but it “was very little” and occurred “probably . . . [when] she had just a few heart beats left.” (Id. at 254-55.) Death after the stabbing through the heart, however, would not have been immediate, though it is likely the victim was unconscious at the time she was stabbed. (Id. at 268, 271.)
Dr. Rao testified that the victim had several bruises on her body: “on her hand, on her arms, on her legs, . . . surrounding the stab wound[,] and she had them on her neck, too.” (Id. at 255.) Among these bruises, ones on the victim's thumbs indicated to Dr. Rao that “she was struggling, and she sustained [them] probably in the struggle to get away from the inevitable, what happened to her.” (Id. at 258.) Dr. Rao characterized these bruises as “defensive-type injuries.” (Id.) When asked to approximate the timing of these injuries, Dr. Rao estimated that they were sustained, at most, 24 hours prior to death, but, based on their coloration, they could have been sustained immediately prior to death. (Id. at 262-63.) In terms of apparent injuries, Dr. Rao later related that the victim had a bruise on her face with “tremendous discoloration” along with a cut on the inside of her lip. (Id. at 262.) Dr. Rao opined that the bruise was “sustained by a blunt force, consistent with a fist” and that these injuries indicated a “beating.” (Id. at 262-63.) Dr. Rao did not believe the injuries could have been sustained as a result of the victim's fall on to the riverbed after she was already deceased because the other injuries “have vital reaction” indicating that they were sustained when she was alive. (Id. at 266.) In contrast, Dr. Rao explained that the victim had two fractures demonstrating very little bleeding, which indicated that they were sustained after the victim was already dead. (Id. at 266-67.)
Dr. Rao also found evidence of “sexual activity in the mouth, in the rectum and in the vagina,” (id. at 264-65), though she had no opinion whether the sexual activity was consensual or not (Id. at 273, 280). Dr. Rao explained that most victims of rape do not present with injuries or trauma. (Id. at 280-81.) There were no indications of alcohol or drugs in the victim's blood. (Id. at 266.)
Given the nature of this testimony, it would have been objectively reasonable for defense counsel to predict that even disregarding Clabourne's confession, the resentencing court would again find that the medical evidence and other evidence introduced at the trial supported the (F)(6) aggravating factor. Cf., Premo v. Moore, 562 U.S 115, 127 (2011) (finding counsel's strategy reasonable despite counsel's failure to seek suppression of petitioner's confession to police where there were two witnesses able to relate another confession).
Furthermore, this Court had previously considered Clabourne's procedural argument that no reasonable factfinder would have found him eligible for the death penalty without consideration of the confession and found:
First and foremost, other evidence supported the cruelty finding. At trial, Shirly Martin testified that Petitioner told her the victim had begged not to be killed. (RT 11/18/82 at 332, 333.) The medical examiner testified that Webster was alive and conscious while being strangled and that she put up a “tremendous” struggle. (RT 11/17/82 at 248, 255.) Webster also sustained numerous bruises and contusions over her body, likely inflicted prior to death. (Id. at 255-62.) Thus, even without Petitioner's confession, there was sufficient evidence from which a trier of fact could conclude that the victim feared for her life and suffered greatly before being killed.(Doc. 41 at 16-17.) The Court reaffirms this finding here. The import of that finding in this proceeding is that at the time counsel returned to state court for the resentencing, it would have been reasonable for counsel to believe that, even if they succeeded in suppressing the confession during resentencing, the (F)(6) aggravating factor based on cruelty would still be found.
As the Ninth Circuit explained in remanding this case:
Other facts identified in the Arizona Supreme Court's discussion of the aggravating circumstances were supported by other evidence in the record. Multiple witnesses testified concerning incriminating statements made by Clabourne, including that the victim had been raped and that she had begged for help. Based on the autopsy she performed on the victim, the medical examiner testified at trial about the beating and sexual activity that
the victim suffered before her death, as well as the strangling and stabbing.Clabourne IV, 745 F.3d at 381.
There is no doubt that the murder was particularly senseless, and the victim was totally helpless at the hands of her captors, as the State pointed out on appeal and as evidenced by the victim's pleas for help. (Reply Appx. 1411.) As the resentencing court noted, Clabourne “was also a witness to the repeated beating and sexual assaults by other co-defendants. At the very least this Defendant displayed a callous indifference to Laura Webster's life, demonstrating a heinous and depraved state of mind.” (Appx. 1437)
Given the overwhelming likelihood the State would again establish the (F)(6) aggravating factor, with or without the confession, it was objectively reasonable for defense counsel to focus their efforts on establishing the strongest available case in mitigation, and the record demonstrates this is what counsel did. In pursuing this strategy, they provided their experts “with a more complete history of Clabourne and more information about the crime than they had received before trial,” Clabourne III, 194 Ariz. at 383, 983 P.2d at 752, and relied on Clabourne's confession in support of their mitigation theory.
Attorney Bloom foreshadowed this theory during the federal evidentiary hearing while justifying to the Court his line of questioning of Dr. LaWall:
Mr. Clabourne advanced in his confession a statement that he said, “I was afraid Langston was going to kill me, so I killed her.” I think that . . . because of the paranoia that [Dr. LaWall] saw in Mr. Clabourne, a very unusual symptom, because of the way he reacted in stress, Mr. Clabourne may very well have had that fear and been acting in conformance with that fear at the time that he killed her. ...
I should clearly think that . . . someone deciding whether or not this man should get life or death should know that in this man's own idiosyncratic and, perhaps, mentally ill mind, he could have thought he was in physical danger and had to kill this person for his own safety.”(Appx. 630-39.)
At the aggravation/mitigation hearing, Clabourne's confession set the stage for counsel's mitigation theory establishing that Langston was the “mastermind” and Clabourne was the “follower.” This theory tied together the testimony of Detective Bustamante and the mental health experts who had testified at the federal evidentiary hearing to describe what counsel referred to as “the reality of this case,” explaining that “it's as if Scott Clabourne, despite his hulking size” and menacing appearance, “it's as if . . . inside this hulking body is the mind of a seven or eight year old child.” (Appx. 1387.) “Mr. Clabourne . . . was confronted with a situation that . . . in his mind, given the child like way that he relates to the world, given the forceful personality of . . . Mr. Langston . . . given what he was confronted with, in his mind he felt he was under duress.” (Appx. 1399-1400.) Counsel urged the court to consider the testimony from the mental health experts who had testified at the federal evidentiary hearing, asserting the experts established that Clabourne “suffered from schizophrenia, which is a regression into a child like thought process.” (Appx. 1390.) Counsel summarized:
I think that's the testimony before the court, both in terms of the capacity of Mr. Clabourne to appreciate the wrongfulness of his conduct and the character traits which set the stage for his duress, and which also set the stage for why we believe that it's so unfair to impose the death sentence on Mr. Clabourne, when Mr. Langston is the person most responsible for that life.(Appx. 1400.)
The expert witnesses who testified at the evidentiary hearing in federal court relied, at least to some extent, on Clabourne's confession or Detective Bustamante's testimony regarding the confession. Counsel's theory of the case, as evidenced by the testimony they sought to develop, was that a more complete picture of Clabourne's mental health history lent credence to Clabourne's confession in the sense he felt helpless to assist Webster and scared and pressured to act by Langston.
Dr. LaWall testified that, based on what he knew of Clabourne's own account of the events, he believed it unlikely that Clabourne planned the murder for days or weeks in advance. (Appx. 629, 647.) Dr. LaWall also testified that he thought it was “more probable than not” that Clabourne really was in physical fear from Langston at the time of the murder as Clabourne had stated in his confession. (Appx. 629-31; see also Appx. 646.) Dr. LaWall also testified that Clabourne's statement of how the murder occurred, that “someone just said to him, ‘Let's go out and meet some women tonight,' and he, ‘just drifted into this event' without much forethought,” was consistent with Clabourne's “whole personality and the entire history” of which Dr. LaWall was aware. (Appx. 632.)
Dr. Gelardin opined that it was possible, consistent with Clabourne's confession, that Clabourne had been manipulated or pressured in some way by Langston to commit the offense. (Appx. 698.) Specifically, Dr. Gelardin stated that “if I were in a situation with someone stashing knives all around [as Clabourne stated in his confession], I might feel pressured.” (Appx. 699.) Dr. Gelardin opined that Clabourne's statement about Langston “stashing knives” all around may have been true or may have been the result of a paranoid thought process, but that the confession was consistent with Breshears' statement in regard to Langston being the “mastermind.” (Appx. 699-700.)
Dr. Berlin testified at the evidentiary hearing that, with the benefit of reviewing additional records provided by counsel, he believed Clabourne suffered from schizophrenia. (Appx. 737.) After reading Clabourne's confession and several other notes from around the time the murder was committed, Dr. Berlin had serious doubts as to whether Clabourne could function “in a logical, concise, and aware manner.” (Appx. 745.) Dr. Berlin opined that, based on Clabourne's confession, Clabourne was “very” fearful of Langston, and that Clabourne's mental illness would “certainly aggravate that condition.” (Appx. 750.)
Counsel urged the court to consider the disproportionality of Langston's life sentence, as he was the “controlling force,” or the “major party,” compared to Clabourne, who was a “minor participant.” (Appx. 1407.) Counsel based this conclusion on Detective Bustamante's testimony which, in turn, was based in part on Clabourne's confession. (See Appx. 773-77).
Counsel presented the testimony of Robert Hirsh, a criminal defense attorney who had successfully argued the defense of insanity in several murder cases. (Appx. 829-31.) Hirsch explained why he believed trial counsel had not met minimal competency standards. (Appx. 839.) Among other reasons was that, “given Clabourne's statement, . . . there is a basis for a duress claim.” (Appx. 842.) Additionally, “based on Clabourne's statement” there was “a good argument here in that this was not felony murder.” (Appx. 843.)
During the aggravation/mitigation hearing, resentencing counsel highlighted several points made by these witnesses who had relied on Clabourne's confession in forming their opinions. While the prosecutor recognized that there was some discrepancy between attorney Bloom suggesting Clabourne's statements should not be considered,and attorney Ryan's reliance on his confession to demonstrate their mitigation theory, (Appx. 1418), Bloom reiterated in rebuttal, referring to the confession, that Clabourne had been afraid for his life because Langston was stashing knives everywhere, so when Langston told him to murder the victim, he had no choice. (Appx. 1425.) This strategy was consistent with what counsel's own expert, Hirsh, advised should have been done to present a duress claim:
Bloom had successfully moved to preclude the court from considering any portions of the presentence report that were based on a statement Clabourne made to the probation officer. (Ex. J at 1.) He also successfully moved at the outset of the aggravation/mitigation hearing to preclude the court from considering information in the presentence report that was derived from Clabourne's statements. (Appx. 1363-67.) The prosecutor seemingly conflated these two statements in referring to the discrepancy between Bloom and Ryan's positions. This discrepancy, however, illustrates counsel's awareness of the legal grounds on which to move to suppress the confession and the court's willingness to grant such a request, but also counsel's strategic choice not to do so. In light of counsel's motion to preclude Clabourne's statements in the presentence report, it is highly unlikely that the failure to move to suppress the confession was a mere oversight.
You've got Langston who was carrying out his fantasy and using Clabourne to do it. You've got a very passive man in Clabourne who-he claims he's threatened to do it, but certainly there may have been a strong element of emotional distress. This area was never explored and never presented to the judge.
This is a terribly important dynamic. I don't know how a judge could
pass a death sentence without having this important dynamic performed.(Appx. 860.)
In fact, based on counsel's theory and the new evidence introduced at the federal evidentiary hearing, counsel were successful in establishing that Clabourne “has a passive personality, is impulsive, and is easily manipulated by others.” (Resp. Ex. L at 8-10), As a matter of strategy, counsel's choice to not object to the confession was “well within the range of professionally reasonable judgments.” Strickland, 466 U.S. at 699. In LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998), for example, counsel made a reasonable strategic choice to introduce the petitioner's confessions-admitting he committed a murder in a moment of rage-at the sentencing phase of trial despite counsel's successful suppression of the confessions during the guilt-phase. The Ninth Circuit rejected petitioner's claim “that his counsel acted ineffectively because counsel changed strategies on whether or not the confessions should be suppressed” because “[t]he confessions revealed a less egregious crime than that presented by the eyewitness testimony.” Id. at 1273. “In the absence of the confessions, the sentencer would have no record evidence of [petitioner's] conduct except that of [the eyewitness].” Id. at 1274. Thus, the use of the confessions during sentencing was a sound and reasonable strategic decision by petitioner's counsel. Id.
Similarly, counsel here, at the sentencing phase, faced with a client convicted of first-degree murder, three counts of sexual assault (oral, anal, and vaginal intercourse), and kidnapping, all unassailable findings during the sentencing proceeding, made a reasonable strategic decision to pursue a mitigation theory of duress that was consistent with Clabourne's confession and with the opinion of his expert. Clabourne's confession provided evidence of duress that his experts placed within the context of Clabourne's mental illness. Clabourne's experts explained that, due to Clabourne's mental illness and paranoia, he feared Langston and thus it was more likely he was manipulated by Langston into committing the murder. The evidence was convincing to at least one jurist; District Judge Richard M. Bilby, who presided over Clabourne's federal evidentiary hearing, concluded:
I think the evidence in this case was overwhelming of guilt. I think it was just as overwhelming that the wrong guy got the death penalty. . . . ...
There certainly were some problems with the-with the confession that he gave, but at the same time he gave confessions to other people that weren't tainted. . . . ...
I'm sure if I were a judge, if I'd been Richard Roylston and sat there and listened to what I heard today . . . and then heard what Bustamante had to say, I wouldn't have put this guy to death.(Ex. H at 164-65, 169-70.)
Though ultimately the resentencing court concluded Clabourne was easily manipulated “only when he wanted to be manipulated,” and again found the mitigating factors were not sufficiently substantial to call for leniency, (Resp. Ex. L at 8-10), “[t]hat trial counsel's strategy proved unsuccessful cannot be used as a reason to question the reasonableness of the strategy.” Thomas v. Lumpkin, 995 F.3d 432, 455 (5th Cir. 2021); see also Strickland, 466 U.S. at 699 (“On these facts, there can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment.”); Hansford v. Payne, 2006 WL 2381902, * 7 (W.D. Wash. 2006) (citing Riley v. Wyrick, 712 F.2d 382, 385 (8th Cir. 1983)) (“Just because a strategy is unsuccessful does not mean that counsel was ineffective.”). Counsel's strategy to rely on the confession to support a claim of mental illness and duress was reasonable, comprehensible, and logically consistent with the guilt-phase presentation, and, in the words of his own expert, “a terribly important dynamic to present to the sentencing judge.”
Clabourne has not rebutted the presumption that “counsel's performance fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
This determination ends the Court's inquiry, because a court need not address both components of the Strickland inquiry or follow any particular order in assessing deficiency and prejudice. Strickland, 466 U.S. at 697. If it is easier to dispose of a claim on just one of the components, then that course should be taken. Id.
For the reasons set forth above, although PCR counsel performed deficiently, Clabourne was not prejudiced by PCR counsel's failure to raise this meritless claim of ineffective assistance of trial counsel. See Atwood, 870 F.3d at 1059-60; Runningeagle, 825 F.3d at 982; Hooper, 985 F.3d at 627. The underlying claim of ineffective assistance fails because resentencing counsel did not perform deficiently under Strickland in failing to move to suppress Clabourne's confession. Therefore, there was not a reasonable probability that the result of the PCR proceedings would have been different if Claim 1 had been raised. Claim 1 remains procedurally defaulted and barred from federal review.
III. EVIDENTIARY DEVELOPMENT
Under § 2254(e)(2), a federal court may not hold an evidentiary hearing unless it first determines that the petitioner exercised diligence in trying to develop the factual basis of the claim in state court. See Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If the failure to develop a claim's factual basis is attributable to the petitioner, the court may hold a hearing only if the claim relies on (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). In addition, “the facts underlying the claim [must] be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the [petitioner] guilty of the underlying offense.” Id.
Section 2254(e)(2) limits a petitioner's ability to present new evidence through a Rule 7 motion to the same extent that it limits the availability of an evidentiary hearing. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016); Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam). Accordingly, a petitioner who seeks to introduce new affidavits and other documents never presented in state court must demonstrate diligence in developing the factual basis in state court or satisfy the requirements of § 2254(e)(2).
The Court ordered Clabourne to include any requests for evidentiary development in his Supplemental Brief. (Doc. 52 at 2.) However, instead of moving for an expansion of the record under Rule 7 of the Rules Governing Section 2254 Cases to include the exhibits attached to his Supplemental Brief, Clabourne deferred complying with the Order until Respondents indicated whether they contested the facts upon which Clabourne relied in his Supplemental Brief. (Doc. 71 at 54 n.11.)
Respondents, on the other hand, did not object to any of the new evidence submitted with the brief, apart from Dr. Rao's autopsy report. Though Respondents may have waived any argument that 2254(e)(2) precludes the Court's consideration of this evidence, it is equally likely that Clabourne waived any argument that the evidence should be considered by waiting to address the new evidence in his reply.
Regardless, to the extent Clabourne relies on the Ninth Circuit's holding in Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc), to support his assertion that a petitioner is entitled to present new evidence to prove PCR counsel's ineffectiveness (see Doc. 71 at 17), the Supreme Court has since held that, “under § 2254(e)(2), a federal habeas court may not . . . consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” Ramirez, 142 S.Ct. at 1734. The Court further stated that, “if [§2254(e)(2)] applies and the prisoner cannot satisfy its ‘stringent requirements,' . . .a federal court may not . . . consider new evidence[] to assess cause and prejudice under Martinez.” Id. at 1740 (quoting Williams (Michael), 529 U.S. at 433).
Clabourne does not attempt to meet those standards. The claim for which he seeks evidentiary development does not rely on a new, retroactive rule of constitutional law. Nor does it rely on a factual predicate that could not have been discovered previously through due diligence. Clabourne is not entitled to evidentiary development.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, a petitioner cannot take an appeal unless a certificate of appealability has been issued by an appropriate judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district judge must either issue or deny a certificate of appealability when it enters a final order adverse to the applicant. If a certificate is issued, the court must state the specific issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” This showing can be established by demonstrating that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner” or that the issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks omitted). For procedural rulings, a certificate of appealability will issue only if reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the court's procedural ruling was correct. Id.
The Court finds that reasonable jurists could debate its application of Martinez in Claim 1, alleging ineffective assistance of counsel at sentencing.
V. CONCLUSION
For the reasons stated above, the default of Claim 1 is not excused under Martinez. The claim remains defaulted and barred from federal review.
Accordingly, IT IS ORDERED denying Claim 1 as procedurally defaulted and barred from federal review.
IT IS FURTHER ORDERED denying Clabourne's request, so construed, to expand the record and all other requests for discovery, evidentiary development, or an evidentiary hearing.
IT IS FURTHER ORDERED granting a Certificate of Appealability as to Claim 1.
IT IS FURTHER ORDERED that the Clerk of Court shall enter Judgment accordingly.
IT IS FURTHER ORDERED that the Clerk of Court forward a courtesy copy of this Order to the Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ 85007-3329.