In the Supreme Court of the United States

Transcription

1 NO In the Supreme Court of the United States CHARLES L. RYAN, DIRECTOR ARIZONA DEPARTMENT OF CORRECTIONS, Petitioner, v. STEVEN CRAIG JAMES, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF IN OPPOSITION THOMAS J. PHALEN 331 N. First Avenue, #107 Phoenix, AZ (602) GARY T. LOWENTHAL Counsel of Record 1490 Camino Corrales Santa Fe, NM (505) Attorneys for Respondent Becker Gallagher Cincinnati, OH Washington, D.C

2 i CAPITAL CASE QUESTION PRESENTED FOR REVIEW At Petitioner s urging, three successive state postconviction (PCR) courts denied Steven James s penalty phase ineffective assistance of counsel (IAC) claim solely because it was precluded under state law, without discussing the merits of the claim. The third PCR court added that it was powerless to address the merits because the prior preclusion rulings were the law of the case. In contrast, the third PCR court detailed its reasons for denying the merits of ten claims unrelated to IAC, even two claims it denied alternatively on procedural grounds. In federal habeas proceedings, the courts below held that: (1) the state rule precluding the IAC claim was not adequate to bar federal review of the merits, and (2) James s counsel was grossly ineffective. The court of appeals also held that counsel s ineffectiveness was prejudicial. In a motion for rehearing and rehearing en banc, Petitioner contended - for the first time - that the third PCR court had denied the IAC claim alternatively on the merits when it denied James s request for an evidentiary hearing at the end of its opinion. The panel unanimously rejected this argument, and the circuit denied en banc rehearing without dissent. Whether the court below correctly concluded that AEDPA deference was inapplicable because the claim was not adjudicated on the merits in state court.

3 ii TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv CAPITAL CASE... 1 STATEMENT OF THE CASE James s Conviction, Sentencing Proceeding, and Appeal State Post-conviction Proceedings Federal District Court Proceedings Court of Appeals Proceedings REASONS FOR DENYING THE WRIT AEDPA s Deferential Standard of Review is Inapplicable A. James s IAC claim was not adjudicated on the merits in state court B. Waiver of AEDPA s standard of review is not an issue in this case The Court of Appeals Appropriately Granted Habeas Relief... 28

4 iii CONCLUSION... 35

5 iv TABLE OF AUTHORITIES CASES Bell v. Miller, 500 F. 3d 149 (2d Cir. 2007)... 20, 30 Brady v. Maryland, 373 U.S. 83 (1963) Brooks v. Bagley, 513 F. 3d 618 (6th Cir. 2008) Browder v. Director, 434 U.S. 257 (1978) Coleman v. Thompson, 501 U.S. 722 (1991)... 20, 21, 23 Cone v. Bell, 556 U.S. 449, 472 (2009)... 18, 27 Cullen v. Pinholster, 131 S. Ct (2011) Gardner v. Galetka, 568 F. 3d 862 (10th Cir. 2009) Harrington v. Richter, 131 S. Ct. 770 (2011)... 17, 18, 19 Harris v. Reed, 489 U.S. 255 (1989)... 20

6 v Hitchcock v. Dugger, 481 U.S. 393 (1987) James v. Ryan, 679 F. 3d 780 (9th Cir. 2012)... passim James v. Schriro, 659 F. 3d 855 (9th Cir. 2011) Libberton v. Ryan, 583 F. 3d 1147 (9th Cir. 2009) Mathis v. Zant, 903 F. 3d 1368 (11th Cir. 1990) Mooney v. Holohan, 294 U.S. 103 (1935) Napue v. Illinois, 360 U.S. 264 (1959) Noble v. Kelly, 246 F. 3d 93 (2d Cir. 2001) (per curiam)... 29, 30 Porter v. McCollum, 130 S. Ct. 447 (2009) Rompilla v. Beard, 545 U.S. 374 (2005) State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)... 7 Stephens v. Branker, 570 F. 3d 198 (4th Cir. 2009)... 2, 23

7 vi Strickland v. Washington, 466 U.S. 668 (1984)... passim Tague v. Puckett, 874 F. 3d 1013 (5th Cir. 1989) Townsend v. Sain, 372 U.S. 293 (1963) Walker v. Johnston, 312 U.S. 275 (1941) Wiggins v. Smith, 539 U.S. 510 (2003) Ylst v. Nunnemaker, 501 U.S. 797 (1991)... 19, 20, 21, 23 STATUTES 28 U.S.C. 2254(d)... 17, 18, 27, 29 RULES 28 U.S.C., Rule 8(a), Rules Governing 2254 Cases Ariz. R. Crim. P. 32.2(a)(3)... 23, 27 Sup. Ct. R Sup. Ct. R

8 vii FEDERAL RULES ADVISORY COMMITTEE NOTES 28 U.S.C. 2254, Rule 7, Advisory Committee Notes U.S.C. 2254, Rule 8, Advisory Committee Notes... 30

9 1 CAPITAL CASE There are no compelling reasons under Rule 10, Rules of the Supreme Court, for granting certiorari review. The underlying claim, summarized below, is a powerful penalty phase IAC claim. Petitioner does not attempt to challenge the well reasoned holding of the court below, under de novo review, that James was prejudiced by his trial counsel s clearly deficient representation. Instead, Petitioner makes a narrow, case-specific argument, based on an imaginative interpretation of the final paragraph in the third PCR court s long opinion, quoted entirely out of context. Petition for Certiorari (PFC) at 6-7. As discussed below, the record overwhelmingly refutes Petitioner s novel contention. 1 The court of appeals unanimously rejected the argument after thoroughly reviewing the record, and the full Ninth Circuit denied en banc rehearing without a single judge dissenting. James v. Ryan, 679 F. 3d 780, 785, (9th Cir. 2012). Additionally, Rule 15.2, Rules of the Supreme Court, obligates us to inform the Court that Petitioner manufactures a false issue by misstating the opinion of the court of appeals. Petitioner s Question Presented incorrectly asserts that the court below treated AEDPA s deferential standard [of review] as a waivable defense. PFC at i. 2 In fact, the court below explicitly noted that AEDPA s standard of review necessarily 1 See Reasons for Denying the Writ, Section 1.A, below. 2 Petitioner repeats this misstatement at least two more times. See PFC at 11, 13.

10 2 applies if (unlike the present case) a state court actually adjudicates a claim on the merits, as an alternative ruling. 679 F. 3d at 802 (citing Stephens v. Branker, 570 F. 3d 198, 208 (4th Cir. 2009). The court below did not rule that Petitioner waived AEDPA s standard of review. Instead, the court of appeals concluded that Petitioner waived the argument that the state court had in fact adjudicated the claim on the merits. As discussed below, this distinction is highly significant. 3 STATEMENT OF THE CASE 1. James s Conviction, Sentencing Proceeding, and Appeal. Laurence Libberton, Martin Norton, and Steven James were convicted in separate proceedings of murder charges stemming from the 1981 homicide of Juan Maya, hours after Maya had attempted to rape Norton, a fourteen-year-old boy who was living in James s home. 4 Norton received a sentence of approximately three years incarceration in a juvenile facility in return for testifying against Libberton and James. James, 679 F. 3d at 785. Libberton and James were each sentenced to death, but Libberton s sentence was later reversed and today he is serving a term of life 3 See Reasons for Denying the Writ, Section 1.B, below. 4 The attempted rape is discussed below, in Section 2 of Reasons for Denying the Writ.

11 3 imprisonment. Id. at ; SER James alone remains on death row, although his sentence has now been reversed by the court below. On October 4, 1982, James s jury found him guilty of murdering and kidnapping Maya, but acquitted him of robbery and theft charges arising from the incident. 679 F. 3d at 793. The superior court combined the penalty phase aggravation/mitigation hearing with a hearing on a motion for a new trial filed by James s counsel, Terry Pillinger. App. B at Ten days after the hearing, the court denied Pillinger s motion for a new trial and heard argument on aggravation and mitigation. On November 23, 1982, it imposed a death sentence on the murder charge and a term of 21 years for kidnapping. Id. at Pillinger provided grossly inadequate penalty phase representation. Id. at He conducted no social history investigation, before or after the guilt phase, even though he had ample notice of potentially valuable information relating to James s tragic life story. Id. at 807; App. B at 96. He knew that James had been adopted as a child, but interviewed no one from James s biological family to learn about his sordid pre-adoption history. He failed to obtain James s elementary and high school records, even though James s adoptive mother, Winnie James, had them in her possession. He made no effort to consult with 5 ER and SER citations refer to the excerpts of record and supplemental excerpts of record filed in the court of appeals. 6 Citations such as App. B at refer to the appendices to the Petition for Certiorari and the page numbers in those appendices.

12 4 James himself about leads to mitigation evidence, or to interview James s adoptive family, his former wife, and other persons familiar with James s troubled postadoption years, multiple suicide attempts, long-term substance abuse, mental deterioration in the year preceding the homicide, and traumatic reintroduction to his biological family a few months before the encounter with Maya. Id. at Pillinger also failed to investigate James s mental illness as a mitigating circumstance. A psychologist informed Pillinger long before the guilt phase trial that he was counseling James in the jail, that Pillinger could have his counseling notes, and that James was under psychiatric care. App. B at 107. Pillinger also knew that James had attempted suicide in the jail, and the court offered Pillinger funding for a psychiatrist to assist in evaluating James s mental health, two months before the guilt phase trial. 679 F. 3d at 809. Despite all this, Pillinger failed to seek the counseling notes, contact the jail psychiatrist, or avail himself of the court s offer. Id. at Dr. Jack Potts, the psychiatrist treating James in the jail, called Pillinger a week before the scheduled start of the mitigation hearing, informing Pillinger that he had been treating James with lithium and powerful anti-psychotic drugs. Id. at 794; App. B at Even with this information, Pillinger failed to focus on James s mental illness as possible mitigation, instead filing his motion for a new trial, alleging that the medication administered to James had altered his demeanor during the guilt phase trial. ER , 472. Pillinger sought and received funding for a psychiatrist to assist him at the combined hearing, but

13 5 exclusively on the motion for a new trial, and not on mitigation. 679 F. 3d at 809. At the beginning of the combined hearing, Pillinger admitted he was unprepared and was totally unfamiliar with James s psychiatric records. ER 637. The trial court rebuked Pillinger for not speaking with Potts before trial, and the prosecutor echoed that criticism in her closing argument, noting that James s psychiatric records were available long before trial, making it incumbent on Pillinger to go and check out those medical records. SER 41-42, 53. Almost all of the testimony at the combined hearing focused on Pillinger s motion for a new trial, and the scant evidence Pillinger offered as mitigation was disastrous. 679 F. 3d at Pillinger called Dennis Watterson, James s former probation officer, to establish that James was rehabilitatable. 7 Pillinger had not spoken with Watterson after the guilt phase verdict, and this proved to be fatal because Watterson testified that he could not say whether or not James was rehabilitatable. Id. at 795. Pillinger also called Winnie James, Steven s adoptive mother, whose direct examination covered only five pages in the reporter s transcript. ER Pillinger elicited that Steven knew he had been adopted, that he had always acted normally, had never 7 James had been placed on probation as a teenager for burglarizing his pastor s home and stealing $17 worth of loose change. ER It was James s only prior arrest, either as a juvenile or an adult. ER 348.

14 6 been violent, had maintained his trailer in a tidy condition, and was kind to animals. 679 F. 3d at 795. Winnie s testimony gave the sentencing judge the false impression that Steven s pre-adoption years had no lasting impact, and that he had a normal upbringing with no mental health or substance abuse problems. In fact, Winnie contradicted these falsehoods in her contemporaneous diary and in interviews with postconviction counsel. 679 F. 3d at The contradiction occurred, she later explained, because Pillinger had not spoken with her before she testified, and she feared that it would hurt her son s case if she said anything bad in her testimony. Id. at 810. Dr. Potts testified at the combined hearing exclusively on Pillinger s motion for a new trial. Id. at 795. Although Pillinger questioned Potts extensively on the dosages of lithium administered to James, he failed to ask any questions about James s underlying mental illness, his bouts with depression, his suicide attempts, or his prior psychiatric and family history. Id. In fact, Pillinger objected when the prosecutor asked for Potts s psychiatric diagnosis. Id. Pillinger s entire closing argument on mitigation comprised less than two pages of the reporter s transcript. ER 683, 687. He asserted that the most important aspect of mitigation was Watterson s belief that James was rehabilitatable. ER 683. However, when the prosecutor corrected him on Watterson s actual testimony, Pillinger admitted his mistake and withdrew this alleged mitigating factor. ER 687. The only other mitigation Pillinger cited was James s statement during a pre-trial competency examination that he was intoxicated at the time of the offense.

15 7 Pillinger had offered no evidence to corroborate this statement, even though several witnesses could have done so. 679 F. 3d at 809; ER , , Pillinger said nothing about James s tragic life history, mental illness, or chronic substance abuse. Similarly, when the judge sentenced James to death, his verdict discussed possible grounds for mitigation, but did not mention James s life story, mental illness, or substance abuse history. ER The judge rejected intoxication on the night of the offense as a mitigating factor because the only evidence to support it was James s own self-serving statement. ER 693. The Arizona Supreme Court affirmed James s conviction and death sentence on appeal. Although it set aside one of the two aggravating circumstances found by the trial court, it upheld the trial court s finding that the offense was committed in an especially heinous, cruel, or depraved manner. State v. James, 141 Ariz. 141, , 655 P.2d 1293, (1984). Like the trial judge, the supreme court found that Pillinger had not established a single mitigating factor, noting that James s intoxication claim was uncorroborated. Id., 141 Ariz. at 148, 655 P.2d at State Post-conviction Proceedings. James s first PCR petition in 1985 included both guilt and penalty phase IAC claims. With regard to the penalty phase, James alleged that his counsel had failed to interview and present evidence from witnesses familiar with his life history, chronic substance abuse,

16 8 and suicidal mental state. ER James also requested an evidentiary hearing, began interviewing witnesses for that hearing, and asked the county to produce his psychiatric records from the jail. ER , SER However, the state urged the superior court not to adjudicate the merits of the IAC claims because James had not raised them on appeal. ER 507. The superior court agreed, ignored the merits of the IAC claims, and denied them as clearly precluded. ER 147. The Arizona Supreme Court denied review without opinion. ER 145. James filed a second PCR petition in His appointed counsel in this proceeding did not allege an IAC claim, but James himself checked a box on a preliminary form stating that he had been denied competent representation. SER Once again, the state asked the superior court to dismiss the claim as procedurally defaulted, and the court followed this course, ruling specifically that it was precluded. ER The state supreme court again denied review without comment. ER 706. The same thing happened in James s third PCR proceeding in This petition included both guilt and penalty phase IAC claims, along with ten other claims unrelated to the effectiveness of counsel. The penalty phase IAC claim expanded on the allegations in the first petition and included an appendix with detailed affidavits from Dr. Potts and an investigator who had interviewed members of James s family. ER 8 Petitioner does not challenge that James exercised due diligence in attempting to develop the claim in state court.

17 ; SER At the conclusion of the third PCR petition, James requested an evidentiary hearing to develop his claims. ER 558. The state opposed each of the ten non-iac claims in the third PCR petition on their merits, but once again opposed the IAC claims solely on the ground that they were precluded under state law. SER The superior court denied all twelve claims in a thirty-eight page opinion that devoted a separate section to each claim, discussing the specific reason for its denial. App. D. The court denied eight of the non-iac claims solely on the merits [App. D at 1-25, 35-46], and denied the other two alternatively on the merits and on procedural grounds [App. D at 25-31, 48-54]. In contrast, the court denied the two IAC claims solely because they were precluded, as instructed by the state. App. D at The court denied James s request for an evidentiary hearing in a paragraph at the end of its long opinion, eleven pages after it had already precluded the IAC claims. App. D at Again, the Arizona Supreme Court denied review without opinion. ER Federal District Court Proceedings. James included his guilt and penalty phase IAC claims in his habeas petition, filed on June 29, At the request of the district court, the parties initially briefed the procedural status of each claim. Both sides reported that the state court had denied the IAC claims solely as precluded, but James also contended that the 9 This is the paragraph Petitioner cites as an alternative merits ruling on the IAC claim.

18 10 state s preclusion rule was not firmly established or regularly followed. ER 97, SER In 2006, the district court held that the state preclusion rule barring the guilt and penalty phase IAC claims was not adequate, and that federal review could proceed on the merits. ER It then ordered the parties to address the merits of the twenty-two claims in the habeas petition that had been properly exhausted in state court, including the IAC claims. ER 104. James s district court memorandum on the merits of his penalty phase IAC claim incorporated an appendix with approximately sixty exhibits setting forth mitigation evidence that had not been presented to the sentencing judge. The exhibits demonstrated that Pillinger had never apprised the judge about a plethora of information relating to James s biological family, difficult childhood, progressively severe mental illness, and chronic substance abuse. We present only a short summary of that evidence because the court of appeals discussed it in depth. 679 F. 3d at , 817. The district court exhibits revealed that James s birth mother, Lora Pannell, had been violently abused as a child, dropped out of school in seventh grade, became pregnant in her mid-teens and had five babies (including Steven) in six years, with three different fathers. ER 199, 435. On multiple occasions, California authorities committed her to mental institutions and removed the children from her home. ER 435. Similarly, Lester Pannell, Steven s birth father, had been neglected as a child, took special education classes before dropping out of school, began using narcotics in his early teens, became a life-long heroin addict by his

19 11 twentieth birthday, and already had two felony convictions before Steven s birth. ER 199, 209, 427, 434. Steven and his biological siblings endured horrible conditions in filthy and cramped housing, often with no food or anyone to care for them. ER 208, 436, 445. Their hair was dirty and uncombed, and their clothing was ragged. ER 202, 204. Lester had no interest in the children, beat Lora violently in their presence, spent the little money he had on heroin, and had no hesitation about injecting narcotics in front of them. ER , 438, 442. After Lester deserted the family, a series of abusive, alcoholic men moved in with Lora, who regularly left the children at home alone and refused to listen to their pleas that they had been physically abused. ER 200, , 439, Lora s brother, Norman O Steen, periodically lived in her home and sexually abused several of the children. ER 199, 436, 445, 448. Notably, Norman forced Steven s brother Jerry to orally copulate him many times over a period of several years. ER 445. Although Lora abused all her children, she went much further with Steven, whose crying and constant need for attention angered her. She thought he was a brat and she left him alone in public places, causing him to cry even more. ER 439. One time, when he lay in bed screaming, she put a pillow over his face to smother him, wanting to kill him. ER 200. When she finally gave him away for adoption in Arizona, she realized he was frightened of being abandoned, so she

20 12 told him a lie, saying that he was just going on an airplane ride. ER 440. The district court evidence also demonstrated that the sentencing judge had a false picture of Steven s post-adoption life in Arizona. In contrast to Winnie James s bland penalty phase testimony, her subsequent interviews painted a detailed portrait of the damaged boy she and Bradley James adopted. Terrified of the dark, Steven could not sleep at night unless he was next to his adoptive parents, and he would not go to the bathroom unaccompanied. ER 375, 378. He was so hyperactive that he was incapable of sitting still or following directions. ER 335, 338, 378. He wet his bed for several years, was grossly overweight, and worried constantly that his adoptive parents would abandon him. ER 375, 378. When Bradley and Winnie adopted Steven, they were already in their fifties, childless and ill-equipped to raise a traumatized child. ER 205, 308, 374, 378. Bradley was rigid, found it difficult to demonstrate love for Steven, and criticized him constantly. ER , 338, 379. He did not believe in mental health intervention, and would not consent to medication or counseling for Steven. Instead, Bradley whipped him with a rope, pummeling Steven so hard that he had bloody welts all over his back. ER 379. Steven struggled in school from the very beginning, receiving low to failing grades in fundamental academic subjects. ER 403. His behavior was also unsatisfactory, even as a first grader. ER 378, 403. Steven tried to befriend other children by buying them ice cream and giving away toys, but they nevertheless

21 13 taunted and bullied him because he was fat, odd, and duller than everyone else. ER 335, 379, 415, 417. He turned to drugs in early adolescence, and withdrew or was dismissed from four high schools because of failing grades and excessive substance abuse. ER 309, 336, , 375, 380, 408, 413, 453. By this time he began experiencing pronounced changes in his moods [ER 380], and he attempted suicide on several occasions by high speed single car crashes that may have caused brain injury. ER 309, 336, 453. He could not hold onto jobs or pay his rent, and sometimes he was homeless. ER 351, 385, 421. Steven married Marna Hulgren in 1980, but she soon discovered he was seriously mentally ill, with hallucinations, delusions, and unpredictable mood swings. ER The smallest things would send him into rages. She left him a year before the homicide, causing him to become even more irritable and unable to cope. ER 336, 381. Steven knew almost nothing about the dysfunctional dynamics of his family of origin until January 1981, when his biological sister Roxann appeared in Arizona and introduced herself to him. ER 384, 436. He returned with her to California, met his birth family and discovered that almost everyone was mentally ill, a substance abuser, or both. ER , 445. He was upset when Lora Pannell refused to explain why she had given him away while keeping his other siblings, and he learned that his uncle had molested several children of his generation, including his younger brother Jerry. ER 199, 436, 445, 448. Steven remained in California for several months and spent most of his time consuming drugs with Jerry,

22 14 who was a teenager by then and had already been institutionalized several times for mental illness. ER 384, 436, Jerry told Steven about his uncle s molestations and began to consider Steven as his protector. ER 445. When Steven returned to Arizona in the spring of 1981, he deteriorated rapidly, drank alcohol perpetually, and abused an assortment of drugs. Intoxicated most of the time, he lost his temper easily and remained agitated for extended periods. ER 315, 318, 385. Other times, he was profoundly depressed and morose. ER 318, 336. He heaped verbal abuse on his adoptive parents and became extremely upset when his new girlfriend left him a few days before the homicide. ER , 385, 388. The judge sentencing James knew virtually none of this history. Although the judge did obtain fragments of information about James s mental health from the testimony and jail records introduced at the combined hearing, Pillinger introduced this evidence only to show that the medications administered to James in the jail affected his demeanor at trial. Pillinger never mentioned mental illness as a mitigating factor. 679 F. 3d at 817. The judge did not know that James s biological great grandmother, grandmother, mother, uncle, aunt, brother, and sister suffered from serious mental illness. ER 197, 199, 203, 435, 437, 439, 442, , 462. Pillinger presented no evidence relating to James s progressively severe mood disorder, prolonged self medication, and repeated suicide attempts. No psychiatric expert offered mitigation testimony because Pillinger had spurned the trial court s offer of funding for this purpose.

23 15 The exhibits submitted to the district court included a lengthy 1995 affidavit of Dr. Potts, originally filed in state court in support of James s third PCR petition. ER Potts stated in his affidavit that although he was unaware of James s genetic or social history when he treated James in the jail, he nevertheless had diagnosed James with a serious mood disorder and treated him successfully with lithium. Potts added that if he had known of James s family background and personal history in 1982, he would have testified in mitigation that James s ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was substantially impaired at the time of the offense. ER 462. Petitioner s district court pleading on the merits of James s IAC claim did not dispute any of this evidence. 679 F. 3d at 820. Instead, Petitioner maintained only that James s evidence did not establish prejudice under Strickland. Id. Applying de novo review to James s penalty phase IAC claim and considering James s exhibits, the district court concluded that Pillinger had provided clearly deficient penalty phase representation, but that Pillinger s deficiencies had not prejudiced James. App. B at 96, 115. James filed a motion to alter or amend judgment with five additional exhibits, but the district court denied the motion, stating that the exhibits did not change its view of prejudice. App. C at 8-9.

24 16 4. Court of Appeals Proceedings. On October 12, 2011, a unanimous panel of the Ninth Circuit Court of Appeals affirmed the district court s conclusion that the state court had relied on an inadequate procedural rule to preclude James s penalty phase IAC claim, and that de novo review was appropriate because the claim had not been adjudicated on the merits in State court proceedings. James v. Schriro, 659 F. 3d 855, 876, (9th Cir. 2011). The panel also agreed with the district court that Pillinger had provided clearly deficient representation. Id. at 880. However, the court of appeals reversed the district court on Strickland s prejudice requirement, holding that James had presented powerful mitigating evidence to the court below, which, [i]n comparison to the meager mitigation evidence set before the sentencing judge, developed a detailed picture of James troubled childhood, his mental illness, and his downward spiral of depression and drug use in the year before Maya s murder. Id. at , 892. The court of appeals ordered a remand with instructions to grant the writ because the facts were undisputed and clearly established a denial of James s right to effective representation. Id. at 893. Petitioner filed a motion for rehearing and rehearing en banc, arguing for the first time that when the superior court in James s third PCR proceeding precluded the penalty phase IAC claim, it also reached the merits of the claim as an alternative ruling. 679 F. 3d at 802. Additionally, the motion for en banc rehearing contended, without citing authority, that even if James s exhibits established IAC under

25 17 Strickland, the federal court was required to hold an evidentiary hearing. Id. at 820. The panel rejected both contentions in an amended opinion. Id. at , Without a single dissent, the full Ninth Circuit Court of Appeals denied en banc review. Id. at 785. REASONS FOR DENYING THE WRIT 1. AEDPA s Deferential Standard of Review is Inapplicable. Petitioner concedes that the state courts expressly precluded James s penalty phase IAC claim in three separate PCR proceedings. PFC at 6. Petitioner also concedes that the third PCR court stated that it was bound by prior findings of preclusion that were the law of the case. Id. Additionally, Petitioner does not challenge the holdings of the courts below that the procedural rule the state courts used to deny the IAC claim was not an adequate state ground to bar federal review of the merits. Despite this record, Petitioner contends that when the third PCR court denied James s request for an evidentiary hearing at the end of its opinion, this constituted an implicit alternative merits adjudication of the already precluded IAC claim, even though the court did not even mention the IAC claim in the paragraph in question. PFC at 6-7. Based on this fanciful interpretation of the state court s opinion, Petitioner asserts that the Ninth Circuit s decision conflicts with AEDPA s deferential standard of review (as set forth in 28 U.S.C. 2254(d)), and with this Court s decisions in Harrington v. Richter, 131 S. Ct.

26 (2011), and Cullen v. Pinholster, 131 S. Ct (2011). PFC at 15-16, 18. Petitioner s argument is frivolous. A. James s IAC claim was not adjudicated on the merits in state court. Section 2254(d) applies only to claims adjudicated on the merits in State courts. Cone v. Bell, 556 U.S. 449, 472 (2009). Likewise, Richter and Pinholster, both applying 2254(d), are limited to claims adjudicated on the merits in state court. Richter, 131 S. Ct. at ; Pinholster, 131 S. Ct. at 1398, When the state court has not reached the merits of a claim, federal habeas review is not subject to the deferential standard that applies under AEDPA.... Instead, the claim is reviewed de novo. Cone, 556 U.S. at 472. See also Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (per curiam) (de novo review when state court did not reach merits of deficient performance prong of IAC claim); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (same, regarding prejudice prong of IAC claim); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (same). In Richter, the California Supreme Court denied a state petition for habeas corpus on an IAC claim in a one-sentence summary order that did not set forth the court s rationale. 131 S. Ct. at 783. This Court saw nothing in the record indicating that the state supreme court denied the claim on anything but the merits. Id. at 784. Under these circumstances, this Court held that it could presume that the state court adjudicated the merits of the claim. The petitioner in Richter could not overcome this presumption because he alleged nothing

27 19 more than a theoretical possibility that the state court relied on non-merits reasons to deny the claim. Id. at Justice Kennedy s Richter opinion contrasted the circumstances in Ylst v. Nunnemaker, 501 U.S. 797 (1991), with those in Richter. 131 S. Ct. at 785. In Ylst, the last state court to render a judgment on the [federal] claim... expressly found a procedural default, rejecting the claim on that basis, and the state supreme court subsequently denied the claim without opinion or explanation. 501 U.S. at 801. This Court held: [W]here... the last reasoned opinion on the claim explicitly imposes a procedural bar, we will presume that a later decision rejecting the claim did not silently disregard the bar and consider the merits. 501 U.S. at 803. The present case is nothing like Richter, but is squarely controlled by Ylst. Here, as the Ninth Circuit noted and Petitioner concedes, the superior court (the last state court to render a reasoned opinion on James s IAC claims) clearly set forth its rationale for denying the claims, specifically imposing a procedural bar, and the Arizona Supreme Court subsequently denied review without opinion. Therefore, the Ylst presumption (that the state supreme court did not silently disregard the bar ) is applicable, while the Richter presumption (that an unexplained state court decision is on the merits when there is no other

28 20 apparent basis to support it) has no bearing on this case. Of course, as the court below noted, a state court may rest its denial of a claim alternatively on procedural default under state law and on the merits of the claim. James, 679 F. 3d at 802 (citing Harris v. Reed, 489 U.S. 255, 264 (1989)). However, the court below correctly concluded that there was no alternative merits ruling in this case because the third PCR court expressly declared in a plain statement that it was denying James s IAC claims on procedural grounds, without an alternative holding that actually reache[d] and resolve[d] the merits of the claim. Id. 10 Petitioner s own state court pleadings on James s IAC claims provide powerful support for the reasoning of the court below. In both Ylst and Coleman v. Thompson, 501 U.S. 722 (1991), this Court emphasized the importance of whether the State had rested its argument (for rejecting the claim) entirely upon a procedural bar. Ylst, 501 U.S. at 802 (discussing Coleman, 501 U.S. at 740). If counsel for the state urged the state court to reject the claim solely on a procedural ground under state law, and the state court proceeded to deny it on the precise ground urged by the 10 The Second Circuit has reached a similar conclusion in circumstances more favorable to the state, holding that when a state court expressly denies a federal claim on procedural grounds, then refers to the claim s lack of merit without explicitly rejecting the claim on the merits, it has not denied the claim on alternative grounds. Bell v. Miller, 500 F. 3d 149, 155 (2d Cir. 2007). Here, the PCR court said nothing about the IAC claim s lack of merit.

29 21 state, Ylst ruled that it should be presumed that the state court s decision rested solely on state law, absent an explicit statement by the state court that the claim was also denied on federal law. Id. Coleman would go even further, requiring the purported alternative merits decision to rest primarily on federal law, or to be interwoven with federal law. Coleman, 501 U.S. at 735. Here, Petitioner opposed James s guilt and penalty phase IAC claims in all three PCR petitions solely on preclusion grounds. Petitioner also urged the court to ignore the merits of the IAC claims. In the first PCR proceeding, Petitioner argued: It is unnecessary for the state to say anything more than [James] failed to raise on appeal... any challenges to the performance of trial counsel and is precluded from doing so now.... The state urges this Court... not to reach the merits of any part of James petition... The state... respectfully requests that the Court simply dismiss[] the petition solely on the basis of preclusion. ER 507, 826 (underlined emphasis in original; italicized emphasis added). Petitioner made a similar argument for denying the IAC claim in the second PCR petition: [T]his Court should hold the second petition procedurally barred, address nothing on its merits, and summarily dismiss it.... To avoid

30 22 the possibility that the federal courts would reach the merits if this Court rendered an alternative ruling... we respectfully ask the Court to rule exclusively on the basis of preclusion. SER 891, 893 (emphasis added). Again, in opposing the IAC claims in James s third PCR petition, Petitioner ignored their merits and instead contended: [James] maintains that [the first PCR judge] erred by imposing preclusion. The fact is that [the first PCR judge] did impose preclusion and that is the law of the case.... In the second PCR petition, [James] waived any argument about ineffective assistance of counsel at any level... For these reasons, [James] is precluded from attacking any of his attorneys... SER The third PCR court devoted three pages of its opinion to James s IAC claims, entirely focused on why the claims were precluded, without a single word about the merits of either claim. The court could not have been more explicit about its reason for denying the claims: These claims are discussed together because both of them are precluded.... To the extent that the claims were precluded in the first petition, they were precluded in the second, and are precluded now in the third petition.... That

31 23 is the law of the case.... Petitioner s claims of ineffective assistance of counsel are denied as precluded under Rule 32.2(a)(3). App. D at It would be difficult to conjure up a record that more closely follows the reasoning of Ylst and Coleman. The state court explicitly based its denial of James s IAC claims on the sole ground urged by Petitioner: preclusion. The state court also ignored the merits of the claims, as instructed by Petitioner. With no explicit statement by the superior court that it was denying the IAC claims alternatively on their merits, the Ninth Circuit correctly ruled that there was simply no alternative merits adjudication. James s case is in stark contrast to the two decisions Petitioner cites as giving AEDPA deference to an alternative merits holding. PFC at In both of these cases, the state court specifically analyzed the merits of the claim in question and stated that its denial of the claim was based on alternative grounds or primarily on the merits. See Stephens, 570 F. 3d at 206 (after evidentiary hearing on merits, state court explicitly denied claim in the alternative); Brooks v. Bagley, 513 F. 3d 618, (6th Cir. 2008), cert. denied, 129 S. Ct (2009) (state court denied IAC claim as meritless; unclear if it also applied a procedural bar). Other reasons support the conclusion that there was no alternative merits ruling in the third PCR proceeding. First, the superior court s resolution of the ten claims unrelated to IAC is telling. The court denied

32 24 eight of these claims (Claims A-D and H-K) solely on the merits [App. D at 15, 18, 23, 25, 37, 38, 42, 46], and denied the other two (Claims E and L) alternatively as procedurally defaulted and on the merits [App. D at 31, 53-54]. The court detailed its reasoning for denying the merits of each of these claims, even the two claims it denied alternatively on procedural grounds. In contrast, as quoted above, the court denied James s two IAC claims (Claims F and G) specifically on the ground that they were precluded. App. D at Not a single word in the court s thirty-eight page opinion specifically addressed the merits of the IAC claims. The judge in James s third PCR proceeding demonstrated a clear understanding of her ability to deny claims alternatively on the merits and on procedural grounds, as demonstrated by her denial of Claims E and L, and she chose not to act similarly on the IAC claims. Additionally, she stated that she was powerless as a trial court to adjudicate the merits of James s IAC claims because the Arizona Supreme Court had already upheld the earlier preclusion rulings: 11 Petitioner misstates this important point in the certiorari petition, arguing: [The Ninth Circuit found no state-court merits decision merely because the PCR court did not address each claim individually but rather found that the petition as a whole had presented no facts that would have changed the verdict or sentence... PFC at 16. This is directly contrary to the record. The PCR court addressed all twelve claims individually, denied ten of them specifically as meritless, and denied only the two IAC claims solely as precluded.

33 25 It is the role of appellate courts to review the rulings of the trial courts and to rectify errors made by the trial courts. The Arizona Supreme Court declined to find error in the [preclusion] rulings... Those issues [guilt and penalty phase IAC] were and are precluded.... That is the law of the case. App. D at 33. This language demonstrates the judge s understanding that two binding legal obstacles (the law of the case, and the inability of trial courts to contradict prior appellate court rulings) prevented her from reaching the merits of the IAC claims. Petitioner s argument that the judge nevertheless denied the IAC claims on the merits in the final paragraph of her opinion means that she somehow forgot what she had clearly stated earlier in her opinion. This is implausible in the extreme. Petitioner s counsel was a remarkably successful advocate in the third PCR proceeding, winning The superior court followed Petitioner s instructions on all twelve claims, denying eight solely on the merits, denying two alternatively on the merits and procedural default, and denying two solely as precluded. James s penalty phase IAC claim fell in the third category. Despite this clear record, Petitioner seizes on language in the court s final paragraph, out of context, to assert that the paragraph established an alternative merits ruling on James s penalty phase IAC claim. PFC at 7. This misguided argument ignores that the superior court had already stated its specific reasons for denying each claim in the petition. The paragraph in question dealt not with alternative bases

34 26 for denying claims, but with the separate question of whether James was entitled to an evidentiary hearing. The final paragraph in James s PCR petition had included a generic request for an evidentiary hearing, applicable to all of his claims. ER 558. The final paragraph of the superior court s opinion addressed that request. In denying the ten non-iac claims on the merits, the court had sometimes made clear that James was not entitled to an evidentiary hearing [App. D at 15, 18, 23, 27], but it denied other claims as meritless without mentioning further evidentiary development [App. D at 25, 37, 42, 46, 53-54]. The final paragraph of the opinion simply clarified that James was not entitled to an evidentiary hearing on any of the claims reviewed on the merits. The paragraph had no relevance to James s two IAC claims, which, in the court s view, could not even be addressed on the merits, let alone qualify for further evidentiary development. Petitioner s subsequent characterizations of the third PCR court s denial of James s IAC claims demonstrate that Petitioner, like the state courts and each of the courts below, understood that the denial had been based solely on procedural grounds. For example, when Petitioner opposed Arizona Supreme Court review of the superior court s denial of the third PCR petition, Petitioner gave the following synopsis of the superior court s rulings: The trial court ruled that claims F and G (... ineffective assistance at trial and sentencing) were precluded... The trial court denied relief on the merits of the remainder of the [claims].

35 27 SER 883. Similarly, Petitioner informed the district court that James s claims of ineffective assistance of counsel were denied in the third PCR proceeding as precluded under Rule 32.2(a)(3). SER 886. Indeed, in every subsequent pleading and brief filed by Petitioner before Petitioner s motion for rehearing in the Ninth Circuit, Petitioner consistently characterized the denial of James s IAC claims in the third PCR petition as based solely on procedural grounds. In sum, the record overwhelmingly supports the conclusion of the court below that the state court did not adjudicate James s penalty phase IAC claim on the merits. B. Waiver of AEDPA s standard of review is not an issue in this case. Petitioner argues that the Ninth Circuit s decision conflicts with other circuits rulings that when a state court adjudicates a federal claim on the merits, AEDPA s deferential standard of review is mandatory and cannot be waived by the state. PFC at This is a false argument, for two reasons. First, as demonstrated above, the record in this case powerfully supports the Ninth Circuit s conclusion that the state court did not in fact adjudicate the merits of the IAC claim. Without a state court adjudication of the merits, 2254(d) is inapplicable to the claim. Cone, 556 U.S. at 472. The state cannot possibly waive an already inapplicable standard of review. The record in this case is starkly different from the cases Petitioner cites for the proposition that AEDPA deference cannot be waived. PFC at In each of these cases, the

36 28 state court explicitly adjudicated the merits of the federal claim. Second, Petitioner misrepresents the court of appeals opinion. The court below did not rule, as Petitioner asserts, that Petitioner waived AEDPA s standard of review. The court of appeals explicitly stated that if the state court had denied James s IAC claim alternatively as precluded and on the merits, the state court s ruling on the claim would be subject to deferential review under AEDPA. 679 F. 3d at 802 (emphasis added). The court below simply stated that Petitioner had waived any contention that the third PCR court adjudicated the merits of the claim, after arguing several times over a thirteen year span that the third PCR court had denied James s IAC claim solely as precluded. Id. Waiving a line of argument about the record in a case is not the same as waiving a mandatory standard of review. Petitioner has conceded this very point in quoting language from a Tenth Circuit decision: It is one thing to allow parties to forfeit claims, defenses, or lines of argument; it would be quite another to allow parties to... bind us to application of an incorrect legal standard... PFC at 14 (quoting Gardner v. Galetka, 568 F. 3d 862, (10th Cir. 2009)) (emphasis added). Petitioner s waiver argument is a red herring. 2. The Court of Appeals Appropriately Granted Habeas Relief. The court of appeals was within its discretion to grant habeas relief without the unnecessary time and expense of conducting an evidentiary hearing in the

37 29 district court. This Court and the lower federal courts have consistently approved of granting habeas relief without a hearing when an expanded record reveals that there are no disputed facts and that petitioner is entitled to relief. The Petition for Certiorari does not cite a single case or other authority for its argument to the contrary. This Court recognized almost eighty years ago that habeas relief on the basis of an expanded record alone is appropriate when the state does not put in issue any of the facts alleged in the petition and instead argues incorrectly that the petitioner s facts do not state a claim under federal law. Mooney v. Holohan, 294 U.S. 103, (1935). In several decisions since Mooney, this Court has affirmed the authority of federal courts to discharge a habeas petitioner from state custody, without conducting an evidentiary hearing, when the facts are undisputed and establish a denial of petitioner s constitutional rights. Browder v. Director, 434 U.S. 257, 266 n. 10 (1978); Walker v. Johnston, 312 U.S. 275, 284 (1941) ( [O]n the facts admitted, it may appear that, as a matter of law, the prisoner is entitled to the writ and to a discharge ). In Hitchcock v. Dugger, 481 U.S. 393 (1987), without explicitly discussing the issue, this Court ruled unanimously that a 2254 petitioner was entitled to habeas relief on his death sentence without the evidentiary hearing his counsel had sought, but was denied, in the district court. 481 U.S. at 395, 399. Other circuits considering this issue have consistently followed the Mooney-Browder rule, and are unanimously in accord with the Ninth Circuit decision in this case. See Noble v. Kelly, 246 F. 3d 93,

38 30 (2d Cir.2001) (per curiam), cert. denied, 534 U.S. 886 (rejecting state s argument that district court erred in granting writ without evidentiary hearing); Tague v. Puckett, 874 F. 3d 1013, 1015 (5th Cir. 1989) (upholding district court s grant of habeas without hearing, over state s objection, citing Rule 8(a), Rules Governing 2254 Cases). Additionally, numerous lower courts have granted habeas relief on an expanded record without the state insisting on an evidentiary hearing requiring the petitioner to prove the facts in his affidavits. Libberton v. Ryan, 583 F. 3d 1147, 1165, 1174 (9th Cir. 2009); Bell v. Miller, 500 F. 3d 149, 157 (2d Cir. 2007); Mathis v. Zant, 903 F. 3d 1368, 1370 (11th Cir. 1990) (district court granted relief based on affidavits alone; state did not appeal on this ground). Sound policy considerations support this unanimity in the case law. The Rules Governing 2254 Cases in Federal Courts authorize expanding the record to serve as an alternative to time-consuming, costly and... unnecessary evidentiary hearings. 28 U.S.C. 2254, Rule 7, Advisory Committee Notes. When the court reviews an expanded record and determines that no hearing is required, most petitions are dismissed, but in unusual cases the court may grant the relief sought without a hearing. 28 U.S.C. 2254, Rule 8, Advisory Committee Notes (emphasis added). James submitted over sixty exhibits to the district court setting forth an abundance of mitigation evidence that penalty phase counsel failed to present. This evidence came in many forms, including excerpts from the state court record revealing powerful evidence never offered as mitigation, James s school records, court records relating to James s biological family,