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Warren Wesley Summerlin v. Dora B. Schriro, Director of Arizona Department of Corrections
Citations: 427 F.3d 623; 2005 U.S. App. LEXIS 22316; 2005 WL 2621506Docket: 98-99002
Court: Court of Appeals for the Ninth Circuit; October 17, 2005; Federal Appellate Court
Warren Wesley Summerlin appealed the denial of his habeas corpus petition, claiming ineffective assistance of counsel during the penalty phase of his capital murder trial. The Ninth Circuit reversed the district court's judgment, concluding that Summerlin did indeed receive ineffective assistance. The case, previously reviewed by the Supreme Court of Arizona and subjected to multiple unsuccessful post-conviction attempts, returned to the Ninth Circuit following a Supreme Court mandate. Initially convicted of murdering Brenna Bailey and sentenced to death, Summerlin faced procedural complexities, including a prior three-judge panel's mixed ruling and the Supreme Court's decision in Ring v. Arizona, which invalidated Arizona's death penalty statute for sentencing by a judge instead of a jury. The Ninth Circuit, after en banc review, upheld the conviction but determined that Ring applied retroactively, necessitating the vacating of Summerlin's death sentence. However, the Supreme Court reversed this decision, ruling that Ring did not retroactively apply to cases final on direct review and remanded to consider whether Summerlin received ineffective assistance of counsel during sentencing, in violation of his Sixth Amendment rights. Summerlin's legal claims include whether his court-appointed public defender had a conflict of interest that negatively impacted her representation during a critical stage of the proceedings, whether he was denied due process because the trial judge was under the influence of marijuana during the trial and sentencing, and whether cumulative errors warrant the reversal of his sentence. The petition for a writ of habeas corpus is governed by pre-AEDPA law due to its filing date. Under this law, claims of ineffective assistance of counsel are reviewed as mixed questions of law and fact, with de novo review applied to the legal questions and clear error standard for factual findings. The court does not consider state court legal conclusions under the "objectively unreasonable" standard but resolves issues based on ordinary legal evaluation. The primary issue determined was whether Summerlin received effective assistance of counsel during sentencing, which the court concluded he did not. The Sixth Amendment guarantees the right to effective counsel in all critical stages of criminal proceedings, including capital sentencing. To prove ineffective assistance, Summerlin must show that his counsel's performance was unreasonably deficient and that this deficiency likely altered the outcome of the sentencing. The Supreme Court has refrained from providing specific guidelines for attorney conduct, emphasizing that attorney performance should be assessed based on reasonableness under prevailing professional norms. The Court has endorsed the ABA Standards for Criminal Justice as benchmarks for criminal defense attorney obligations, particularly regarding the duty to investigate. Attorneys are required to conduct prompt investigations of case circumstances, exploring all relevant avenues and securing information from prosecution and law enforcement, irrespective of the defendant's admissions or intentions to plead guilty. In capital penalty phase proceedings, where defendants have a constitutional right to present mitigating evidence, the attorney's duty to investigate becomes crucial. Counsel must prepare thoroughly to present and elucidate the significance of available mitigating evidence. While strategic trial choices are generally respected, they must follow reasonable investigations or decisions that deem further investigation unnecessary. Specifically during penalty phase proceedings, there is a duty to investigate the defendant's background and personal circumstances, as factors such as disadvantage or mental health issues may render a defendant less culpable. It is essential to uncover all relevant mitigating information for consideration during the capital sentencing phase. The investigation into a defendant's background should encompass social factors and evidence of family abuse, as established in various case law. Defense attorneys are mandated to investigate and present mitigating evidence, including mental health records and the defendant's physical health history, particularly concerning potential organic brain damage and related disorders. Additionally, a thorough review of the defendant's history of drug and alcohol abuse is necessary. It is essential for defense counsel to personally examine the prosecution's evidence for the penalty phase and to communicate with the defendant about the preparation of a defense strategy. The excerpt highlights that the attorney representing Summerlin failed to conduct any meaningful investigation into his family and social history, neglecting to speak with family or friends. The attorney's reliance on pre-trial competency evaluations for developing a mental health defense was inadequate, as these were intended for a different purpose. Had the attorney pursued even a basic investigation, he would have uncovered significant mitigating evidence regarding Summerlin's abusive upbringing, mental health issues, and learning disabilities. The attorney's lack of initiative in exploring mental health defenses and failure to understand their relevance at the penalty phase were evident during post-conviction hearings, revealing a substantial deficiency in the representation Summerlin received. The individual questioned stated no awareness of a connection between organic damage and psychomotor seizures and did not recall learning about Warren Summerlin's mumps at birth. The attorney for Summerlin did not investigate critical mental health mitigation evidence prior to trial phases, despite having preliminary information from a previous attorney. The failure to investigate mental impairment when on notice constitutes deficient performance, as established in case law. Summerlin's trial attorney was aware that the prosecution would call two psychiatrists, Dr. Bendheim and Dr. Tuchler, as witnesses but did not interview them beforehand. The attorney's lack of preparation, including failing to review evidence known to be presented by the State, did not meet the objective standard of reasonable performance expected in penalty phase defense. The obligation for defense counsel to investigate relevant evidence, including that held by the prosecution, is underscored by American Bar Association standards and affirmed by the Supreme Court, which deemed such failures as indicative of subpar legal representation. The Court emphasized the critical role of thorough investigation by defense counsel, particularly in capital cases, highlighting that failure to examine available evidence undermines the defense's ability to counter the prosecution's case for aggravation. In this instance, the defense attorney for Warren Summerlin did not meet with him at all during the month between the verdict and the penalty phase hearing, which is a significant lapse in representation. The attorney acknowledged a lack of consultations and admitted that he would have recorded any meetings had they occurred. The Court referenced prior cases establishing that inadequate consultation can indicate deficient performance by counsel. Specifically, it noted that the absence of meetings and investigations constitutes a failure to meet the Sixth Amendment's standards for effective assistance. Additionally, capital defense attorneys have an obligation not only to investigate potential mitigating factors but also to present them, and failure to do so is considered ineffective assistance of counsel. Summerlin's attorney failed to present any mitigating evidence during the penalty phase of the trial, instead suggesting that the judge review a pre-trial report by Dr. Tatro that was included in the presentence report. The penalty phase was notably brief, lasting only twenty-six pages of transcript, with much of it consisting of dialogue between counsel and the court. The State argued two statutory aggravating factors: Summerlin's prior felony conviction involving violence and the heinous nature of the current capital crime. The State's case relied on a single exhibit related to the aggravated assault conviction and concluded its argument in just one page of transcript. During the defense's case in mitigation, a consulting psychiatrist was called as a witness, but Summerlin interrupted and requested that the witness not be presented. After a short recess, the defense rested without calling any witnesses, despite the judge's reminder that this was the designated time for aggravation and mitigation. The attorney indicated he would rely solely on Dr. Tatro's report, and the State then presented rebuttal witnesses. The defense's argument against a death sentence was limited to three pages of transcript. Ultimately, Summerlin did not present any affirmative or rebuttal evidence, despite the availability of substantial mitigating factors related to his family history, abuse, physical impairments, and mental disorders. Specifically, regarding the aggravated assault conviction stemming from a road rage incident, where Summerlin brandished a knife at a driver who had injured his wife, the attorney acknowledged knowledge of mitigating circumstances but chose not to present them to the sentencing judge. Warren Summerlin's penalty phase attorney failed to present mitigating evidence related to his aggravated assault conviction during sentencing, despite knowledge of critical factors that could have influenced the court. The prosecution introduced a certified copy of the conviction as the sole evidence, while the defense did not counter this with any mitigation or rebuttal evidence. Additionally, the presentence report, which contained hearsay and damaging opinions about the crime, was not challenged by Summerlin's counsel, who even encouraged the judge to review it. This lack of action by counsel is identified as deficient performance under the Sixth Amendment, as it fell below reasonable standards for effective representation. The State's assertion that Summerlin requested the omission of mitigating evidence is unsupported by the record; during the penalty phase, there was a discussion about calling a psychologist that suggests Summerlin did not fully oppose presenting mitigating evidence. Overall, the failure to argue mitigating circumstances may have unjustly influenced the sentencing outcome. The defendant, represented by Mr. Klink, has chosen not to present any witnesses for mitigation during the sentencing phase, a decision made with the defendant's consent. The court, presided over by the judge, confirms this choice and emphasizes the gravity of the situation, explaining to the defendant, Mr. Summerlin, that he faces a possible sentence of life imprisonment or death. The court clarifies that the decision not to call mitigation witnesses is final and that this is the only opportunity to do so. Mr. Summerlin acknowledges his understanding of this information. Subsequent testimony from Mr. Summerlin's attorney reveals a lack of recollection regarding a private conference with the defendant that occurred after a witness, Dr. Tatro, was called to the stand. The attorney confirms that records indicate a discussion took place, resulting in the withdrawal of Dr. Tatro as a witness and the defendant's informed decision to decline his right to present mitigation witnesses. However, the attorney expresses uncertainty about the specifics of that conversation, acknowledging that he has no memory of it. Summerlin did not testify about his conversation with his attorney, leaving no record to support the claim that he directed his attorney not to present any penalty phase defense. The record shows only a spontaneous objection by Summerlin to one witness, with no evidence of an instruction to exclude mitigating evidence or rebuttal to aggravation. His attorney clarified that Summerlin intended to rely on a prior evaluation by Dr. Tatro and expressed confidence in Dr. Garcia, suggesting he was open to mental health evidence being presented. This insufficient record does not establish that Summerlin wished to waive a mitigation defense. Relevant case law indicates that merely instructing not to call specific witnesses does not absolve counsel from investigating mitigating evidence. Even if Summerlin had instructed his attorney not to present a mitigation defense, this would not affect the ineffectiveness of counsel, who failed to investigate mitigating factors thoroughly. In capital cases, attorneys have a heightened duty to conduct exhaustive investigations and consult with their clients regarding the risks and consequences of trial decisions. A defense attorney must inform the client of potential outcomes and ensure that any decision to abandon investigation into mitigating evidence is made knowingly and informed. Thus, a lawyer who follows a client's directive to forgo investigation must first confirm the client understands the implications of such a decision. A lawyer's obligation to investigate is deemed nearly absolute, irrespective of a client's preferences. In the case of Silva, the court found that an attorney's failure to investigate family background, despite a client's instruction not to call certain witnesses, constituted inadequate legal representation. Attorneys must conduct reasonable investigations to make informed decisions about their defense strategy, even if clients limit certain avenues of inquiry. This duty is particularly critical in capital murder cases, where due process requires that a defendant's waiver of legal options must be knowing, voluntary, and intelligent, with a determination of the defendant's mental capacity made at the time of the waiver. The court has maintained that an attorney's professional duties are not diminished by a client's attempts to restrict defense strategies. In applying these principles to the case of Summerlin, it was determined that the attorney's failure to present mitigation evidence was unjustifiable. Specifically, the attorney did not conduct a sufficient investigation, failed to consult with Summerlin before the penalty phase, and did not ensure that Summerlin could provide informed consent to forgo a mitigation defense. Furthermore, Summerlin's spontaneous objection did not equate to a clear directive against pursuing a penalty phase defense. The failure to provide a mitigation defense effectively conceded that the death penalty should be imposed, necessitating that the court ensure Summerlin's decision was competent, voluntary, intelligent, informed, and knowing. Under Arizona law, the absence of mitigating evidence mandated a death sentence in this case, which required a demonstration that Summerlin's decision met the aforementioned criteria. Summerlin's attorney's failure to present mitigating evidence at the penalty phase was deemed constitutionally ineffective assistance, but to warrant habeas relief, Summerlin must also show prejudice from this ineffective assistance. Under the Strickland standard, this means demonstrating a reasonable probability that the outcome would have been different but for the attorney's errors. The evidence of prejudice is significant, as the lack of a mitigation defense virtually ensured a death sentence due to Arizona law, which mandates the death penalty when a defendant has a qualifying prior conviction without mitigating evidence. Summerlin's prior "road rage" conviction qualified as a dangerous felony, making a death sentence almost certain without mitigating factors. Additionally, the case was not straightforward for a death penalty; the initial prosecutor believed a death sentence was unlikely and even proposed a favorable plea agreement for Summerlin to plead guilty to second-degree murder and aggravated assault, leading to a substantially lesser sentence. This plea agreement was later withdrawn due to changes in legal representation, further illustrating that the case lacked clarity as a capital case. A measure for assessing prejudice in capital penalty phase proceedings involves reweighing aggravating evidence against the totality of mitigating evidence, as established in Wiggins. Arizona law mandates that aggravating factors must be proven beyond a reasonable doubt. In this case, the sentencing judge relied on two aggravating circumstances: a prior felony conviction involving violence and the commission of the offense in an especially heinous manner. No mitigating circumstances were presented to the judge. Significant mitigating factors existed, including the absence of substantial criminal history and psychiatric evidence indicating a lack of impulse control and organic brain dysfunction, which could counter the state's claims of heinousness. The state’s argument for premeditation was based on the notion that it occurred instantaneously during the crime, a concept insufficient for establishing the heinous aggravator. The evidence supporting the aggravating factors was weak, particularly against the requirement for proof beyond a reasonable doubt. In contrast, the mitigating evidence highlighted Summerlin's troubled childhood, characterized by physical and mental abuse, offering a compelling case for mitigation. Summerlin was diagnosed with multiple mental health disorders, including learning disabilities, paranoid schizophrenia, explosive personality disorder, and organic brain impairment. A psychiatrist assessed him as deeply disturbed and unable to control his emotions, which is pertinent for mitigating factors in his case. The State argued that mitigating evidence was adequately presented in a letter from Dr. Tatro, yet this letter was not a psychiatric evaluation intended for the penalty phase; it focused on Summerlin's competency for trial and potential insanity defense under Arizona's M'Naghten standard. This standard requires proof that the accused did not understand the nature of their actions or that those actions were wrong at the time of the offense. The excerpt emphasizes that mental health evaluations for competency should not substitute for mitigation evidence in a penalty phase. Dr. Tatro, as a psychologist, did not address psychomotor epilepsy, a significant mental health defense that could have been pursued. Evidence indicated that Summerlin experienced a temporal lobe seizure during the crime, which could have impaired his control. Other available psychiatrists noted they had not tested for this condition, but acknowledged its potential impact on Summerlin's behavior at the time of the murder. Significant mitigation testimony was available to Summerlin's attorney but not included in Tatro's competency letter. Dr. Tuchler, another physician examining Summerlin, acknowledged at the state habeas evidentiary hearing that subsequent material suggested a complete loss of impulse control, impacting Summerlin's ability to conform to legal standards. The assertion that Tatro's letter fully represented mitigating factors is incorrect. The collective mitigating evidence is much stronger than what was deemed sufficient in Wiggins, where the Supreme Court emphasized that had the jury been aware of the petitioner's traumatic life history, there was a reasonable chance that at least one juror would have re-evaluated the case. Although the evaluation of prejudice is considered in the context of judge-sentencing, the outcome remains unchanged. Summerlin's counsel failed to present evidence mitigating the aggravated assault special circumstance and the alleged heinous nature of the crime, which diminishes confidence in the death sentence given that the State needed to prove aggravating factors beyond a reasonable doubt. The lack of a comprehensive mitigation defense undermines confidence in the trial judge's decision. It is concluded that had adequate mitigating evidence been presented, there is a "reasonable probability" that a different sentencing outcome would have occurred. The court holds that Summerlin has demonstrated sufficient prejudice under the standards of Strickland, warranting habeas corpus relief. The previous affirmation of Summerlin's conviction is reversed, and the denial of the habeas corpus writ concerning the penalty phase is overturned, with instructions for the writ to be granted unless the State initiates resentencing within a reasonable timeframe determined by the district court. Other issues raised by Summerlin on appeal are deemed unnecessary to address. The concurrence and dissent by Judge Scannlain indicate agreement on the counsel's failure to investigate mitigating evidence but disagreement on the conclusion that the death penalty affirmance violated constitutional standards, advocating for affirming the district court's denial of the habeas corpus petition. Counsel's failure to contact or interview the prosecution's rebuttal witnesses is not considered constitutionally deficient performance, as it risks establishing a "per se" rule contrary to Strickland v. Washington. To prevail under Strickland, Summerlin must demonstrate "a reasonable probability" that a different outcome would have occurred but for counsel's deficient performance, which he has failed to do. The district court determined that most mitigating evidence was already presented to the sentencing judge, including details of Summerlin's troubled childhood and mental health issues as outlined in Dr. Tatro's report. Additional evidence regarding ammonia and electroshock treatments, although tragic, would not have significantly impacted the judge's understanding of Summerlin's background. Furthermore, the omission of evidence concerning the circumstances of Summerlin's prior felony conviction is deemed irrelevant to the question of prejudice, as this conviction was a statutory aggravating factor. Despite counsel’s inadequate investigation, the available mitigation evidence was largely before the sentencing judge, leading to the conclusion that Summerlin does not meet the second prong of the Strickland test. The district court's ruling on the conflict of interest claim is also affirmed, indicating no prejudice resulted from a brief romantic encounter between the prosecutor and Summerlin’s first attorney. Affirmation of the district court's ruling is warranted regarding the state trial court's impairment, as the sentencing judge's alleged marijuana addiction did not impact his performance in Summerlin's case. The state court's upholding of the death penalty adhered to constitutional standards, justifying the district court's denial of the habeas corpus petition. Additionally, dissent arises concerning the characterization of counsel's failure to contact or interview Dr. Bendheim and Dr. Tuchler as constitutionally deficient performance. The cited case of Rompilla v. Beard, which established a standard for ineffective assistance, is distinguished; unlike in Rompilla, Summerlin's counsel was familiar with the prosecution's aggravating evidence, which relied solely on Summerlin's prior felony conviction. Counsel obtained and examined the doctors' reports, effectively cross-examining them during the trial. The lack of pre-hearing contact with the doctors does not equate to deficient performance, as no additional relevant information was likely to be gained. The Supreme Court's caution against establishing rigid performance evaluation guidelines is overlooked by the court in this instance.