Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding D.C. No. CV-98-00430-PHX-MHM.
The opinion of the court was delivered by: Rawlinson, Circuit Judge
Argued and Submitted September 9, 2008-Pasadena, California.
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson; Concurrence by Judge B. Fletcher; Partial Concurrence and Partial Dissent by Judge Kleinfeld
Petitioner Milo Stanley (Stanley) was convicted by a jury of first-degree murder of his wife and five-year-old daughter. The court sentenced Stanley to life in prison for the murder of his wife and to death for the murder of his daughter. Stan-ley's conviction and sentence were affirmed by the Arizona Supreme Court on direct appeal and his state petitions for post-conviction relief were denied. He subsequently filed a petition for writ of habeas corpus in the district court and now appeals the district court's denial of that petition.
Stanley asserts three grounds for relief. First, Stanley contends that his Miranda*fn1 rights were violated when officers ignored his attempted invocation of those rights and continued interrogating him until they secured a confession. Second, Stanley posits that trial counsel rendered ineffective assistance during the guilt phase of trial by failing to present readily available evidence to support an insanity defense and a lack of premeditation defense. Third, Stanley argues that trial counsel rendered ineffective assistance during the penalty phase of trial by failing to investigate and present readily available mitigating evidence. It is the last ground that gives us pause, as we take note of Justice O'Connor's remarks in 2001 that prompted the New York Times to editorialize that the "legal representation afforded most indigent defendants in capital cases" is woefully inadequate. See Editorial, Justice O'Connor on Executions, N.Y. Times, July 5, 2001, at A16.
Because we are convinced that defense counsel's performance did not prejudice Stanley during the guilt phase of the trial, we AFFIRM the district court's denial of Stanley's habeas petition as to the first two grounds. However, because Stanley's allegations raise serious questions and a colorable claim regarding the adequacy of counsel during the penalty phase of the trial, we REVERSE and REMAND that portion of the decision to allow the district court to conduct an evidentiary hearing. We simply cannot in good conscience continue to send men to their deaths without ensuring that their cases were not prejudiced by inadequate legal representation at any phase of the proceedings.
A. Stanley's Interrogation and Confession
Stanley contacted the police on the evening of June 19, 1986, to report his wife and five-year-old daughter missing. See State v. Stanley, 809 P.2d 944, 946 (Ariz. 1991). The next afternoon, with the consent of both Stanley and his father, officers searched the pair's auto repair shop, where Stanley's wife's sisters had reported discovering bloodstains and a spent shell casing in the wife's car. See id. at 946-47. While officers searched the shop, Stanley was asked and agreed to accompany Officer Saravo (an investigator) to his office at the county building to be interviewed regarding the disappearance of his wife and daughter. See id. at 947. Stanley was specifically informed that he was not under arrest and was not a suspect.
Saravo initially approached the interview as a follow-up to a missing persons report, asking questions to reconstruct the family's activities on the night of the disappearance. He also asked questions to determine where they might have gone. However, there were indications early in the hour-long interview that Saravo suspected Stanley's involvement.
Approximately fifteen minutes into the interview, Saravo began to ask Stanley questions related to the officers' discovery of blood in his wife's car. Approximately twenty minutes into the interview, Saravo turned to questions directed toward Stanley's use of his gun in connection with the car. Approximately twenty-five minutes into the interview, Saravo increased the pressure, but still did not reveal his suspicions. ("Can you tell me any reason why there would be blood on the outside of your vehicle?"); ("Can you tell me any reason why there would be blood on the inside of your vehicle?"); ("I want to tell you right now that there is blood on the vehicle.").
About thirty minutes into the interview, after advising Stanley of his Miranda rights, Saravo sought permission to search Stanley's apartment, to which Stanley consented. Before reading the Miranda warnings, Saravo assured Stanley, "You weren't under arrest and you're not under arrest at this time . . ." He explained that the rights were being read "just because we're going to ask you for a consent to search at this point." After reading Stanley his rights, Saravo again stated, "you're not under arrest at this time . . ."
Stanley granted consent to the search approximately thirty-six minutes into the interview and was allowed to leave to get a drink. When Stanley returned, Saravo began to point out the holes he saw in the story Stanley had related. Finally, approximately forty-five minutes into the interview, Saravo confronted Stanley with his suspicion: "Do you really think somebody actually surprised you (sic) wife at the shop, took your gun and put her in that car and took her out and killed her and brought the car back?" After Stanley answered in the affirmative, Saravo replied, "I don't think that could have happened," and then continued, "I think if that happened, if that in fact is what happened, that person almost had to have been you." When Saravo then asked Stanley who the perpetrator would have "had to have been," Stanley answered, "[m]e." At that point Stanley said, "I think I better talk to a lawyer. I don't want to say any more." After confirming that Stanley did not wish to answer questions, Saravo indicated that he was concluding the interview and stopped the recording. He did not tell Stanley that he was free to leave.
After an unknown period of time elapsed, Saravo turned the tape recorder back on. He purported to recognize Stanley's invocation of his rights ("You have requested to talk to an attorney, you don't have to talk to me."), then confronted Stanley with additional evidence and resumed questioning. ("It appears now that very strongly that your wife has met some foul play, understand?"); ("There's nothing more that you would like to do to locate your wife and child?"). At least ten minutes passed with Stanley sobbing and Saravo coming and going from the room before the tape ran out. Subsequently, Stanley apparently confessed to the killing.
Our colleague in dissent assiduously catalogs every heinous detail of this gruesome crime. See Dissenting Opinion, p. 4177-79. There is no doubt that the facts of this case are repulsive. But that is true for every case where the death penalty is imposed. If the resolution of this case rested on the relative heinousness of the offense, we would have no quarrel with our colleague in dissent. However, our charge is to look at the merits of the legal issues raised rather than to focus on the degree to which we are repulsed by the inevitably grisly details of the case. Indeed, our precedent leaves no doubt that the heinous nature of the underlying offense should not be the determining factor. See Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004) (holding that "counsel's failure to present mitigating evidence can be prejudicial even when the defendant's actions are egregious"); see also Douglas v. Woodford, 316 F.3d 1079, 1091 (9th Cir. 2003) ("The gruesome nature of the killing did not necessarily mean the death penalty was unavoidable." (citations omitted).
B. Admission of the Confession
In denying Stanley's contention that his confession was wrongfully admitted into evidence, "[t]he trial court determined there was neither a Miranda nor an Edwards [v. Arizona, 451 U.S. 477 (1981)] violation because Stanley was not in custody at the time of Saravo's questioning." Stanley, 809 P.2d at 948. On direct appeal, the Arizona Supreme Court agreed, stating that, "[w]hether one is in custody is determined objectively: Under the circumstances, would a reasonable person feel deprived of his freedom of action? Factors indicative of custody include: (1) whether the objective indicia of arrest are present; (2) the site of the interrogation; (3) the length and form of the investigation; and, (4) whether the investigation had focused on the accused." Id. (citations omitted). Applying these factors, the court concluded that Stanley was not in custody and, therefore, Miranda warnings were not required. See id. On that basis, the court rejected Stanley's argument that, under Edwards, questioning should have ceased when he attempted to invoke his Miranda rights. See id. at 948-49.
C. Dissociative Reaction and Insanity
Following his confession, Stanley was arrested. The next day he was seen by Dr. Hammitt, the jail psychiatrist. Among other things, Stanley told Dr. Hammitt that at the time of the killing "he experienced the sensation that he was watching like he wasn't even there." "He told [Dr. Hammitt] that he flew off the wall and shot them."
The dissent represents that Dr. Hammitt "concluded that Stanley was . . . not even remorseful." Dissenting Opinion, p. 4179. This characterization considerably overstates Dr. Hammitt's report. As the dissent notes, Stanley "cried a great deal" during the meeting with Dr. Hammitt, which observation is somewhat inconsistent with a complete lack of remorse. In fact, Dr. Hammitt described Stanley as "quite emotionally distraught," and "anguished, sobbing [and] unable to relate appropriately." In addition, Dr. Hammitt did not report that Stanley lacked remorse. Her precise statements were that "[n]othing [Stanley] said indicated to me any degree of remorse per se" and that Stanley "never volunteered any comments about remorse . . ." That is a far cry from a definitive statement that Stanley lacked remorse.
Prior to trial, defense counsel sought to exclude the notes regarding Dr. Hammitt's interview of Stanley (the Hammitt interview) on the basis of doctor-patient privilege. The court granted the motion. Defense counsel did not provide information regarding the Hammitt interview to the defense mental health experts who evaluated Stanley.
Upon learning of this information after trial, the defense experts declared that the information would have changed their opinions regarding Stanley's mental state at the time of the killings. Had they been provided with the Hammitt interview, both experts would have testified that Stanley most likely suffered from a dissociative reaction at the time of the killings, making it unlikely that he acted with premeditation.
"We review de novo the district court's denial of a petition for a writ of habeas corpus." Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005), as amended (citation omitted). The district court's factual findings are reviewed for clear error. See id. We review the district court's determination that a petitioner is not entitled to an evidentiary hearing for abuse of discretion. See Schriro v. Landrigan, 127 S.Ct. 1933, 1939 (2007).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), . . . a federal court can grant an application for a writ of habeas corpus on behalf of a person held pursuant to a state-court judgment if the state-court adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
Yarborough v. Alvarado, 541 U.S. 652, 655 (2004) (citation and internal quotation marks omitted). "[C]learly established law as determined by [the Supreme Court] refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions . . ." Id. at 660-61 (citation and internal quotation marks omitted). "[Courts] look for the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. at 661 (citation and internal quotation marks omitted).
The court may grant relief under the 'unreasonable application' clause if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case. The focus of [this] inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and [the Supreme Court] has stressed . . . that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).
A. Admission of Stanley's Confession
To be entitled to relief based on an alleged violation of his Miranda rights, Stanley must show that the state court's determination that he was not in custody when he attempted to invoke his right to silence and right to have an attorney present during questioning either was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Stanley has failed to make this showing and, therefore, is not entitled to relief on this claim.
 Under clearly established federal law, Miranda warnings are required "only where there has been such a restriction on a person's freedom as to render him 'in custody.' " Stans-bury v. California, 511 U.S. 318, 322 (1994) (citations omitted).*fn2
The "ultimate inquiry" underlying the question of custody "is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. (citation and alteration omitted). To answer this question, the reviewing court looks to the totality of the circumstances, id. at 322, that might "affect[ ] how a reasonable person in that position would perceive his or her freedom to leave." Id. at 325.
 On direct review, the Arizona Supreme Court identified eight facts which, together, rendered Stanley's interview non-custodial.*fn3 First, the investigation that led officers to question Stanley was initiated by Stanley's report that his wife and daughter were missing. See Stanley, 809 P.2d at 948. Second, the interview took place at the county building rather than the police station. See id. Third, Stanley voluntarily agreed to the interview. See id. Fourth, he was told that he was not under arrest and was not a suspect. See id. Fifth, he was not disarmed of his hunting knife. See id. Sixth, the investigation was focused "on a search for missing persons . . ., not on a homicide." Id. Seventh, during the interview Stanley left the office, unaccompanied, to get something to drink and use the restroom. See id. Eighth, there was no display of weapons by police, and no use of physical force or threatening language. See id.
Stanley contends that the state court failed to address the increasingly accusatory nature of the questioning to which he was subjected. This argument lacks merit. An officer's expressed suspicions may be relevant to the issue of custody. See Stansbury, 511 U.S. at 325. However,
[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. . . . In sum, an officer's . . . beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the ...