Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding D.C. No. 4:01-cv-00645-RCC
The opinion of the court was delivered by: Graber, Circuit Judge:
February 16, 2012-San Francisco, California
Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber; Partial Concurrence and Partial Dissent by Judge Berzon
Petitioner Kevin Artice Miles appeals the district court's denial of his habeas petition, brought pursuant to 28 U.S.C. § 2254. Petitioner challenges only his capital sentence; he does not challenge his underlying felony murder conviction, arising from his role in a car-jacking.*fn1 Petitioner argues that his counsel was ineffective at sentencing because she failed to focus on Petitioner's drug addiction (rather than on intoxication), enlisted an unqualified expert, and failed to investigate Petitioner's social history thoroughly enough.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
FACTUAL AND PROCEDURAL HISTORY
On an afternoon late in 1992, Petitioner was standing on a street corner in Tucson, Arizona, with Levi Jackson and Ray Hernandez. Jackson was carrying a pistol that the three of them had just obtained together; he had told Petitioner and Hernandez of his plan to commit a car-jacking. Specifically, according to Petitioner's post-arrest statement to the police, Jackson had told them that he was "gonna get somebody's car, take 'em off in the middle of the desert, and shoot 'em." At the time, Jackson and Hernandez were both 16 years old. Petitioner was 24 years old.
When Patricia Baeuerlen drove up and stopped at the corner, Jackson approached her car and asked for "a light." When she turned to reach her cigarette lighter, Jackson pointed the weapon at her and told her to move over. He unlocked the car to allow Petitioner and Hernandez to enter and sit in the rear. While Jackson drove the car out to the desert, Hernandez held the pistol, but Petitioner also held it at some point. They drove Baeuerlen out of the city, into the desert, and stopped at a dirt road. There, Jackson told Baeuerlen to get out of the car and take off her shoes and jacket. She obeyed. After taunting and harassing Baeuerlen for five to ten minutes, Jackson suddenly shot her in the chest. Baeuerlen died as a result of the gunshot. According to testimony presented at trial and sentencing, Jackson-not Petitioner-shot Baeuerlen as he and Petitioner were walking away from Baeuerlen and returning to the car. Throughout the ordeal, starting with the drive to the desert, Baeuerlen was pleading for her life.
After the shooting, Jackson, Petitioner, and Hernandez drove away. According to Petitioner's post-arrest statement, he thought that Baeuerlen was still alive when they left her in the desert. No one sought help for Baeuerlen. Later the same day, Petitioner used Baeuerlen's ATM card, and a PIN that he had found in her belongings, to take money out of her bank account. The next day, Petitioner drove Baeuerlen's car to Phoenix, where he went shopping at malls, exchanged Baeuerlen's children's Christmas presents for other goods, and went drinking with old friends. Petitioner told those friends about the murder, insisting that he did not pull the trigger, but smiling and laughing as he related the events.
B. Arrest and Interrogation
In the early hours of the following morning, that is, the second day after the murder, police arrested Petitioner in Chandler, Arizona, following a high-speed chase in Baeuerlen's car. The police found Baeuerlen's ATM card, credit card, jewelry, and other personal items in his possession. Later that morning, Tucson detectives began a tape-recorded interrogation that lasted about five hours. During the interrogation, Petitioner initially explained his possession of the car by telling the detectives two different stories, neither of which placed him at the scene of the murder. But, after several hours of interrogation, Petitioner admitted to his involvement in the murder. Specifically, he admitted to knowing of Jackson's plan to car-jack and shoot someone, to participating in obtain- ing the pistol with Jackson and Hernandez, to holding the weapon at some point during the drive out to the desert, and to watching Jackson shoot Baeuerlen.
Soon after Petitioner's arrest, Barbara Sattler was appointed as his counsel and represented him through trial and sentencing. After a jury convicted Petitioner of first-degree felony murder, dangerous kidnapping, and dangerous armed robbery,*fn2 the trial court reviewed a pre-sentence report ("PSR") and held a sentencing hearing.
The PSR states that the crime occurred at around 1:30 p.m. and that Petitioner reported having used crack cocaine "four or five hours earlier" and not having slept the night before. The PSR also contains statements from Petitioner that he expected to get money from the car-jacking and that he wanted to commit another robbery with the pistol. The PSR repeats Petitioner's assertions that he did not believe that Jackson would kill Baeuerlen and that Petitioner thought that Jackson would have killed him if he had tried to stop the murder.
The social history section of the PSR contains the following information. Petitioner was adopted at the age of 4 months. His adoptive mother was an alcoholic who nevertheless maintained employment, eventually rising past jobs as a waitress and cook to become a nursing home administrator. Although Petitioner is black, his adoptive mother was white, which caused some degree of social problems; those problems grew worse when Petitioner and his mother moved to a more affluent neighborhood. Petitioner found a way to fit in by becoming a "class clown" and by playing basketball. Indeed, despite poor grades, he graduated from high school and won a basketball scholarship to a Bible college, but he dropped out of college after only a week. Petitioner later served in the Navy, where he was disciplined for substance abuse and assault before receiving an other-than-honorable discharge. He also married and had a child, though he later grew apart from his wife and began using drugs. His wife eventually left him, leading him to be evicted from their apartment. A month later, his mother died, and his drug habit grew worse.
At the sentencing hearing, Sattler called an expert, Dr. Martin Levy, Ph.D., to discuss Petitioner's drug use. Dr. Levy is a clinical psychologist who had evaluated Petitioner during a two-hour session. Dr. Levy testified that Petitioner reported using crack cocaine the night before the car-jacking. In particular, Dr. Levy testified that Petitioner's "mental state was compromised by intoxication . . . with cocaine." (Emphasis added.) Dr. Levy also testified that Petitioner's description of his mental state during the crime suggested a state of "disassociat[ion],"*fn3 which was consistent with Petitioner's reported drug use.
The prosecutor objected to Dr. Levy's testimony on the ground that it lacked foundation. The sentencing judge agreed and determined that, because Dr. Levy had insufficient knowledge of when and in what quantities Petitioner used drugs, he could not testify with specificity as to Petitioner's level of impairment or judgment at the time of the crime. Nevertheless, in Sattler's closing argument, she reiterated her position that Petitioner was "under the influence of drugs and alcohol that day."
Sattler focused only briefly on Petitioner's social history at sentencing. Two character witnesses testified about his background and his nonviolent nature.*fn4 Indeed, Sattler's closing arguments characterize him as a relatively normal person- one who graduated from high school, who usually maintained gainful employment, who served in the military and completed most of his term of service, who married, and who had a child-but who made some mistakes after his wife left and his mother died.
Ultimately, the trial judge sentenced Petitioner to death by lethal injection.*fn5 In so doing, the trial judge cited three aggravating factors:*fn6 (1) that Petitioner had previous convictions for three separate crimes of violence (armed robberies), (2) that Petitioner committed the car-jacking in pursuit of pecuniary gain, and (3) that the murder was committed in an especially cruel manner.*fn7 The trial court also noted that the murder was senseless, in that it was unnecessary to the escape of Petitioner and his accomplices.
In mitigation, the trial judge rejected most of the potential mitigating factors. He rejected the contention that Petitioner was only a minor participant in the crime. The trial judge also rejected unforeseeability*fn8 of the murder and Petitioner's age as mitigating factors. As to expressions of remorse, the trial judge found them insincere and, in any event, outweighed by the aggravating factors listed above:
The court finds that the defendant's expression of remorse was insufficient to outweigh the aggravating circumstances of this case. No remorse was evidenced when the defendant went to Phoenix, after the murder, in the car of Miss Baeuerlen, to party with his friends. No remorse was evidenced when the defendant was captured by the Phoenix Police. No remorse was evidenced when the defendant, a day after the murder, was able [to] laugh when detailing the murder . . . to a boyhood friend in Phoenix.
The trial judge rejected the possibility of rehabilitation, finding no evidence to support it. He went on to note that, even if he were to find a possibility of rehabilitation, that would not outweigh the aggravating factors. The trial judge also found that Petitioner's cooperation with the police was purely self-interested and not sufficient "to establish a mitigating circumstance or to outweigh the aggravating circumstances."
The trial judge did consider mitigation arising from the nature of the murder conviction-felony murder, rather than pre-meditated murder-but found it insufficient to outweigh the aggravating factors. The trial judge also considered Peti- tioner's reputation for nonviolence but did not find it sufficient to outweigh the aggravating factors, especially in view of Petitioner's recent commission of three armed robberies.
Finally, of particular significance to this appeal, the trial judge rejected any drug-related mitigation, stating:
The court finds that there is no credible evidence that the defendant's capacity was impaired or that drugs or alcohol had impaired the defendant's thinking or actions at the time of the crimes in question. . . . The testimony offered by the defendant, from Doctor Levy, Ph.D., as to impairment, was without adequate foundation, and considered by the court to be without value.
D. Post-Conviction Relief Proceedings
On direct appeal, the Arizona Supreme Court affirmed the conviction and capital sentence. State v. Miles, 918 P.2d 1028 (Ariz. 1996). Petitioner did not petition for certiorari to the United States Supreme Court, but he did file a state court petition for post-conviction relief ("PCR") under Rule 32 of the Arizona Rules of Criminal Procedure. The Arizona Superior Court denied Petitioner's PCR petition, rejecting his ineffective assistance of counsel claims on the merits. With respect to Sattler's failure to focus on addiction, the state court concluded both that Sattler's performance was not deficient and that Petitioner failed to demonstrate prejudice. With respect to the other two claims in this case, the state court concluded only that Sattler's performance was not deficient-it made no determination as to prejudice. The Arizona Supreme Court denied the petition for review of the PCR decision.
Before denying Petitioner's PCR petition, the Arizona Superior Court, however, ordered an evidentiary hearing. In preparation for that hearing, Petitioner underwent more extensive psychological testing. Dr. Joseph Geffen, Ph.D., a clini- cal psychologist, prepared a report describing Petitioner as using drugs to "self-medicat[e]" and as having resorted to crime because of "his perceived need for drugs without which he cannot cope." Dr. Levy had described Petitioner's drug use similarly, as self-medication, in his pre-sentence evaluation, but did not connect Petitioner's motivation for his crimes to a need to acquire drugs.
In preparation for the state hearing, Petitioner's counsel hired an investigator to probe further into his social history. The investigator produced a detailed report, containing information gleaned from interviews with many people who knew Petitioner and his mother during his youth. The additional history confirms that Petitioner's mother was an alcoholic and suggests that she may also have used heroin, or at least socialized with those who did. The investigation revealed that his mother worked as a prostitute and perhaps ran her own whorehouse out of her home. When Petitioner was approximately 11 years old, his mother began work at a nursing home (and may have given up prostitution); there, she rose to become an administrator, a position she held until Petitioner's last year of high school, when she was fired for drinking on the job. Additionally, the report characterized Petitioner's hometown of Winslow, Arizona, as being segregated, corrupt, and rife with prostitution, crime, drugs, and gambling. The investigation confirmed that Petitioner and his mother suffered at least some alienation due to their mixed-race household.
The additional social history also suggests that Petitioner's mother was an "extremely protective mother" who made him the center of her life. She was "infatuated" with her son and "coddle[d]" him. She slept in the same bed as Petitioner until he was 14 years old. She "read to him constantly and sang to him when she fed him," past an age considered "normal" by a friend. The additional social history reveals that, although Petitioner's mother disciplined him by spanking him with a hairbrush when he was 4 or 5 years old, she later discontinued the practice and did not physically abuse him.*fn9 She bought Petitioner "everything he wanted" and, when he developed buck teeth, for which other children teased him, she arranged for him to get braces.
The additional social history report went on to discuss Petitioner's relationships with his community. He went to church twice a week for Bible study until at least his junior high school years, receiving a ride from a local bus ministry. When he was in junior high school, his basketball coach frequently drove him home from practices. He became good friends with a local family, spending a great deal of time at their home; indeed, they treated him like their own child. Notably, he remained in contact with members of that family well into adulthood-two of them were character witnesses at his sentencing hearing. According to those two witnesses, Petitioner stayed in touch with them after leaving Winslow and visited them to introduce his wife. One of the witnesses was a close friend when she and Petitioner were both living in Tucson; she was present for the birth of his daughter.
The additional social history investigation also looked into Petitioner's high school years, during which he played on the basketball team and earned a varsity letter in his senior year, helping to win the state championship. He had a close-knit group of five friends, and he was popular with girls.
E. Federal Habeas Proceedings
In late 2001, Petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court granted Petitioner's request for appointment of an investigator and a doctor, and the court later granted requests for more funds for mitigation specialists.
Under the district court's order, Dr. Geffen, who had examined Petitioner during the state post-conviction proceedings, examined him again and prepared another report. In his report, Dr. Geffen stated that, after learning about "modern methods of evaluating mitigation factors in death penalty cases," years after his initial evaluation of Petitioner, he thought that he "had not done as complete an evaluation as possible." Dr. Geffen further concluded: (1) that Petitioner was "experiencing an altered state of mind at the time of [Baeuerlen's] murder;" (2) that, "[a]lthough physically present, [Petitioner] was emotionally and mentally 'not there' in terms of his awareness and appreciation of events around him, due to a dissociative state of mind, during which the event appeared to him as unreal and disconnected from him;" (3) that Petitioner's "substance abuse at the time was part of a lifelong adjustment problem which resulted in a severe state of depression, and that the drugs served the purpose of numbing his perceptions after some catastrophic losses and personal failures, including the loss of his mother and of his ...