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Ramirez v. Ryan

United States Court of Appeals, Ninth Circuit

September 11, 2019

David Martinez Ramirez, Petitioner-Appellant,
v.
Charles Ryan, Respondent-Appellee.

          Argued and Submitted January 16, 2019 San Francisco, California

          Appeal from the United States District Court No. 2:97-cv-01331-JAT for the District of Arizona James A. Teilborg, District Judge, Presiding

          Paula K. Harms (argued) and Timothy M. Gabrielsen, Assistant Federal Public Defenders; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

          John P. Todd (argued), Special Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

          Before: Sidney R. Thomas, Chief Judge, and Marsha S. Berzon and Richard R. Clifton, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus / Death Penalty

         The panel affirmed in part and reversed in part the district court's denial of David Ramirez's habeas corpus petition challenging his Arizona conviction and death sentence for the murders of his girlfriend and her daughter, and remanded.

         The panel explained that the district court-on remand for reconsideration of whether post-conviction counsel's ineffectiveness constituted cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural default of Ramirez's claim of trial counsel's ineffectiveness-erred by conducting a full merits review of the underlying ineffective assistance of counsel claim on an undeveloped record, rather than addressing whether the claim was "substantial." The panel held that the underlying claim of ineffective assistance of trial counsel was substantial, thus constituting "prejudice" under Martinez, because trial counsel failed to present or pursue evidence of Ramirez's intellectual disability, failed to provide relevant and potentially mitigating evidence to the psychologist who evaluated Ramirez, and subsequently relied on the psychologist's report, despite possessing contrary facts. The panel held that Ramirez established cause under Martinez because had post-conviction counsel raised the substantial claim of ineffective assistance of trial counsel, there is a reasonable probability that the result of the post-conviction proceedings would have been different.

         The panel held that the district court erred in denying Ramirez evidentiary development of his ineffective assistance of counsel claim, and that on remand he is entitled to evidentiary development to litigate the merits of his ineffective assistance of trial counsel claim.

         The panel held that the district court correctly concluded that Ramirez's due process rights under Ake v. Oklahoma, 470 U.S. 68 (1985), were not violated, as Ramirez received the assistance of an independent psychologist, and there was no impermissible waiver of self-representation.

         The panel held that the Arizona state courts did not unconstitutionally apply a causal nexus requirement to Ramirez's mitigating evidence in violation of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).

         The panel declined to expand the certificate of appealability to include three uncertified issues.

         Dissenting in part, Judge Berzon would grant a certificate of appealability with regard to Ramirez's claim under Atkins v. Virginia, 536 U.S. 304 (2002) (prohibiting the execution of intellectually disabled persons); hold that the claim relates back to Ramirez's ineffective assistance of counsel claim; and remand to the district court for further proceedings.

          OPINION

          THOMAS, CHIEF JUDGE.

         David Ramirez was convicted by a jury and sentenced to death by a judge for the 1989 murders of his girlfriend, Mary Ann Gortarez and her daughter, Candie. Ramirez appeals the district court's denial of his petition for writ of habeas corpus, raising three certified claims and three uncertified claims. Because Ramirez demonstrated cause and prejudice to overcome the procedural default of his ineffective assistance of trial counsel claim, we reverse the judgment of the district court and remand for the district court to allow evidentiary development of Ramirez's ineffective assistance of trial counsel claim.

         We affirm the district court's conclusion that Ramirez's right to due process under Ake v. Oklahoma, 470 U.S. 68 (1985), was not violated. We also agree that the Arizona state courts did not improperly exclude mitigating evidence that lacked a causal connection to his crime. See McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).[1] We decline to expand the certificate of appealability to include the three uncertified issues raised by Ramirez.

         I

         The central question in this appeal is whether the procedural default of Ramirez's claim of ineffective assistance of trial counsel is excused under Martinez v. Ryan, 566 U.S. 1 (2012). Because post conviction counsel, whom Arizona concedes performed deficiently, failed to raise a substantial claim of ineffective assistance of trial counsel in Ramirez's initial state collateral proceeding, we conclude that the procedural default is excused. Ramirez has an ineffective assistance of counsel claim "that has some merit" under Martinez, 566 U.S. at 14-16, because trial counsel failed to present or pursue evidence of Ramirez's intellectual disability, failed to provide relevant and potentially mitigating evidence to the psychologist who evaluated Ramirez, and subsequently relied on the psychologist's report, despite possessing contrary facts.

         A

         In the early morning hours of May 25, 1989, neighbors alerted the police after hearing screams and thuds coming from the Gortarez apartment.[2] Officers arrived and observed Ramirez, who appeared to be intoxicated, covered in blood. Ramirez v. Ryan, No. CV-97-01331-PHX-JAT, 2016 WL 4920284, at *1 (D. Ariz. Sept. 15, 2016). Officers found Candie's naked body in a bedroom, and Mary Ann's body on the living room floor. Id. Both women had been stabbed multiple times. Id. Ramirez was charged with two counts of first degree murder. Id.

         Ramirez was initially represented by counsel, Mara Siegel, a Maricopa County public defender.[3] This case was Siegel's first capital assignment, and, as she admitted, she was unprepared to represent someone "as mentally disturbed" as Ramirez. Ramirez, through counsel, filed a pretrial motion for appointment of experts, including psychologists and a mitigation expert, among others. In the motion, Ramirez cited Ake and requested the court pay for an independent psychiatric evaluation, a child psychologist, and a mitigation expert to assess his sanity at the time of the alleged offense.

         The trial court denied Ramirez's requests for experts but appointed an investigator to assist Ramirez. During a subsequent pre-trial motions hearing, the investigator explained why a psychologist was important to help determine Ramirez's social upbringing and to collaborate with a mitigation specialist. The trial court expressed disbelief and confusion at the request for a mitigation specialist ("I have never heard of that in a quarter century") and psychiatrist ("I don't believe I have ever appointed a psychiatrist in my life"), noting that "I don't think that the defendant in this case deserves any favors from this Court because he represents himself. He's pulling this Court's leg, and I'm not impressed by that at all." Ultimately, the court agreed to appoint a fingerprint expert and serologist to assist Ramirez during the guilt phase. No psychologist was appointed for the merits trial. The case was transferred to a different judge for trial.

         At trial, only one witness was called on behalf of the defense. Ramirez did not testify and the jury found him guilty of two counts of first-degree murder. State v. Ramirez, 871 P.2d at 239, 242.

         B

         After the jury returned the guilty verdicts, the trial court appointed a psychologist proposed by Ramirez, Dr. McMahon, "to test and evaluate the defendant's current mental health and, if such is deemed appropriate, conduct further diagnostic testing and evaluation." Ramirez v. Ryan, 2016 WL 4920284, at *4. Dr. McMahon met with Ramirez three times for a total of five hours and reviewed the documents trial counsel provided. Trial counsel provided Dr. McMahon with police reports, plea agreements from prior charges, the public defender's notes from an interview with Ramirez, and sentencing orders from two other convictions of burglary and theft. However, trial counsel did not provide Dr. McMahon with Ramirez's school records or IQ scores. Ultimately, trial counsel's case for mitigation consisted of a sentencing memorandum with attachments, and testimony from three of Ramirez's family members and two Arizona Department of Corrections employees who previously supervised Ramirez. Id. at *5-8.

         1

         The sentencing memorandum highlighted Ramirez's ability to adapt in the structured life of prison. Id. at *5-6. The sentencing memorandum also discussed Ramirez's chaotic childhood, school attendance, history of substance abuse and sexual abuse, gang affiliation, and impaired state of mind at the time of the murders. Id. It also discussed Ramirez's life in prison and early involvement with the criminal justice system. Dr. McMahon's report, which was attached to the sentencing memorandum, detailed Ramirez's prior aggravated assault conviction and his work and prison history.

         The sentencing memorandum asserted that Ramirez's ability to appreciate the wrongfulness of his conduct was substantially impaired, a statutory mitigating circumstance. Ramirez reported to Dr. McMahon that he had consumed approximately twelve drinks and shot up with cocaine multiple times on the evening of the murder, which led Dr. McMahon to conclude that Ramirez's ability to appreciate the wrongfulness of his conduct or conform his conduct to the law was significantly diminished due to his psychological condition and drug and alcohol intoxication on the night of the crimes. Id. at *4-5.

         The sentencing memorandum indicated that Ramirez's mother, Maria, was an alcoholic. However, Dr. McMahon's report provided the following contradictory observation: that Maria "never worked, devoting her time as a traditional Mexican-American mother whose responsibility revolves around the home and her children." The report observed that Ramirez's mother "was always there for [Ramirez] when he needed her as he was growing up." Ramirez told Dr. McMahon that several family members had sexually abused him, but explained that he did not tell his mother about it because he "was fearful she would become extremely upset and angry." In completing his report, Dr. McMahon did not interview Ramirez's family members and relied solely on Ramirez's self-reporting and the records trial counsel provided.

         Although the sentencing memorandum noted Ramirez's low IQ scores-70 and 77-trial counsel relied on Dr. McMahon's report to conclude that Ramirez was "now well within the average range of intelligence." Dr. McMahon measured Ramirez's IQ score using the Peabody Picture Vocabulary Test (PPVT), reporting that Ramirez scored 94, which is "in no way indicative of any form of mental retardation." The sentencing memorandum also noted that Ramirez changed schools ten times before seventh grade and did not complete high school.[4]

         2

         During the mitigation hearing, trial counsel subpoenaed three of Ramirez's family members to testify on his behalf: his aunt and two younger sisters. Ramirez's aunt, Erlinda Martinez, who was approximately the same age as Ramirez, testified that Maria was about sixteen when she gave birth to Ramirez. Ramirez's biological father was not around. Erlinda testified that she heard Maria drank while she was pregnant. Erlinda stated that Maria would stay out partying all night and would disappear for days. Maria was involved with "a lot of men." She also testified that Maria would make Ramirez cook for his siblings and clean the house because Maria "wasn't home watching over the kids, the way a mother should." Ramirez's grandmother raised Ramirez for a couple of years. Erlinda also stated that Ramirez had behavioral problems as a child.

         Mary Castillo, Ramirez's younger sister, testified that Ramirez was very affectionate, and helped to keep his siblings clothed and fed, but that Maria "was there for us too."[5] Mary testified that Maria did not have a drinking problem until later in life. She could not recall where Ramirez went to school or whether he changed schools frequently.

         Cynthia Orozco, another of Ramirez's younger sisters, testified that Ramirez was a good brother who supported his wife and son. Ramirez was older than Cynthia, and Cynthia testified that they were "hardly together" when they were younger. She testified she did not have many memories before she was nine years old (when Ramirez would have been about fifteen years old). In the year before the crime, Ramirez lived with her, helped her out with chores, and gave her money every week.

         Two Department of Corrections employees who had supervised Ramirez in the prison kitchen testified about Ramirez's job duties in prison and said that Ramirez was a good worker.

         3

         The sentencing judge found three aggravating circumstances: Ramirez had two prior violent felony convictions; the murders were committed in an especially cruel, heinous, or depraved manner; and he committed multiple murders at the same time. State v. Ramirez, 871 P.2d at 242.

         The judge found the following statutory mitigating circumstance, that Ramirez's "capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was significantly impaired." Id. The judge also found the following non-statutory mitigating circumstances:

(1) his unstable family background,
(2) his poor educational experience,
(3) that he was a victim of sexual abuse while he was young,
(4) his gang affiliation,
(5) his chronic substance abuse,
(6) his psychological history, and, (7)his love of family.

Id.

         The judge sentenced Ramirez to death on both counts. Id. at 239. On direct appeal, the Arizona Supreme Court affirmed Ramirez's convictions and sentence. Id. at 239. The Arizona Supreme Court independently reviewed Ramirez's death sentence, affirming the trial court's assessment of aggravating and mitigating circumstances and imposition of the death ...


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