Lopez v. Stewart ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE LOPEZ,  No. 06-99000
Petitioner-Appellant,
D.C. No.
v.
DORA B. SCHRIRO,* Arizona  CV-97-00224-CKJ
District of Arizona,
Department of Corrections Tucson
Director; MEGAN SAVAGE, Warden,
OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
March 6, 2007—Tucson, Arizona
Filed June 20, 2007
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hawkins;
Partial Concurrence and Partial Dissent by Judge Thomas
*Dora B. Schriro is substituted for her predecessor, Terry L. Stewart,
as Arizona Department of Corrections Director, pursuant to Fed. R. App.
P. 43(c)(2).
7319
LOPEZ v. SCHRIRO 7323
COUNSEL
Cary Sandman, Waterfall, Economidis, Caldwell, Hanshaw &
Villamana, P.C., Tucson, Arizona, for the petitioner-
appellant.
Robert J. Gorman, Arizona State Attorney General’s Office,
Tucson, Arizona, for the respondents-appellees.
OPINION
HAWKINS, Circuit Judge:
Appellant George Lopez (“Lopez”) was convicted in Ari-
zona state court of child abuse and felony murder of his one-
year-old son and sentenced to death. In this post-
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) habeas proceeding, he presents one certified
issue: whether the state trial court denied Lopez his rights
7324 LOPEZ v. SCHRIRO
under the Eighth Amendment by failing to consider mitigation
evidence presented at trial. He also seeks to expand the certif-
icate of appealability (“COA”) to include four additional
issues, including the Arizona Supreme Court’s review of his
death sentence and three ineffective assistance of counsel
claims. We affirm in part, reverse in part, and remand for fur-
ther proceedings.
FACTS AND PROCEDURAL HISTORY
The relevant facts pertaining to the death of Lopez’s son,
Anthony, are set forth in the Arizona Supreme Court’s opin-
ion on direct review:
Lopez met a woman in 1987 while he was coaching
a coeducational softball team. He soon began having
an affair with her and she became pregnant with his
child in December 1987. Five months before the
child was born, Lopez left his wife and moved in
with the mother and her three-year-old son. The
baby, named Anthony, was born in August 1988.
One year and nine days later, August 26, 1989,
Anthony’s mother left the apartment at 10:00 a.m. to
go shopping. She took her older child with her and
left Anthony in Lopez’ care. When she returned
around noon, Lopez told her an accident had hap-
pened. He explained that while he was disposing of
a soiled diaper in another room, Anthony had gotten
off the bed and pulled a nightstand over on himself.
Anthony’s mother saw that he had a bruise on his
forehead and another under his chin. She wanted to
take Anthony to the hospital, but Lopez refused, say-
ing Anthony would be all right.
She held Anthony for a while and then laid him
down. He soon wanted to be held again and she
noticed that he was hot. She bathed him with alcohol
LOPEZ v. SCHRIRO 7325
and held him again. She again told Lopez that they
should take the child to the hospital, but Lopez again
refused.
Anthony’s mother had to do some laundry, so Lopez
carried the laundry to the laundry room. When he
returned, she left Anthony with him and went to put
the laundry in the washing machines. When she
returned to the apartment, she found Lopez perform-
ing cardiopulmonary resuscitation (CPR) on
Anthony. They then took Anthony to the emergency
room at University Medical Center (UMC). Emer-
gency room personnel unsuccessfully attempted to
resuscitate Anthony; he was declared dead at 3:36
p.m.
The police were summoned to the hospital and Offi-
cer Mardula spoke with the emergency room physi-
cian, examined the injuries to Anthony’s body and
then asked Lopez if he would speak with her and he
agreed. Lopez had tears in his eyes, but appeared
calm and rational. Officer Mardula read Lopez his
Miranda rights and then asked him what had hap-
pened to Anthony. Lopez related the same facts that
he had previously related to Anthony’s mother. He
stated that he examined the baby and determined he
was “okay,” but closely watched him. He stated that
later when he was helping the mother with the laun-
dry, he noticed that Anthony was not breathing. He
performed CPR on the baby and then he and the
mother took Anthony to the hospital. He became
upset at this point, so Officer Mardula ended the
interview.
Shortly after 5:00 that evening, Detectives Miller
and Salgado approached Lopez at the hospital and
asked him to accompany them to a room, adjacent to
the emergency room, provided by the hospital for
7326 LOPEZ v. SCHRIRO
paramedics and police officers to do paper work.
Lopez appeared calm. Detective Miller explained to
Lopez that they wanted to tape record their interview
and then asked him how Anthony was injured.
Lopez stated that he and Anthony’s mother were
home, heard a crash in the bedroom and when they
went to investigate, found Anthony lying face down
under the tipped-over nightstand. However, later in
the interview, Lopez changed his story. He admitted
that the mother was not at home. He stated that he
had left Anthony on the bed while he disposed of a
diaper. When he returned, he saw Anthony with one
foot in the middle drawer of the nightstand reaching
for a piggybank. He yelled at Anthony, startling him.
Anthony then jerked back and tipped the nightstand
over on himself. He landed under the nightstand,
face up.
Detective Salgado told Lopez he did not believe him
and said the truth had to come out. Lopez denied any
wrongdoing, and Detective Salgado said, “George,
you’re playing games with us now, George.” Lopez
finally admitted that he hit Anthony on the buttocks.
Detective Salgado then read Lopez his Miranda
rights. Lopez indicated that he understood his rights
and would continue to answer questions. He never
requested an attorney nor did he refuse to answer
any of the detectives’ questions, which he appeared
to understand. The detectives concluded the inter-
view and left the room at approximately 7:00 p.m.
While Lopez was being interviewed by Detectives
Miller and Salgado, Detective Millstone, a member
of the homicide detail, arrived at the hospital. Detec-
tive Millstone interviewed Lopez and pointedly
asked him if he had ever struck Anthony in anger.
Lopez denied striking the child. Detective Millstone
thought that the tape recorder was affecting Lopez’
LOPEZ v. SCHRIRO 7327
candor, so he turned it off and asked Lopez what
concerns he had about answering questions. Lopez
told the detective he was afraid Anthony’s mother
might hear the tape. The detective told Lopez that he
was not going to play the tape for her nor relate the
details of the interview to her.
Detective Millstone then turned on the tape recorder
and Lopez began to tell his version of how Anthony
received his injuries. He stated: “I got angry, I got
angry at everything, everything that has been boiling
over. I’ve been very angry these past couple of days
and [the mother] knows that and everybody knew
it.” Lopez stated that earlier that day, he had given
Anthony a bath and laid him down to put lotion on
him and “he peed, so I smacked him.” Then Lopez
stated: “And I smacked him hard and he started cry-
ing and I got angry, so I got the diaper and went and
threw it away and that’s when I saw him.” At this
time, Lopez recounted yet another version of the
cause of Anthony’s injuries. This time, after
Anthony climbed on the nightstand and Lopez yelled
at him, Anthony grabbed the lamp as he fell beneath
the nightstand. Lopez jumped toward the nightstand
to prevent it from falling on Anthony, but instead he
fell on top of the nightstand. Then the radio, which
had been on the nightstand, fell and hit Anthony in
the face. Detective Millstone concluded the inter-
view at 7:22 p.m.
Detective Millstone then spoke with the treating
physician and the medical examiner who told him
that the injuries Anthony suffered were not consis-
tent with Lopez’ stories. A telephonic search warrant
was obtained for Lopez’ apartment. Lopez went with
the police officers to the apartment and demonstrated
how Anthony was injured. After the demonstration,
Lopez was arrested.
7328 LOPEZ v. SCHRIRO
The next day, an autopsy was performed on
Anthony. The doctor found numerous bruises on
Anthony’s face, chest, back and buttocks. Some
bruises had occurred within 24 hours, but many were
older. Anthony’s skull was fractured in two places,
one of which had been caused with such force that
part of the fractured skull had been driven into the
brain. Anthony also had an extensive hemorrhage in
the membrane separating the brain from the skull.
The internal examination revealed that Anthony’s
10th and 11th ribs were fractured near his spine.
These injuries corresponded to the bruises on Antho-
ny’s back. These fractures had been caused within
24 hours of death. The doctor also found that Antho-
ny’s 7th, 8th and 10th ribs had been broken in the
past and were healing when Anthony died. Antho-
ny’s pancreas was torn in two, his bowel and the
membrane holding it in place were lacerated, and his
spleen and adrenal gland had bled. The abdominal
injuries had caused peritonitis. All of these injuries
had been caused within 24 hours of death. The doc-
tor determined that Anthony had died of blunt-force
trauma to the head, chest and abdomen.
State v. Lopez, 847 P.2d 1078, 1081-83 (Ariz. 1992).
Lopez was indicted on one count of first-degree murder and
one count of child abuse, and a jury convicted him on both
counts. At an aggravation/mitigation hearing conducted prior
to sentencing, Lopez put on numerous friends and family
members as witnesses, who testified that Lopez was a non-
violent person who liked to help people and that he had never
acted inappropriately toward their children or his own. Vari-
ous community members testified concerning Lopez’s service
in community organizations and the military, and about his
positive employment history. A prison chaplain testified that
Lopez was a cooperative and well-behaved inmate who regu-
LOPEZ v. SCHRIRO 7329
larly attended Bible study classes and helped other inmates,
and could carry out his mission of helping others if given a
life sentence. Another prison official testified that Lopez was
cooperative and had no disciplinary reports.
The prosecution presented testimony from an expert wit-
ness, Dr. Hobeich, a pediatrician with expertise in child
abuse. Dr. Hobeich testified about the pain Anthony likely
experienced from his injuries, which he compared to “surgery
without anaesthesia.” He also described symptoms of a child
with Anthony’s injuries, including being “hot to the touch”
and “lethargic” and lacking the power or energy for a full cry,
making more of a “cat cry” instead to communicate pain
before eventually losing consciousness. Dr. Hobeich testified
that Anthony was probably conscious and in pain for at least
an hour, and that there was at least a possibility he could have
survived his injuries if he had received treatment for them
sooner. In closing arguments to the court, defense counsel
relied on the mitigating evidence presented at the aggravation/
mitigation hearing, but also made a substantial argument that
the record did not demonstrate that Lopez ever intended to kill
his son. The trial court found the state had proved two aggra-
vating factors: that the defendant committed the offense in an
especially heinous, cruel and depraved manner, and that the
defendant was an adult and the victim was under the age of
fifteen. The court found no statutory mitigating circumstances
and indicated it had considered “all evidence presented by the
defendant by way of mitigation.”
The court concluded:
The victim, a child of 12 months and 9 days of age,
was at the mercy of the defendant with no ability to
protect or defend himself. His suffering was apparent
or foreseeable, but defendant’s selfish concern to
shield himself from the consequences of his own
actions caused him to deny the child any hope for
life or the surcease of his pain through medical treat-
7330 LOPEZ v. SCHRIRO
ment. The Court finds that the cruelty and depravity
of defendant’s acts towards the innocent, helpless
baby in his care far outweigh any evidence which
might call for leniency.
The court then imposed the death penalty.
On direct appeal, a majority of the Arizona Supreme Court
affirmed the conviction and sentence. Lopez, 847 P.2d at
1092. The majority indicated it was undertaking an indepen-
dent review of the record to determine whether the death sen-
tence was appropriate, and concluded that the evidence
supported the finding on the two aggravating factors, and that
the trial court could properly find that the record refuted the
proffered mitigation evidence. Id. at 1090-92. Two justices
dissented from the imposition of the death sentence, faulting
the trial court for failure to comply with an Arizona statute
requiring specific findings regarding mitigating circum-
stances. Id. at 1092-93 (citing Ariz. Rev. Stat. § 13-703 (D)).
Lopez then sought state collateral relief, raising, among
other things, a number of claims regarding ineffective assis-
tance of trial and appellate counsel. Following an evidentiary
hearing, the superior court denied Lopez’s petition in its
entirety. Lopez then filed a petition for review with the Ari-
zona Supreme Court, again raising a number of ineffective
assistance of counsel claims, including allegations that his
counsel had “abandoned” him at the sentencing stage. The
Arizona Supreme Court issued a postcard denial of this peti-
tion. Lopez’s petition for writ of certiorari to the United States
Supreme Court was also denied.
Lopez then initiated this habeas action in federal district
court. The district court found several claims to be unex-
hausted and dismissed those claims. Lopez subsequently
returned to the state superior court, which denied some claims
on procedural grounds and others on their merits. Petitions to
the Arizona Supreme Court and United States Supreme Court
LOPEZ v. SCHRIRO 7331
were also denied. Lopez then returned to the district court and
moved to amend his petition to add these now-exhausted
claims, but the district court denied the motion, holding that
amendment would be futile and would cause undue delay and
prejudice to the government. The district court denied relief
on the remaining claims on their merits. The district court
then sua sponte issued a COA on the issue of whether
Lopez’s constitutional rights were violated by the sentencing
court’s failure to consider and give effect to mitigation evi-
dence presented at trial.1
STANDARD OF REVIEW
The district court’s denial of habeas relief is reviewed de
novo. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.
2005), cert. denied sub nom., Barker v. Spalding, 126 S. Ct.
2041 (2006).
Lopez’s appeal is governed by AEDPA. Under AEDPA,
this court may not grant a writ of habeas corpus on behalf of
a person in state custody unless the state’s adjudication of his
claim “(1) 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; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
In assessing whether a state court’s application of law or
determination of fact is “unreasonable,” the court cannot sim-
ply consider whether it would have reached a different out-
1
The court also issued a COA as to whether Lopez’s claim that his
rights were violated when the sentencing court improperly limited the
scope of mitigation evidence was procedurally barred. However, Lopez
concedes that this second issue is either moot or immaterial since the dis-
trict court reached the claim on its merits.
7332 LOPEZ v. SCHRIRO
come on the same record. Rice v. Collins, 126 S. Ct. 969, 976
(2006) (stating that “[r]easonable minds reviewing the record
might disagree about” the ultimate issue is insufficient for
habeas relief). Rather, “[t]he ‘unreasonable application’
clause requires the state court decision to be more than incor-
rect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (citing Williams v. Taylor, 529 U.S. 362, 410, 412
(2000)). It requires the decision to be “objectively unreason-
able.” Id. (citing Williams, 529 U.S. at 410).
DISCUSSION
I. The Sentencing Court’s Alleged Failure to Consider
and Give Effect to Mitigating Evidence Presented at
Trial
[1] Lopez’s one certified claim alleges that the state sen-
tencing court failed to consider and give effect to all the miti-
gating evidence he presented. Lopez relies principally on
Eddings v. Oklahoma, 455 U.S. 104 (1982), which held that
a sentencing court could not refuse to consider a petitioner’s
unhappy upbringing and emotional disturbance as mitigating
evidence.
[2] Here, however, the sentencing court did not prevent
Lopez from presenting any evidence in mitigation, nor did it
affirmatively indicate that there was any evidence it would
not consider. Indeed, the sentencing court expressly stated
that it “ha[d] considered all evidence presented by the defen-
dant by way of mitigation.” Lopez acknowledges this state-
ment, and also admits that a court is usually deemed to have
considered all mitigating evidence where the court so states.
See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir. 1992); Par-
ker v. Dugger, 498 U.S. 308, 314 (1991) (“We must assume
that the trial judge considered all this evidence before passing
sentence. For one thing, he said he did.”).
Lopez argues that the court’s statement is insufficient in
this case because the judge made contradictory statements
LOPEZ v. SCHRIRO 7333
earlier during the aggravation/mitigation hearing which sug-
gested she was excluding a “whole category of mitigation
evidence”— evidence which was offered at trial but not re-
introduced at the sentencing hearing. The genesis of Lopez’s
argument is the court’s statement early in the proceedings that
“[a]s to [the murder count] the Court is considering only those
factors presented at the aggravation/mitigation hearing.”
However, when the statement is placed in context, it does not
carry the meaning Lopez would assign to it.
[3] At the beginning of the sentencing hearing, the court
ruled on various motions by Lopez to exclude statements by
himself and the victim’s family which appeared in the presen-
tence report. The court granted Lopez’s motion to strike these
statements, “consistent with the Court’s decision to rely upon
evidence received in trial and the presentence hearing.”
(emphasis added). Shortly thereafter, the court stated:
For the record, the Court has read the presentence
report, the letters and other documents submitted by
the defendant in the time period since the verdict
was entered — largely since the presentence was
prepared and filed, as well as this Court’s having
heard the trial and the aggravation/mitigation hear-
ing on May the 10th, 1990.
(emphasis added). Having referenced the presentence report,
the Court then went on to clarify, consistent with its earlier
ruling:
As to [the murder count], the Court is considering
only those factors presented at the aggravation/
mitigation hearing.
As to [the child abuse count], the Court is consid-
ering the information set forth in the presentence
report.
7334 LOPEZ v. SCHRIRO
The Court does not rely upon any information set
forth in the defendant’s or the victim’s statements in
the presentence report.
When the court’s statement is put in this context, it is apparent
that the judge was not announcing she was confining her con-
sideration to only evidence that was introduced at the
aggravation/mitigation hearing, but rather attempting to
restate her ruling that she would not consider the statements
in the presentence report.
Lopez argues that the statement is at least ambiguous and
that we should not speculate as to whether all the mitigating
factors were actually considered. As discussed above, how-
ever, the sentencing court’s statement is susceptible of
Lopez’s interpretation only if read in isolation, and is cer-
tainly not enough to overcome the presumption that the state
court knew and followed the law. See Woodford v. Visciotti,
537 U.S. 19, 24 (2002). Under AEDPA, we must do more
than find the statement ambiguous—we would have to con-
clude that the Arizona Supreme Court was objectively unrea-
sonable in concluding the sentencing court did, in fact, review
all the proffered mitigating evidence. See Lockyer, 538 U.S.
at 75. Relying on the sentencing court’s express statements
that it had read the presentence reports, heard the trial and the
aggravation/mitigation hearing, and considered all evidence
presented by Lopez, the Arizona Supreme Court concluded
that “[t]he record before us clearly indicates that the trial
judge considered all the mitigating factors presented by
Lopez.” Lopez, 847 P.2d at 1091. This is not an unreasonable
determination of the facts in light of the record before it. See
Parker, 498 U.S. at 314-15 (assuming trial judge considered
all mitigating evidence before passing sentence because he
said he did and state law required him to).2
2
This court reviews the Arizona Supreme Court’s decision because it is
the last reasoned decision on this issue. Barker, 423 F.3d at 1091-92. The
determination of what the trial judge found is an issue of historical fact.
Parker, 498 U.S. at 320.
LOPEZ v. SCHRIRO 7335
Moreover, the sentencing judge clearly made findings that
were based on trial evidence, thus negating the argument that
the court only considered evidence from the aggravation/
mitigation proceeding. For example, the court found that
Lopez “willfully and intentionally” abused the child, that the
baby was entrusted to Lopez’s care, and that Lopez denied the
child medical treatment to protect himself, although the actual
circumstances of the crime and aftermath were not discussed
by witnesses at the penalty phase hearing. In fact, it appears
that at one point Lopez similarly viewed the record, as in one
of his state post-conviction petitions, he asserted: “At sentenc-
ing, this court imposed the death penalty; it appears this court
reached its decision to impose death in part from testimony at
the guilt phase of the trial.” (emphasis added).
Lopez contends that the trial court must have failed to con-
sider the trial record because it did not find the lack of intent
to kill as a mitigating factor. Of course, the trial court did not
specifically discuss any of the mitigating evidence that Lopez
presented, so a failure to discuss this factor does not necessar-
ily indicate it was not considered. In addition, on the date the
court pronounced sentence, Lopez’s counsel made an argu-
ment before the court that was primarily based on the lack of
intent to kill.3
[4] In light of the foregoing, we agree with the district court
that the Arizona Supreme Court was not objectively unreason-
able in determining that the sentencing court had considered
3
The sentencing court found that Lopez had “willfully and intentionally
physically abused the child entrusted to his care and caused his death.”
Lopez argues that this statement simply underscores that the court did not
find an “intent to kill,” just intent to abuse, but the state argues that the
“willfully and intentionally” language also modifies “caused his death.”
Because either interpretation is plausible, the statement is at best ambigu-
ous, and does not cut strongly one way or the other.
7336 LOPEZ v. SCHRIRO
all of Lopez’s proffered mitigating evidence, including the
evidence presented at trial.4
II. Meaningful Appellate Review
[5] After the district court sua sponte issued the COA as to
Issue I, Lopez asked this court to expand the COA. A motions
panel denied this request, but indicated Lopez could re-raise
these issues in his opening brief, which he has done. We con-
strue this additional briefing as a further motion to expand the
COA. See Circuit Rule 22-1(e). To receive a COA, Lopez
must demonstrate that “reasonable jurists would find the dis-
trict court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
[6] Lopez argues that the Arizona Supreme Court failed to
provide meaningful independent review of his sentence. This
issue is not, as Lopez argues, somehow encompassed by the
certified issue discussed above. To the contrary, the district
court expressly limited its COA to alleged errors committed
by “the sentencing court[ ].” Rather, Lopez raises an entirely
independent constitutional claim5 regarding the Arizona
Supreme Court’s review process, alleging that the Court mis-
takenly determined that the trial court found “no mitigation,”
when the trial court in fact weighed the mitigating factors
against the aggravators. This claim is not only unexhausted,
4
Because we agree with this conclusion, we need not address the district
court’s alternate holding that even if the trial court had erred and failed to
consider all the mitigating evidence presented at trial and sentencing, any
such error was cured by the Arizona Supreme Court’s independent review
of the record.
5
The Eighth and Fourteenth Amendments prohibit the government from
imposing the death penalty in an arbitrary or irrational fashion, and the
Supreme Court has held that “meaningful appellate review” is necessary
to ensure that the death penalty is not imposed in such a manner. Pulley
v. Harris, 465 U.S. 37, 45 (1984) (citing Gregg v. Georgia, 428 U.S. 153,
198, 204-06 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.));
Parker, 498 U.S. at 321.
LOPEZ v. SCHRIRO 7337
it is actually raised for the first time on this appeal.6 We there-
fore deny a COA on this issue.
[7] Lopez also attempts to sweep this claim within one he
did raise below in the district court: that the state trial court
made constitutionally inadequate findings. Lopez argued
below that the trial court’s failure to list the factors it consid-
ered and its conclusions surrounding them violated due pro-
cess and made it impossible for the Arizona Supreme Court
to perform its independent duty of review. However, Lopez
does not point to any “clearly established” Supreme Court
precedent setting forth the record the sentencing court must
make in order to permit sufficient appellate review. See 28
U.S.C. § 2254 (d)(1). The district court thus denied Lopez’s
claim, noting that there was no clearly established Supreme
Court law or constitutional requirement “that a particular sen-
tencing record be produced by the trial court.” We agree, and
have expressly held that “[w]hile it is important that the
record on appeal disclose to the reviewing court the consider-
ations which motivated the death sentence . . . due process
does not require that the sentencer exhaustively document its
analysis of each mitigating factor as long as a reviewing fed-
eral court can discern from the record that the state court did
indeed consider all mitigating evidence offered by the defen-
dant.” Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994) (en
banc) (citing Gardner v. Florida, 430 U.S. 349, 361 (1977)
(plurality opinion)); see also Williams v. Stewart, 441 F.3d
1030, 1057 (9th Cir. 2006) (“[T]he trial court is not required
to ‘itemize and discuss every piece of evidence offered in mit-
igation’ . . . [so long as it makes] clear to the reviewing court
that the sentencing court considered all relevant mitigating
evidence that was offered.”); Clark, 958 F.2d at 858 n.5 (not-
6
The only error in the Arizona Supreme Court’s review that Lopez
alleged in his federal habeas petition was the Court’s failure to conduct
proportionality review of his death sentence. In addition, in Lopez’s state
and federal filings, he consistently asserted—contrary to his assertion now
—that the trial court had made an (erroneous) finding of “no mitigation.”
7338 LOPEZ v. SCHRIRO
ing that after Parker, it is clear the “due process clause does
not require the sentencing court to conduct an on-record dis-
cussion of each mitigating factor”). Because the district
court’s determination on the merits of this claim is not debat-
able among jurists of reason, we deny the COA on this uncer-
tified claim.
III. Exhaustion of Ineffective Assistance of Counsel
Claim Regarding Failure to Investigate and Present
Reasonably Available Mitigating Evidence
In his federal habeas petition, Lopez asserts that his counsel
rendered ineffective assistance by failing to investigate and
present all relevant mitigating evidence at sentencing, includ-
ing evidence of organic brain damage, dysfunctional child-
hood, childhood sexual assault, a good employment record
and remorse. The district court did not reach the merits of this
claim, however, because it found this issue had not been
exhausted to the Arizona Supreme Court.
Because the district court dismissed Lopez’s claim on a
procedural ground, we apply Slack to both the procedural
ground and the underlying constitutional claim to determine
if they are debatable among jurists of reason. Valerio v. Craw-
ford, 306 F.3d 742, 774 (9th Cir. 2002). With respect to the
substantive prong, however, we take only a “quick look” to
determine whether the petition facially alleges the denial of a
constitutional right. Id. at 775 (internal quotation marks omit-
ted).
[8] In order to fulfill exhaustion requirements, a petitioner
must present to the state courts the “substantial equivalent” of
the claim presented in federal court. Picard v. Connor, 404
U.S. 270, 278 (1971). “[S]tate courts have been given a suffi-
cient opportunity to hear an issue when the petitioner has
presented the state court with the issue’s factual and legal
basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.
1999). However, a petitioner may provide further facts to sup-
LOPEZ v. SCHRIRO 7339
port a claim in federal district court, so long as those facts do
not “fundamentally alter the legal claim already considered by
the state courts.” Vasquez v. Hillery, 474 U.S. 254, 260
(1986).
Lopez did seek post-conviction relief in Arizona Superior
Court pursuant to Arizona Rule of Criminal Procedure 32. He
alleged, among other things, that he had received ineffective
assistance of counsel in violation of Strickland v. Washington,
466 U.S. 668 (1984). Although the state correctly notes that
Lopez’s initial bifurcated petition did not specifically chal-
lenge counsel’s lack of preparation for the penalty phase, the
issue was eventually briefed in memoranda to the state trial
court, and that court did issue a ruling on the merits.
The state court also permitted an evidentiary hearing on
Lopez’s claim. At the evidentiary hearing, Lopez presented
evidence about his trial counsel’s failure to investigate and
present mitigation for the capital sentencing, as well as expert
testimony about an allegedly competent defense attorney’s
duties of investigation and presentation of mitigating evi-
dence. An expert testified that competent defense counsel had
a duty to investigate Lopez’s background and social history,
and as a result of counsel’s failure to do so, the sentencing
judge did not discover that Lopez grew up in a dysfunctional
household with alcoholic parents and also began drinking at
an early age. The expert also testified that trial defense coun-
sel failed to provide the examining psychologist with any evi-
dence of family, medical or social history.
The state court rejected this claim on the merits, concluding
that evidence of Lopez’s alcohol abuse was not sufficiently
substantial to call for leniency. Lopez then appealed the denial
to the Arizona Supreme Court. In his statement of issues,
Lopez indicated he was prejudiced by his trial counsel’s
“abandonment [of] his client at the trial and/or sentencing.”
He identified Strickland as the governing federal constitu-
7340 LOPEZ v. SCHRIRO
tional standard. His petition for review elaborated on the
claim as follows:
Mr. Bruner [trial counsel] for all appearances turned
over the mitigation preparation to Ms. Marshall, his
junior counsel, who had previously done no serious
trials including murder and/or death penalty trials.
Mr. Bruner gave no direction to Dr. Morris [evaluat-
ing psychiatrist] as to the evaluation, other than Mr.
Bruner wanted to know about “overall personality
dynamics, and things of this nature. Wasn’t asking
for anything specific to help the case, but was inter-
ested in learning more about the psychological
makeup of Mr. Lopez.” Most importantly, Dr. Mor-
ris was not asked to evaluate or render an opinion as
to the statements given by Mr. Lopez to law enforce-
ment. Mr. Bruner believed that the death penalty
would not be imposed in this case and prepared
accordingly.
The Arizona Supreme Court denied Lopez’s petition.
[9] We conclude that the district court erred by determining
that Lopez’s ineffective assistance of counsel claim for failure
to investigate and present mitigating evidence was unex-
hausted. Lopez did at least make the general allegations of his
counsel’s lack of penalty phase preparation to the Arizona
Supreme Court (including improper delegation to an inexperi-
enced subordinate and failure to prepare mental health
experts), and the state court record contains some evidence of
a dysfunctional childhood and alcoholism.7 A “quick look” at
7
We recognize that Lopez’s habeas counsel conceded to the federal dis-
trict court that some sub-parts of this claim were not exhausted by post-
conviction counsel. However, this court can independently review the
state court record to determine whether the issue has actually been
exhausted. See Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (per
curiam).
LOPEZ v. SCHRIRO 7341
the merits of his federal claim also reveals that Lopez has suf-
ficiently alleged the deprivation of a constitutional right.
Valerio, 306 F.3d at 775. We therefore grant the COA on
Lopez’s penalty phase ineffective assistance claim for failure
to investigate and present mitigating evidence and remand to
the district court for further proceedings.8
IV. Procedural Bar Regarding Defense Counsel’s
Failure to Rebut Testimony by Dr. Hobeich
In his federal petition, Lopez claims that his trial counsel
was also ineffective for failing to rebut the testimony of the
state’s aggravation witness, Dr. Hobeich, who presented testi-
mony about the pain Lopez’s son likely suffered before death.
The district court first found this claim to be unexhausted, and
then, procedurally barred on an adequate and independent
state law ground. As with the previous claim, we analyze
whether to grant a COA by applying the Slack standard to the
district court’s procedural ruling and to the underlying consti-
tutional claim. Valerio, 306 F.3d at 774.
In December 2000, Arizona amended its Rule 32 state post-
conviction procedures, adding a new avenue of relief from a
death sentence if “[t]he defendant demonstrates by clear and
convincing evidence that the facts underlying the claim would
be sufficient to establish . . . that the court would not have
imposed the death penalty.” Ariz. R. Crim. P. 32.1(h). After
the district court dismissed Lopez’s claim as unexhausted, in
8
We note that Lopez apparently wishes to supplement the record in fed-
eral court with additional evidence of prejudice — information that could
have been presented in the penalty phase mitigation proceeding, but was
not presented due to defense counsel’s allegedly deficient performance —
that was not presented to the state courts. On remand, the district court
will therefore need to determine whether Lopez, who received an evidenti-
ary hearing in state court, is entitled to supplement the record or receive
an additional evidentiary hearing in federal court. See 28 U.S.C.
§ 2254(e)(2); 28 U.S.C. foll. § 2254, R.7 (setting forth the rule for expand-
ing the record on federal habeas review).
7342 LOPEZ v. SCHRIRO
1999 Lopez returned to state court, seeking relief under this
provision by arguing that his counsel’s deficient performance
deprived the state court of evidence that would have changed
his sentence. The state trial court, however, held the claim
precluded under Rule 32.2(a)(3),9 concluding the claim could
have been presented in Lopez’s first post-conviction proceed-
ing. See Ariz. R. Crim. P. 32.2(a)(3) (providing for dismissal
of a claim that “has been waived at trial, on appeal, or in any
previous collateral proceeding.”). Lopez sought review with
the Arizona Supreme Court, but it refused to consider the
claim.
Lopez then returned to the district court and sought to
amend his habeas petition to add this claim. The district court
rejected the proposed amendment, citing the state court’s pro-
cedural default of the claim. Lopez, however, argues that the
state court’s reliance on Rule 32.2(a)(3) was in error, because
he had brought his claim under Rule 32.1(h), and Rule 32.2(b)
prohibits the state court from applying Rule 32.2(a)(3) to
32.1(h) claims. Rule 32.2(b) provides:
Rule 32.2(a) [preclusion from relief] shall not apply
to claims for relief based on Rules 32.1(d), (e), (f),
(g) and (h). When a claim under [these rules] is to be
raised in a successive or untimely post-conviction
relief proceeding, the notice of post-conviction relief
must set forth the substance of the specific exception
and the reasons for not raising the claim in the previ-
ous petition or in a timely manner. If the specific
exception and meritorious reasons do not appear
substantiating the claim and indicating why the
claim was not stated in the previous petition or in a
timely manner, the notice shall be summarily dis-
missed.
9
The state court actually cited “32.1(a)(3),” which does not exist; the
citation is apparently a typographical error, as Lopez acknowledges.
LOPEZ v. SCHRIRO 7343
The district court reasoned that, although the state court did
not cite Rule 32.2(b) or 32.1(h) in its ruling, the court’s dis-
missal of the claim under Rule 32.2(a)(3) meant it “must have
necessarily concluded that the claim failed to constitute an
exception to Rule 32.2(a) preclusion as set forth in Rule
32.2(b).”10 In other words, in the district court’s view, the
state court had interpreted Rule 32 to require dismissal under
32.2(a) if the showing required under 32.2(b) was not satis-
fied.
[10] The district court’s interpretation is entirely plausible.
Although the first sentence of Rule 32.2(b) states that “Rule
32.2(a) shall not apply” to claims for relief based on certain
subsections, including 32.1(h), the rule goes on to state vari-
ous requirements and concludes that, “[i]f the specific excep-
tion and meritorious reasons do not appear substantiating the
claim and indicating why the claim was not stated in the pre-
vious petition or in a timely manner,” the claim is to be dis-
missed. As the district court noted, state courts are presumed
to know and correctly apply state law. See Walton v. Arizona,
497 U.S. 639, 653 (1990), overruled on other grounds by
Ring v. Arizona, 536 U.S. 584 (2002); Beaty v. Stewart, 303
F.3d 975, 986 (9th Cir. 2002). Moreover, Lopez specifically
argued to the Arizona Supreme Court that the trial court had
erred in finding the claim precluded, and the Court did not
reverse the ruling.
[11] We grant the COA because the district court’s proce-
dural determination is debatable among reasonable jurists and
Lopez has facially alleged a deprivation of a constitutional
right, but we nonetheless affirm the district court’s ruling.
10
Lopez now argues that the district court erred by relying on a theoreti-
cal but unstated procedural bar; however, this is not quite what the district
court did. Rather, the district court concluded that the state court must
have found the Rule 32.2(b) exception did not apply to save Lopez’s new
petition, and that this was why the state court had dismissed under the
ordinarily applicable Rule 32.2(a).
7344 LOPEZ v. SCHRIRO
This court, when sitting as a habeas court, generally respects
state court determinations of state law. See Powell v. Lambert,
357 F.3d 871, 874 (9th Cir. 2004); see also Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court
cannot reexamine a state court’s interpretation and application
of state law). We have previously recognized an exception to
this deference if the state court’s interpretation is “clearly
untenable and amounts to a subterfuge to avoid federal review
of a deprivation by the state of rights guaranteed by the Con-
stitution.” Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.
1982). As discussed above, there are ways to construe the
state court’s ruling that would not make it “clearly untenable,”
and we are therefore bound by the state court’s interpretation
and application of its own procedural rules.11 The district
court properly declined to permit Lopez to amend his petition
in light of the state court’s ruling.
V. Defense Counsel’s Failure to Object to Evidence of
Prior Injuries
During the guilt phase of Lopez’s trial, the medical exam-
iner, Dr. Henry, testified that Anthony suffered from several
healing injuries, including rib fractures and bruises about his
face and torso. Lopez argues that his counsel should have
moved to exclude this evidence under Arizona Rule of Evi-
dence 404(b), as evidence of other crimes, wrongs, or acts not
admissible to prove the character of a person, and asks this
court to grant a COA on this issue. He argues the evidence
was not admissible under any of the exceptions, such as to
prove absence of mistake or accident, because the state had
not proven by clear and convincing evidence that Lopez
caused the other injuries. See State v. Nordstrom, 25 P.3d 717,
11
Lopez does not otherwise challenge the application of Rule 32.2(a) as
an “independent and adequate” state law ground, see Stewart v. Smith, 536
U.S. 856, 861 (2002), and Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir.
1998), nor does he attempt to demonstrate cause and prejudice for the pro-
cedural default.
LOPEZ v. SCHRIRO 7345
736 (Ariz. 2001). Lopez contends that had this evidence been
excluded, there is a reasonable probability that the jury would
have convicted him of a lesser-included offense—reckless
child abuse—which is a non-capital felony.
This claim was raised in state post-conviction proceedings
and denied on the merits. The state court concluded that
defense counsel’s decision not to object to the admission of
the evidence did not fall below an objective standard of rea-
sonableness, and that even if the evidence was not admissible,
there was no reasonable probability of a different outcome.
The district court concluded that the state court’s ruling was
neither contrary to nor an unreasonable application of clearly
established federal law. We grant the COA because the issue
is debatable among jurists of reason, but we affirm the district
court’s decision.
[12] The first prong of Strickland considers whether
Lopez’s counsel fell below an objective standard of reason-
ableness by failing to object to the evidence of prior injuries
as Rule 404(b) evidence. 466 U.S. at 687-88. Even if we
assume that the state court unreasonably determined that
Lopez’s counsel was not deficient for failing to at least object
to this evidence, to satisfy the second prong of Strickland,
Lopez must also demonstrate a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Id. at 694.
Dr. Henry’s testimony clearly focused on the three major
injuries that ultimately resulted in Anthony’s death — injuries
to his head, chest and abdomen. Occasional references to
older bruises or healing rib fractures were made when
describing the condition of the body at the time of the
autopsy. Dr. Henry also testified that the abdominal injuries
might have occurred more than a day earlier, but that it was
also possible they had been inflicted around the same time as
the head injuries. But the truly damaging portion of Dr.
Henry’s testimony was not descriptions of other minor bruises
7346 LOPEZ v. SCHRIRO
or injuries—it was his consistent testimony that Anthony’s
three serious injuries were not consistent with accidental inju-
ries, were highly unlikely to have been caused by a falling
nightstand as described by Lopez, and were not inflicted by
a single blow, but by separate and very forceful blows to the
head, chest and abdomen.
[13] Perhaps more importantly, the prosecution did not use
any of Dr. Henry’s testimony about prior injuries to argue
Lopez’s state of mind. The only reference to the prior bruises
in the closing argument was to point out that the victim’s
mother was either not particularly observant or not credible.
Instead, the focus of the closing argument mirrored the crux
of Dr. Henry’s testimony: the injuries Anthony suffered were
not accidental, they required a great deal of force, and they
likely required repetitive blows, which, the prosecution
argued, required effort and thought. The prosecution argued
that the severity of Anthony’s injuries simply did not permit
a finding of recklessness—that Lopez had either intentionally
and willfully inflicted these injuries on the child, or that it was
some freak accident, but that there was no in between. The
prosecution also pointed out the inconsistencies in Lopez’s
statements to police, his reluctance to take the child to the
hospital, and that Lopez’s explanation of what happened was
inconsistent with the medical evidence.
[14] Although Lopez argues that the jury could have found
recklessness but for the allegedly improper testimony about
the prior bruises, we agree with the district court that the state
court was not objectively unreasonable in determining that
there was no reasonable probability of a different guilt phase
outcome based on this record. We therefore affirm the district
court’s denial of Lopez’s petition on this claim.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
LOPEZ v. SCHRIRO 7347
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s holdings in Parts II-V of the
majority opinion. That is, I agree that the district court erred
in concluding that Lopez’s ineffective assistance of counsel
claims for failure to investigate and present mitigating evi-
dence were unexhausted, and I agree that Lopez is not entitled
to remand or relief on his claims that the Arizona Supreme
Court denied him meaningful appellate review, that his law-
yer was deficient in failing to challenge Dr. Hobeich’s testi-
mony, or that his lawyer was deficient in failing to object to
evidence of prior injuries.
However, because I conclude that Lopez has successfully
demonstrated an unreasonable application of Eddings v. Okla-
homa, 455 U.S. 104 (1982), based on both the trial judge’s
and the Arizona Supreme Court’s failure to consider his mens
rea as a mitigating factor, I respectfully dissent from Part I of
the majority’s opinion.
I
I share the concern raised by Chief Justice Feldman in his
special concurrence, namely the lack of any trial court find-
ings on mens rea. The lack of such a finding creates a distinct
constitutional problem under Eddings because there is no evi-
dence that the Arizona courts actually considered mens rea as
a mitigating factor.
This case is an outlier in our death penalty jurisprudence
because the record is undisputed—and all parties seem to
concede—that Lopez never intended to kill his son. Through-
out trial, the prosecution emphasized that child abuse felony
murder does not include an intent element. During the sen-
tencing hearing, after Lopez’s counsel stressed Lopez’s lack
of specific intent as a mitigating factor, the prosecution’s only
argument in rebuttal was the following analysis: that Lopez
7348 LOPEZ v. SCHRIRO
knew from experience that children are vulnerable to injury,
that Lopez intended to injure Anthony, and that “we can infer
that [Lopez] intended the damage [the injuries] caused
because of his very familiarity with children.” (emphasis
added). Then, while arguing before the Arizona Supreme
Court on direct appeal, the prosecution “conceded that there
was little or no evidence of intent to kill and that the most
probable explanation for the child’s death was that Defendant
became enraged, lost control, and beat the child quite serious-
ly.” State v. Lopez, 847 P.2d 1078, 1092 (Ariz. 1992) (Feld-
man, C.J., specially concurring). There was also evidence
introduced at trial that Lopez attempted to administer CPR
when Anthony stopped breathing and that Lopez was visibly
upset by Anthony’s death. This behavior is inconsistent with
an intentional homicide.
Although the formation of a specific intent to kill is not a
prerequisite to the imposition of a death penalty, Tison v. Ari-
zona, 481 U.S. 137 (1987), the lack of a specific intent to kill
is relevant to whether the death sentence is appropriate for an
individual defendant. Notably, most child abuse felony mur-
derers do not receive a sentence even approaching death, even
though all such murders are undoubtedly death penalty eligi-
ble.
In short, this case is an unusual one. Lopez received the
harshest sentence that the state is empowered to impose even
though he never intended for his victim to die. This fact does
not exempt him from the death penalty by any means. How-
ever, it does call into question the state courts’ assessment of
mitigation.
II
Under Eddings, a sentencer contemplating the death pen-
alty has a constitutional obligation to consider, “as a mitigat-
ing factor, any aspect of a defendant’s character or record and
any of the circumstances of the offense that the defendant
LOPEZ v. SCHRIRO 7349
proffers as a basis for a sentence less than death.” 455 U.S.
at 110 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
Applying Eddings to this case, both the sentencing judge and
the Arizona Supreme Court had a constitutional duty, before
choosing or affirming a death sentence, to consider all miti-
gating factors that Lopez’s trial counsel proffered.
During Lopez’s sentencing hearing, his trial counsel spent
considerable time arguing that Lopez’s lack of specific intent
militated against the death sentence. There is therefore no
doubt that Eddings required the trial judge and the Arizona
Supreme Court to consider Lopez’s mens rea when deciding
whether to impose and whether to affirm the death penalty.
The only question before us, therefore, is whether or not the
state courts did, in fact, consider Lopez’s argument.
In reviewing the state court record for a potential Eddings
violation, this court must, as the majority correctly notes, pre-
sume that the trial judge and the state Supreme Court actually
considered all of the mitigating arguments that were pre-
sented. This presumption arises, first and foremost, from a
blanket presumption that state judges know and follow the
law. It arises secondarily in this case from the trial judge’s
multiple assurances on record that she was considering all of
Lopez’s proffered evidence and arguments. Parker v. Dugger,
498 U.S. 308, 315 (1991) (“We must assume that the trial
judge considered all this [mitigation] evidence before passing
sentence. For one thing, he said he did.”). Under Parker, we
must presume that the trial judge was neither disingenuous
nor mistaken when she stated that she considered all mitigat-
ing arguments.
The Parker presumption, however, is neither conclusive
nor irrebuttable. In Parker itself, the Supreme Court did not
rely on the trial judge’s assurance that he had considered all
mitigating evidence. Rather, the Court examined the entire
record, reconstructing the trial judge’s decision-making pro-
cess to determine whether or not that process included consid-
7350 LOPEZ v. SCHRIRO
eration of non-statutory mitigating factors. The Court then
rejected the Eddings claim, not because the trial judge had
made a bare statement that he had considered mitigating evi-
dence, but because the trial judge’s final decision was inexpli-
cable without reference to that evidence. Specifically, the
Supreme Court pointed out that the trial judge had overridden
the jury’s recommended life sentence for only one of the two
murders involved in the case. Although Parker had committed
a dual homicide, he received the death sentence for one mur-
der and a life sentence for the other. Because the aggravating
circumstances applied to both homicides, the Supreme Court
reasoned that the only explanation for the differential sentenc-
ing was that the trial judge had considered non-statutory miti-
gating circumstances and had determined that those
circumstances justified leniency with respect to only one of
the murders. Parker, 498 U.S. at 316-17. In Parker itself,
therefore, the initial presumption that the trial judge consid-
ered all mitigators was only a starting point. The presumption
was not — and is not — conclusive.
Furthermore, the Parker presumption is easily rebuttable.
As Justice O’Connor wrote in her Eddings concurrence, the
qualitatively different nature of a death sentence requires
reviewing courts “to remove any legitimate basis for finding
ambiguity concerning the factors actually considered by the
trial court.” 455 U.S. at 119 (O’Connor, J., concurring). As a
result, if there is any legitimate reason to believe that the trial
judge excluded a mitigating factor from her consideration,
then we should remand for resentencing. The consequences of
error in a death case are too great to allow for speculation or
fudging.
In the end, then, the Parker presumption is merely a rule
for allocating burdens, which will determine the outcome only
if the defendant or habeas petitioner offers no legitimate rea-
son to doubt its validity in a particular case. If, however, a
habeas petitioner can point to any legitimate evidence in the
record that indicates the trial judge’s exclusion of any factor
LOPEZ v. SCHRIRO 7351
or evidence, then this court should grant the writ and remand
for resentencing.
III
In this case, Lopez offers two theories to rebut the Parker
presumption. First, he points to one instance in the record in
which the trial judge stated that she would consider only those
mitigating factors that were presented during the aggravation/
mitigation hearing, impliedly to the exclusion of mitigating
evidence adduced at trial. Lopez argues that that one state-
ment should suffice, per Justice O’Connor’s admonition
against speculation, to undermine this court’s confidence in
the trial judge’s Eddings compliance.
As the majority correctly concludes, Lopez takes that state-
ment out of context. The trial judge’s only point was that she
would, consistently with Lopez’s motion to strike, ignore cer-
tain statements that were included in the presentence report.
As she made clear at several other points in the proceeding,
the trial judge did not mean to imply that she would neglect
mitigating evidence adduced at trial. The statement that Lopez
emphasizes, therefore, does not introduce speculation or con-
fusion when it is read in the context of the entire trial record.
Lopez’s first attempt to rebut the Parker presumption fails.
But Lopez offers a second theory, which is more compel-
ling. Lopez directs our attention to Chief Justice Feldman’s
separate concurring opinion in the Arizona Supreme Court’s
decision of his direct appeal, which noted that the trial judge
failed to make a statutorily required finding as to the potential
mitigating effect of Lopez’s mens rea. State v. Lopez, 174
Ariz. 131, 145-46, 847 P.2d 1078 (1992) (Feldman, C.J., spe-
cially concurring). In his separate opinion, Chief Justice Feld-
man noted that A.R.S. § 13-703(D) requires trial judges to
articulate specific findings with respect to any statutory miti-
gating factor that is present in the case. He also noted that the
statute lists as a mitigating factor “ ‘any of the circumstances
7352 LOPEZ v. SCHRIRO
of the offense.’ ” Id. at 145 (quoting A.R.S. § 13-703(G)).
Chief Justice Feldman then observed that a highly relevant
circumstance of Lopez’s offense was the possibility that
Lopez “may never have formed an intent to kill.” Id.
Contrary to the statutory articulation requirement, Lopez’s
trial judge never made a specific finding as to whether Lopez
did, in fact, intend to kill Anthony or as to whether Lopez’s
lack of specific intent was or was not sufficiently mitigating
to call for leniency. Because the trial judge did not articulate
a specific finding related to the statutory mitigating factor of
Lopez’s intent, Chief Justice Feldman wrote that he preferred
to remand the sentence for entry of that finding.
In our determination of whether the trial judge actually
considered all of Lopez’s proffered mitigating theories, the
Arizona Chief Justice’s opinion is highly relevant. The trial
judge’s failure to comply with statutory articulation require-
ments indicates that she might have failed to consider Lopez’s
lack of specific intent as a mitigating factor in the § 13-703
balance. That is, if the trial judge had determined either that
Lopez actually intended to kill Anthony or that Lopez’s lack
of specific intent to kill was insufficiently mitigating to call
for leniency, then she should have articulated a § 13-703(D)
finding to that effect. Because the trial judge did not make any
such finding, we must conclude that one of two things hap-
pened: either she made a state statutory error by failing to
enter a required finding or she made a federal constitutional
error by failing to consider intent as a mitigating factor.1
1
The majority here concludes: “Of course, the trial court did not specifi-
cally discuss any of the mitigating evidence that Lopez presented, so a
failure to discuss this factor does not necessarily indicate it was not con-
sidered.” Maj. Op. at 7335. As should be clear from this discussion and
from Chief Justice Feldman’s opinion, the failure to make an intent find-
ing, unlike the failure to make findings related to non-statutory mitigators,
is a legal error, not mere churlishness. That failure, therefore, has far more
significance than the majority opinion assigns to it.
LOPEZ v. SCHRIRO 7353
I would conclude that the latter possibility is the more
likely, for two reasons. First, as noted, Eddings requires us to
remand if there is any legitimate basis for finding that the sen-
tencer neglected a mitigating factor. Even taken alone, the
trial judge’s statutory failure raises some ambiguity as to
whether she included Lopez’s mens rea in her aggravation/
mitigation balance. Because we should err on the side of cau-
tion, avoiding speculation, the statutory failure alone is
enough to justify a remand.
Second — and more compellingly — there is a strong com-
monsensical likelihood, which gains support from the record,
that neither the trial judge nor the state Supreme Court
believed that intent should count as a mitigating factor. At the
time of Lopez’s sentencing, the United States Supreme Court
had recently decided Enmund v. Florida, 458 U.S. 782(1982), and had even more recently decided Tison v. Arizona,
481 U.S. 137 (1987). Both of those cases considered the role
that a defendant’s intent should play in an Eighth Amendment
determination of whether the death penalty is an excessive
punishment for a particular defendant. Specifically, Enmund
held that, under the Eighth Amendment, the defendant must
have a general intent to kill before he may be given a death
sentence. Tison then clarified Enmund, holding that a reckless
disregard for someone’s life, combined with an intent to
engage in conduct that endangers that person’s life and ulti-
mately results in his death, is sufficient to allow for the death
penalty.
As the federal district court found in this case, there can be
little doubt that Lopez’s intentional child abuse included a
reckless disregard for Anthony’s life, sufficient to satisfy
Eighth Amendment requirements under Tison. But the conclu-
sion that Lopez had a sufficiently culpable mens rea to satisfy
Tison is not the same as the conclusion that the holistic cir-
cumstances of the crime and of the defendant, taking a limited
mens rea into account, justify a death penalty. That is, the
defendant’s intent should play a dual role at the sentencing
7354 LOPEZ v. SCHRIRO
phase. Intent is relevant in the first instance to determine
whether the death penalty is even on the table, and it is rele-
vant in the second instance to determine whether, on balance,
the aggravating and mitigating characteristics of the defendant
and the crime militate in favor of (or against) leniency. The
individualized analysis that Eddings requires must include
holistic analysis of whether the characteristics of the defen-
dant and the circumstances of the crime — including the
defendant’s mens rea — justify a death penalty.
In this case, the record strongly implies that the trial judge
considered Lopez’s intent argument only in its first role, as a
Tison challenge. The Arizona Supreme Court then repeated
that error by neglecting the argument altogether, presumably
because the court assumed that intent was no longer relevant
in light of Lopez’s failure to bring a Tison challenge on direct
appeal.
A
The trial judge’s only reference to Lopez’s intent was her
statement that Lopez “willfully and intentionally physically
abused the child entrusted to his care and caused his death.”
This statement makes perfect sense as a Tison finding; it
clearly concludes that Lopez intended to engage in conduct
that endangered Anthony’s life, and it clearly concludes that
the dangerous conduct caused Anthony’s death. Under Tison,
that is all that the Eighth Amendment demands.
As Chief Justice Feldman concluded, however, the trial
judge’s statement falls far short of a § 13-703(D) finding.
First, the grammar of the statement makes it difficult if not
impossible to determine whether the intent finding attaches
only to abuse or also to homicide. That is, the trial judge
might have meant only that Lopez willfully and intentionally
abused Anthony and that the intentional abuse actually
(though perhaps unintentionally) caused Anthony’s death. On
the other hand, she may have meant that Lopez willfully and
LOPEZ v. SCHRIRO 7355
intentionally physically abused Anthony and willfully and
intentionally caused Anthony’s death.2 Because of its phras-
ing, the finding is, as Chief Justice Feldman believed, too
ambiguous to satisfy § 13-703(D). The judge’s statement does
not draw a clear conclusion as to whether Lopez intended for
his son to die.
Second, the statement does not, as § 13-703(D) requires,
include any articulation of the finding’s effect on the overall
§ 13-703 balance. That is, even assuming that the trial judge’s
statement sufficiently clarified that Lopez did, in fact, intend
to kill his son, the trial judge should also have stated —
explicitly on record — the resulting conclusion that Lopez’s
proffer failed to provide a mitigating circumstance. In other
words, if the trial judge had considered Lopez’s argument as
a mitigating factor — and not just as a Tison challenge — she
would have said more.
2
Interestingly, the sentencing transcript and the minute entry, both of
which include the intent finding, punctuate the finding slightly differently;
an important comma is missing from the minute entry. In the sentencing
hearing transcript, the trial judge is quoted with the following commas:
“[T]he court finds beyond a reasonable doubt that the defendant, the father
of the child, Anthony, willfully and intentionally, physically abused the
child entrusted to his care and caused his death.” In the minute entry, how-
ever, the trial judge wrote: “THE COURT FINDS, as to Count 2, FIRST
DEGREE MURDER, beyond a reasonable doubt that the defendant, father
of the child Anthony, willfully and intentionally physically abused the
child entrusted to his care and caused his death.” The comma following
“willfully and intentionally” in the sentencing transcript gives that phrase
an independent and lasting significance, such that it might be read to
attach to both halves of the following phrase. The absence of the comma
in the written order is then significant since “willfully and intentionally”
becomes a seamless part of the immediately following phrase, “physically
abused the child entrusted to his care.” That phrase is then separated from
the murder finding by the conjoining “and,” such that the “willfully and
intentionally” language might not carry over the “and” to attach to the
homicide. Reading the minute entry, which is the finding that the judge
herself might have been involved in punctuating, it seems highly possible
that the intent finding attached only to abuse, not to murder.
7356 LOPEZ v. SCHRIRO
In sum, the trial transcript raises a real possibility that the
judge took Lopez’s argument only as a Tison challenge, fail-
ing to consider the same argument in its second role as a stat-
utory mitigator. Indeed, the transcript provides no support—
except by speculation—that the trial judge specifically con-
sidered mens rea as a mitigating factor.
B
On direct appeal, the Arizona Supreme Court’s majority
opinion implicitly confirmed this view of the trial record and
ultimately repeated the error. The Supreme Court’s opinion
strongly implied that the majority found no specific intent to
kill, but the opinion proceeded to exclude that finding from its
consideration of mitigating factors.
1
Although the Arizona Supreme Court made no specific
intent finding,3 the majority opinion did strongly indicate its
belief that Lopez did not intend to kill Anthony. The court’s
implication to that effect came in its analysis of a statutory
aggravating factor that was based on the finding that Lopez
was in a “heinous and depraved state of mind when he beat
Anthony.” Lopez, 174 Ariz. at 144. As the Supreme Court
noted, there are five circumstances that may support a finding
of heinousness and depravity: “(1) the murderer’s relishing of
the murder; (2) the infliction of gratuitous violence on the vic-
tim; (3) the needless mutilation of the victim; (4) the sense-
lessness of the murder; and, (5) the helplessness of the
victim.” Id. (citing State v. Gretzler, 135 Ariz. 42, 52, 659
P.2d 1, 11 (1983)). The first three of those factors, if present,
would certainly demonstrate a specific intent to kill; only
someone intent on killing would relish the act, gratuitously
beat the victim, and needlessly mutilate the body. But the last
3
As noted, Lopez did not raise a Tison challenge on direct appeal. The
Supreme Court, therefore, did not even make a specific Tison finding.
LOPEZ v. SCHRIRO 7357
two circumstances — the senselessness of the murder and the
helplessness of the victim — do not indicate anything about
the defendant’s specific intent. A vehicular manslaughter of
an infant passenger, for example, clearly would involve the
senseless death of a helpless victim without involving a mali-
cious intent on the part of the intoxicated driver.
For our purposes, it is therefore highly relevant that the
Arizona Supreme Court relied solely on the last two factors
when upholding the finding of heinousness and depravity in
Lopez’s case. The court’s conclusion that none of the first
three factors were present in this case strongly implies that the
court found little to no evidence of specific intent to kill. Id.In fact, the evidence that the Arizona Supreme Court cited to
support its finding of senselessness was the very evidence that
Chief Justice Feldman cited when arguing that Lopez proba-
bly did not intend to kill his son. In the words of the Supreme
Court’s majority opinion: “The murder of Anthony was sense-
less. Lopez admitted that after he had given Anthony a bath
and was putting lotion on him, the infant ‘peed, so I smacked
him.’ ” Lopez, 174 Ariz. at 144. This finding is exactly the
same as the concurring opinion’s finding that “the most prob-
able explanation for the child’s death was [not that Lopez
intended to kill Anthony, but rather] that Defendant became
enraged, lost control, and beat the child quite seriously.” Id.
at 145 (Feldman, C.J., specially concurring). In short, the
Supreme Court majority apparently could not support the
aggravating factor of heinousness and depravity by reference
to evidence of intent; on the contrary, the majority opinion
implicitly agreed with the concurrence’s view that the murder,
while senseless, was likely unintentional.
The upshot of this discussion is that the Arizona Supreme
Court’s logic confirms the view that this case probably
involved — and the trial judge probably found — intentional
abuse resulting in death, not intentional murder. Although
Lopez’s mens rea was sufficiently culpable to allow a death
sentence under Tison and to support a finding of heinousness
7358 LOPEZ v. SCHRIRO
and depravity, neither of the state courts found that Lopez
actually intended for his son to die.
2
After implicitly accepting that Lopez did not intend to kill
his son, the Arizona Supreme Court’s majority opinion then
completely excluded that factor from its consideration of miti-
gating evidence. The majority opinion noted only that “[t]he
vast majority of the mitigation evidence presented by Lopez
centered on his being a good parent and on the fact that he
cared for children and never acted inappropriately with them.”
Lopez, 174 Ariz. at 145. The opinion then easily disposed of
that mitigating argument — affirming the trial court’s rejec-
tion of Lopez’s character evidence — by noting that Lopez
had another conviction for child molestation, which was
before the trial judge at the time. But the Arizona Supreme
Court’s review and rejection of Lopez’s character evidence
comprised its entire consideration of mitigating factors. In the
three paragraphs in which the majority opinion considered
mitigation, there is not a single mention of Lopez’s mens rea.
The absence of Lopez’s intent argument from the Supreme
Court’s analysis is particularly telling in light of the special
concurrence. The entire raison d’etre of Chief Justice Feld-
man’s opinion was to point out that § 13-703(G) required the
trial judge to consider Lopez’s mens rea as a mitigating fac-
tor. The majority opinion completely (though silently)
rejected that argument. As noted, however, the majority
implicitly agreed with — and certainly made no effort to rebut
— the concurrence’s conclusion that Lopez probably did not
intend to murder his son, thereby indicating that the basis for
disagreement between the majority and the concurrence could
not have been the factual conclusion. Rather, as indicated by
the majority’s complete failure to include intent in its discus-
sion of mitigating evidence, the basis for disagreement must
have been a question as to whether mens rea counts as a statu-
tory mitigator at all. The majority of the Arizona Supreme
LOPEZ v. SCHRIRO 7359
Court apparently believed that it did not. As previously noted,
that belief was not unfathomable at the time, given that the
United States Supreme Court had recently given mens rea a
unique role in death penalty decision making. The Arizona
Supreme Court might have believed that Enmund and Tison
removed mens rea from the aggravation/mitigation balance,
giving that factor an entirely separate role.
Nevertheless, by excluding Lopez’s intent argument from
its consideration of mitigating factors, the majority opinion
committed an even clearer Eddings violation than the trial
court. Although the trial transcript does not include any listing
of mitigating factors — thereby making it somewhat difficult
to determine which factors actually entered the trial judge’s
thought process — the Supreme Court’s majority opinion spe-
cifically mentions the mitigating factors that it considered and
clearly neglects Lopez’s (and Chief Justice Feldman’s) intent
argument.
C
In conclusion, Chief Justice Feldman’s concurring opinion
sheds important light on the trial judge’s and the majority
opinion’s thought processes. Neither the trial court nor the
appellate court found that Lopez did intend to kill Anthony;
the Supreme Court’s majority opinion implied that Lopez
probably did not intend to kill Anthony; and neither court
made any finding as to the role that Lopez’s potential or
actual lack of intent played in its analysis of mitigating fac-
tors. Because a finding as to mitigation is statutorily required
whenever the courts consider mens rea as a mitigating factor,
the failure to make the required findings is sufficient in itself
to rebut the Parker presumption that the courts actually con-
sidered Lopez’s proffer. Furthermore, in this case, the record
indicates that both the trial judge and the Arizona Supreme
Court took Lopez’s intent argument only as a Tison challenge,
neglecting to reevaluate the same argument in its second role
as a mitigating factor. There is legitimate — indeed, strong —
7360 LOPEZ v. SCHRIRO
record evidence to support the conclusion that both courts,
contrary to Eddings, failed to consider Lopez’s mens rea in
the § 13-703 balance.
Particularly given Justice O’Connor’s admonition against
speculation, I would conclude that Lopez has demonstrated an
Eddings violation.
IV
The final question is whether, under AEDPA, the state
courts’ failure to consider intent as a mitigating factor consti-
tutes an “objectively unreasonable,”4 rather than simply an
“incorrect or erroneous,” application of Eddings. See Lockyer
v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003) (citing
Williams v. Taylor, 529 U.S. 362, 410, 412, 120 S.Ct. 1495(2000)). In this case, there can be little doubt that it does.
Eddings held, without qualification, that due process
requires a sentencer to consider all mitigating factors that a
defendant proffers. 455 U.S. at 114 (“The sentencer, and the
[appellate court] on review, may determine the weight to be
given relevant mitigating evidence. But they may not give it
no weight by excluding such evidence from their consider-
ation.”). The Eddings opinion also relied on Lockett v. Ohio,
438 U.S. 586 (1978), which explicitly held that the sentencer
must consider “any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” 438 U.S.
4Because neither the trial judge nor the Arizona Supreme Court made
any specific mention of the Eddings standard, I will not analyze the ques-
tion under AEDPA’s “contrary to” clause. See 28 U.S.C. § 2254(d)(1).
Although it appears that the state courts applied an entirely incorrect legal
standard by assuming that intent is not a mitigating factor under Eddings,
I cannot conclude with certainty that they did so. I will therefore confine
my analysis to the stricter standard, which allows reversal only if the state
courts’ decisions “involved an unreasonable application” of the correct
federal rule. Id.LOPEZ v. SCHRIRO 7361
at 604. There is no potential for reasonable minds to differ on
the question of whether the defendant’s intent falls within the
scope of Eddings and Lockett. It does.
The dual role that mens rea must play in death penalty
cases does not undermine this conclusion; in fact, it strength-
ens it. The fact that the Eighth Amendment contains a mini-
mum culpability requirement demonstrates the critical
importance of the defendant’s mens rea in a death penalty
decision. Although intent’s dual role makes it understandable
that a sentencing judge might fail to switch hats after making
an Enmund finding, the dual role does not make the same fail-
ure reasonable. Even after establishing eligibility for the
death penalty, Eddings clearly requires the sentencing judge
to continue evaluating the whole crime, including mens rea,
to determine whether the death penalty is actually appropriate
for the individual defendant.
In this case, the applicable state law and the arguments
presented at sentencing make the state courts’ failures all the
more unreasonable. First, to the extent that the Lockett
requirement might have been ambiguous, the same require-
ment was codified in Arizona’s criminal statutes. As Chief
Justice Feldman noted, A.R.S. § 13-703(G) specifically
requires Arizona trial judges to consider “any of the circum-
stances of the offense.” The trial judge’s neglect of Lopez’s
mens rea, therefore, was not only a misapplication of
Supreme Court precedent but also a defiance of state statute,
enhancing the unreasonableness of the Eddings violation.
Second, Lopez clearly proffered — indeed, emphasized —
his mens rea as a mitigating factor. Although Lopez focused
primarily on his good character during the aggravation/
mitigation hearing, his counsel focused almost exclusively on
intent throughout the sentencing hearing. In fact, in his last
statement to the trial judge before the sentence was imposed,
Lopez’s attorney said:
7362 LOPEZ v. SCHRIRO
I think the one single most important thing here, in
this case, is that there’s been no showing, at all, that
George ever intended that baby to die[.] . . . I would
say that everything points to the contrary. That if that
were his intent, there would be different facts before
you and, under these circumstances, I think he’s
going to be punished enough by getting the sentence
that the Court has to impose.
Given that Lopez’s intent argument was the last thing — and
“the one single most important thing” — that his attorney
offered in mitigation, the trial judge’s and the Arizona
Supreme Court’s failure to consider it was objectively unrea-
sonable.
I therefore would conclude that Lopez is entitled to relief
under AEDPA on his certified Eddings claim, and I would
grant the writ of habeas corpus with respect to that claim,
remanding his case to the Arizona courts for resentencing.