Robert Henry Moormann v. Dora B. Schriro ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HENRY MOORMANN,  Nos. 08-99035
Petitioner-Appellant, 12-15395
v.
 D.C. No.
2:91-CV-01121-
DORA B. SCHRIRO,
Respondent-Appellee. ROS
 OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted
February 27, 2012—Phoenix, Arizona
Filed February 28, 2012
Before: Mary M. Schroeder, M. Margaret McKeown, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Schroeder
2539
MOORMANN v. SCHRIRO 2541
COUNSEL
Julie Hall, Oracle, Arizona, for petitioner-appellant Robert
Henry Moormann.
John Pressly Todd, Deputy Attorney General, Phoenix, Ari-
zona, for respondent-appellee Dora B. Schriro.
2542 MOORMANN v. SCHRIRO
OPINION
SCHROEDER, Circuit Judge:
Robert Moormann applies for a stay of execution and per-
mission to file a second or successive habeas petition in fed-
eral district court. See 28 U.S.C. § 2244(b)(3). Moormann was
convicted in 1985 of the first-degree murder of his adoptive
mother, Roberta Moormann, and sentenced to death. The
murder took place in a Florence, Arizona motel room while
Moormann was on a furlough from the state prison where he
was serving a sentence of nine years to life for kidnapping.
After stabbing and suffocating Roberta to death, he dismem-
bered the body and disposed of it in trash bags. He is sched-
uled to be executed on February 29, 2012.
His case has already been before us twice. The facts and
procedural background are fully contained in our prior opin-
ions. See Moormann v. Ryan, 628 F.3d 1102 (9th Cir. 2010);
Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005). We
summarize what is relevant to this proceeding.
In 2005, in Moormann v. Schriro, we considered an appeal
from the denial of Moormann’s first habeas petition pursuant
to 28 U.S.C. § 2254, where he had raised a number of claims
of ineffective assistance of counsel in connection with his
state court trial and appeal. The claims had been considered
procedurally defaulted under Arizona law by the state courts,
and by the district court, because he had not raised them in his
state court appeal. We affirmed with respect to most of his
claims, but observed that the claims of ineffective assistance
of counsel were not timely litigated in state court because of
a conflict of interest that established cause for the default. We
remanded those that appeared colorable to the district court to
determine whether there was prejudice to excuse the default.
426 F.3d at 1059-60.
In our second opinion five years later, we considered the
ineffectiveness issues that the district court, after the remand,
MOORMANN v. SCHRIRO 2543
had certified for appeal. We held there was no prejudice
shown either for the claim that his counsel should have pur-
sued a defense that Moormann acted impulsively, or for the
claim that his counsel should have called more mitigation wit-
nesses. 628 F.3d at 1114.
Moormann has asked this court for permission to file a suc-
cessive habeas petition, or, in the alternative, to have this
court recall the mandate of our 2010 opinion so that he can
file a belated Rule 60(b) motion in the district court. The dis-
trict court in the meantime has considered the merits of his
60(b) motion and denied it, so he has appealed that ruling. We
consolidate the two proceedings for purposes of decision.
On February 27, 2012, the Arizona Supreme Court denied
Moormann’s February 26, 2012 motion for stay of execution
and petition for review from the Pinal County Superior
Court’s February 22, 2012 order denying a hearing on mental
retardation and denying Moormann’s other claims as pre-
cluded. We are satisfied that Moormann’s claims now before
this Court are fully exhausted.
The standard Moormann must meet to file a second or suc-
cessive petition is very high. Under 28 U.S.C. § 2244(b)(2),
this court must dismiss his request unless:
(A) [he] shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on col-
lateral review by the Supreme Court, that was previ-
ously unavailable; or
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exer-
cise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
2544 MOORMANN v. SCHRIRO
dence that, but for constitutional error, no reasonable
factfinder would have found [Moormann] guilty of
the underlying offense.
28 U.S.C. § 2244(b)(2).
It is similarly difficult to convince an appellate court to
recall its mandate for the filing of a new proceeding after an
appeal has long become final. We do so only in extraordinary
circumstances. Carrington v. United States, 503 F.3d 888,
891 (9th Cir. 2007).
[1] The immediate relief requested is a stay of execution.
A federal court will only grant a stay of execution where the
inmate seeking the stay can show a significant possibility of
success on the merits. Hill v. McDonough, 547 U.S. 573, 584
(2006).
For the following reasons, we conclude Moormann has not
met these exacting standards.
[2] Moormann’s current diligent and thorough counsel are,
in essence, asking us to reopen his case so that he can pursue
a claim for habeas relief on two issues. The first issue is that
both of his lawyers in state court, the first having been coun-
sel for the direct appeal and the first postconviction proceed-
ing, and the second the counsel for the second state
postconviction petition, failed so utterly to raise a colorable
claim that either one or both of them effectively “abandoned”
Moormann. The Supreme Court has only recently recognized
that complete abandonment of representation can justify a
belated reopening of a matter considered closed. Maples v.
Thomas, 132 S.Ct. 912 (2012).
Moormann contends that he could not previously have
argued “abandonment,” because the Supreme Court only
recently recognized it as establishing cause for default, and in
this he is correct. He further argues that his lawyers’ conduct
MOORMANN v. SCHRIRO 2545
was similar to the conduct of the lawyers in Maples, and in
this he is incorrect.
In Maples, the lawyers ceased acting as Maples’ attorneys
without telling him; they did not serve as his agents in any
meaningful sense, and left him in a situation where he lacked
the assistance of any authorized attorney, so “that, in reality,
he had been reduced to pro se status.” Id. at 927. Signifi-
cantly, they failed to file a notice of appeal on his behalf. The
Court did not state whether this holding should apply retroac-
tively. See 28 U.S.C. § 2244(b)(2)(A) (new rule must be made
retroactive by the Supreme Court). But we assume, for pur-
poses of this opinion, that it should.
[3] Even assuming that Maples applies retroactively,
Moormann cannot make a prima facie showing that his post-
conviction counsel abandoned him within the meaning of
Maples. Moormann concedes that he was represented by two
lawyers in his state postconviction proceedings. The first, who
had been counsel on direct appeal and the first postconviction
petition, withdrew, so that the second could assert claims that
the first lawyer was ineffective on direct appeal, in addition
to other claims of constitutional violations. Moormann was
thus always represented by active counsel. The fault Moor-
mann attributes to the second lawyer is that he did not con-
duct investigations that would have revealed additional
evidence supporting Moormann’s mitigation claims of a diffi-
cult childhood, mental disabilities, and a possibly incestuous
relationship with the victim. Such alleged failure to investi-
gate may be a claim of serious negligence, but it is not “aban-
donment.” See Maples, 132 S.Ct. at 923. For this reason,
Moormann fails to state a prima facie claim under Maples.
Moreover, we actually considered the merits of essentially
the same claim in his first federal habeas petition, where he
argued that counsel on the direct appeal was ineffective
because he failed to conduct investigations that would have
revealed mitigating evidence. See Moormann v. Schriro, 426
2546 MOORMANN v. SCHRIRO
F.3d 1044. We remanded for the district court to consider the
claim and then held, on the merits, that “[t]he new material
would not have affected the result” of Moormann’s sentenc-
ing. Moormann v. Ryan, 628 F.3d at 1114. Moormann is not
now entitled to renew the same claim on the theory that he
was “abandoned” in the state court. Our analysis is thus not
affected by the pending Supreme Court decision in Martinez
v. Schriro, 623 F.3d 731 (9th Cir. 2010), cert. granted sub
nom. Martinez v. Ryan, 131 S.Ct. 2960 (2011).
The second issue that Moormann seeks to pursue is that he
is now mentally retarded and cannot be executed for that rea-
son. He relies on Atkins v. Virginia, 536 U.S. 304 (2002),
where the Supreme Court held that a person who is mentally
retarded may not be sentenced to death. Moormann’s trial
defense of insanity was rejected by the jury. The state, in its
responses to this petition and to Moormann’s petitions in the
state courts, has supplied documentation from the record that
shows that Moormann was diagnosed as having an IQ well
above 70 or as not mentally retarded in his early twenties in
1972, at the time of his trial in 1985, and again in 1998.
In support of his claim, he now relies on the affidavit of a
psychologist stating that one of two recently administered
tests shows Moormann’s IQ to be below 70. The psychologist
expressed the opinion that “if the time and resources are
obtained to conduct a formal assessment” Moormann would
qualify for the mental retardation diagnosis. Moormann seeks
more time for further tests that might more conclusively
establish that his IQ has been diminished by recent surgery
and a stroke in 2007.
[4] The Supreme Court in Atkins did not define mental
retardation as a matter of federal law. With respect to mental
retardation, as with respect to the related issue of insanity, see
Ford v. Wainwright, 477 U.S. 399, 416-17 (1986), the
Supreme Court left to the states “the task of developing
appropriate ways to enforce the constitutional restriction upon
MOORMANN v. SCHRIRO 2547
[their] execution of sentences.” Atkins, 536 U.S. at 317 (quo-
tation marks omitted); see also Schriro v. Smith, 546 U.S. 6,
6-8 (2005) (summarily vacating a Ninth Circuit order remand-
ing a habeas petition to the Arizona courts for a jury to make
the Atkins determination, and emphasizing that Atkins left
enforcement to the states).
[5] Moormann presented his mental retardation claim to
the Arizona Supreme Court last week. On February 24, 2012,
the Arizona Supreme Court denied Moormann’s motion for a
stay of execution. In that order, the Arizona Supreme Court
expressly noted that under Arizona law, a “defendant is not
statutorily deemed to have mental retardation unless he has a
full scale IQ of 70 or lower, and the onset of that condition
occurs before age eighteen.” A.R.S. § 13-753(K)(3), (5). That
court looked to Arizona’s statutory definition of mental retar-
dation, now termed “intellectual disability,” as a condition
entailing, among other things, the onset of an IQ below 70
before the age of 18. A.R.S. § 13-753(K). The Arizona
Supreme Court examined Moormann’s medical history and
determined that there was little likelihood that Moormann
could meet the state’s definition of mental retardation. State
v. Moormann, No. CR-85-0115-AP, Order at *4-*5 (Ariz.
Feb. 24, 2012) (“Mental retardation, as defined in § 13-
753(K)(3) begins in childhood and cannot develop later in
life.”). Arizona requires clear and convincing evidence in this
instance. See A.R.S. § 13-753(G) (a defendant with an IQ of
70 or lower (but above 65) must prove intellectual disability
by clear and convincing evidence); State v. Moormann, No.
CR-85-0115-AP, Order at *4 (Ariz. Feb. 24, 2012) (“Because
Dr. Weinstein intends to testify that Moormann’s recent IQ
scores were affected by his post-trial medical conditions, even
if credited, Dr. Weinstein’s affidavit does not constitute clear
and convincing evidence that Moormann had mental retarda-
tion in childhood, only that his recent medical problems have
lowered his IQ.”). We must defer to that conclusion under
Atkins. See Atkins, 536 U.S. at 317.
2548 MOORMANN v. SCHRIRO
Arizona’s definition is by no means unique. Both the
American Association on Mental Retardation (“AAMR”) and
the American Psychiatric Association (“APA”) define mental
retardation as requiring that the onset or manifestation of the
condition occur before the age of eighteen. See Atkins at 308,
n.3.
[6] Finally, even if Moormann could now conclusively
show that he is currently mentally retarded, he would be enti-
tled to habeas relief only if, at a minimum, the Arizona court
violated clearly established federal law. See 28 U.S.C.
§ 2254(d). There is no clearly established federal law that a
person who was not mentally retarded at the time of the crime
or the trial may nevertheless be exempted from the death pen-
alty pursuant to Atkins, because of subsequent mental deterio-
ration. The law appears to be to the contrary and does not
indicate retardation is a product of changing circumstances.
See Heller v. Doe, 509 U.S. 312, 323 (1993) (“Mental retarda-
tion is a permanent, relatively stable condition . . . .”). We
therefore cannot say that the Arizona Supreme Court’s deci-
sion is “contrary to,” or “an unreasonable application of,”
clearly established Supreme Court precedent. 28 U.S.C.
§ 2254(d). See also Ochoa v. Workman, 2012 WL 130718, at
*4-*5 (10th Cir. 2012) (holding that Oklahoma’s determina-
tion that mental retardation is a static condition is neither con-
trary to, nor an unreasonable application of, Atkins).
[7] For the foregoing reasons, we DENY Moormann’s
request to file a second habeas petition and his motion to
recall the mandate. We AFFIRM the district court’s denial of
the Rule 60(b) motion. We find that Moormann has failed to
show a strong likelihood of relief on the merits and so we
DENY his motion for a stay of execution.
AFFIRMED and relief DENIED.